Ordinary care means the law was followed and legal fence requirements were met. The question of responsibility regarding partition fences often arises among adjoining landowners. According to Devine, two Kansas attorney general opinions have stated adjacent landowners are responsible for fences bordering their property, whether they are raising livestock or not. In reality, she said the law requires a legal partition fence be built and maintained by landowners on both sides of the structure, as long as one person is using the land for grazing. Expenses to build and repair the fence are shared equally.
Liability enters the picture when there is disregard for the law or neglect.
Over the 132-year history of Kansas fence law, precedence has been set for determining when livestock owners are liable for damage done by animals escaping fenced areas. The courts often look to see if the owner was negligent in the care and custody of animals. Courts determine if reasonable care was taken and consider several factors including the quality and legality of the fence. Other considerations include whether the animals roamed outside of the fenced area prior to the specific incident and whether the owner fed and watered the animals. They also will assess whether the owner quickly tried to get the animals back in the enclosure and what caused them to run and escape.