What happens if you hit a cow that wandered on the highway?

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What happens if you hit a cow that wandered on the highway?

My daughter was involved in an collision at night on a highway; she hit a cow. Both sides of the highway were fenced in and cattle were observed inside the fenced in area. The cattle owner was identified. Only minor injuries were sustained by the driver and passenger. The cow was solid black and the highway was a new black-top highway. I know free range laws apply in some of the areas in our state but this was not identified by the trooper as a farm to market road. Can I pursue action against the cattle owner? insurance is covering damages and hopefully for recovery of deductible but what about for minor injuries, lost time and wages?

Asked on December 14, 2016 under Accident Law, New Mexico

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

The cattle owner is liable for negligence for the cow wandering onto the highway.  Negligence is the failure to exercise due care (that degree of care that a reasonable cattle owner would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit for negligence against the cattle owner, it may be possible to settle the case with his/her insurance carrier.
When your daughter completes her medical treatment and is released by the doctor, she or you if she is a minor, should obtain her medical bills, medical reports, and documentation of wage loss.
Her personal injury claim filed with the cattle owner's insurance carrier should include those items.
Compensation for the medical bills is straight reimbursement. The medical reports will document the nature and extent of her injuries and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.  There isn't any compensation for lost time because that is too vague.  Damages (monetary compensation) must be definite and certain. 
If the case is settled with the cattle owner's insurance carrier, NO lawsuit is filed.
If your daughter is not a minor or you if she is a minor, are dissatisfied with settlement offers from the cattle owner's insurance carrier, reject the settlement offers and file a lawsuit for negligence against the cattle owner.
If your daughter is a minor, you will need to be appointed guardian ad litem to file a lawsuit on her behalf because a minor cannot file a lawsuit herself.
If the case is NOT settled, the lawsuit for negligence against the cattle owner must be filed prior to the expiration of the applicable statute of limitations or your daughter will lose her rights forever in the matter.


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