Archive for the ‘Wild Animal’ Category

On The Loose

September 28, 2012

White v. Elias (Ohio)
(An individual who was kicked by an escaped horse brought an action against the horse owner and the property owner; the court ruled that there was no strict liability but that an issue of material fact as to the potential negligence of the defendants.)

A horse boarding facility released horses to graze in a pasture unsupervised.  However, because there was no food trough and because the pasture was bare, six-horse then escaped from the pasture and ended up on a neighboring property.  The neighbor saw the horses and called the plaintiff because she was familiar with the horses.  They asked if she could help lead the horses home.  However, when the plaintiff approached the group of horses, one of them kicked back and hit her in the face, causing serious and permanent injuries.

The plaintiff sued the horse owner and the owner of the property where the horse was boarded, alleging claims for strict liability and negligence.  The defendants moved for summary judgment, which the trial court granted.  The plaintiff appealed.

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Rough Neighborhood

September 24, 2012

Landings Association, Inc. v. Williams (Georgia) (The estate of a victim fatally injured during an alligator attack brought an action against the association that owned the property were the attack occurred; the Supreme Court of Georgia ultimately held that the victim assumed the risk of harm or failed to exercise ordinary care.)

The 83-year-old decedent was house sitting for her daughter and son-in-law at a planned residential development with a golf course.  Prior to the construction of the development, the land was largely marsh, where indigenous alligators lives and thrived.  As part of the development, the defendant association installed a lagoon system which allowed enough drainage to create an area suitable for residential development.  Alligators inhabited the area both before and after the development, although no person had ever previously been attacked.  The decedent went for a walk near one of the lagoons one evening in 2007 and was attacked and killed.

Under Georgia’s premises liability law, the estate of the decedent argued that the association failed to take reasonable steps to protect the decedent from being attacked.  The defendant filed a motion for summary judgment, which was denied by the trial court.  The defendant filed an interlocutory appeal, and the Court of Appeal affirmed the denial.  The defendant then filed a petition for a writ of certiorari with the Supreme Court of Georgia, which was granted.

The Supreme Court reversed the ruling finding that the decedent “had equal knowledge of the threat of alligators within the community.”  The Court explained that decedent “either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so.”  According to the Court,

“The record shows that, prior to the attack, [decedent] was aware that the property was inhabited by alligators. [Decedent’s] son-in-law testified that, on at least one occasion, he was driving with [decedent] on property in [the development] when he stopped the car to allow [decedent] to look at an alligator. [Decedent’s] son-in-law also testified that [decedent] was, in fact, aware that there were alligators in the lagoons at [the development] and that he believed that [decedent] had a ‘normal’ respect for wild animals.”

Like the Court of Appeal, the dissent from the Supreme Court questioned the extent of the knowledge of the danger by the decedent arguing that there was “no ‘competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [decedent’s] body was found.’”  However, the majority countered by stating that “A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.” The dissent also questioned the published policies of the defendant association and the effectiveness of its patrols, inspections, and security.  The dissent expressed that reasonable minds could differ, and that the issue of negligence, contributory negligence, and lack of care for one’s own safety should have been resolved by trial.

NOTE: Considering the discussion in the dissent, the significance of the claim, and the court’s tendency to allow matters of negligence to be determined by a jury as a matter of fact, this is a pretty bold decision.

Monkey Business

August 31, 2012

Howard v. Chimps, Inc. (Oregon)
(An intern at a chimpanzee sanctuary was injured when she was attacked by a chimpanzee;  she sued the sanctuary but the court dismissed her negligence and strict liability claims in light of the intern manual that she read and signed that included a waiver and release agreement;  the court also determined that there was no reasonable evidence of gross negligence.)

An intern at a chimpanzee sanctuary was injured just ten days after her start date.  A chimpanzee attacked her while she was cleaning a cage, and she brought an action against the sanctuary for negligence and strict liability.  Plaintiff thereafter moved for partial summary judgment, arguing that the waiver and release she signed was not enforceable.  The trial court denied that motion and later granted the defendant’s motion for summary judgment finding that the waiver and release precluded the plaintiff’s claims.  Plaintiff then appealed.

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