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FACTS
While driving in a rural area outside Phoenix at about 1:00 a.m. in July 19__, a nineteen-year-old man, John Smith, and two companions stopped to relieve themselves by the side of the road. Smith jumped over a small irrigation ditch into an empty field and was attacked from behind by a 145-pound chimpanzee that picked him up and bit his hand. The chimp followed Smith back to the car, jumped up on the hood and pounded on the car. Smith has suffered permanent injury to his hand.
The chimpanzee had escaped from a nearby primate preserve after intruders broke into the preserve and let the animals out of the cages. The animals were unattended at night, despite prior break-ins.
ISSUES
1. Is the primate center's strictly liable for the harm the chimpanzee caused?
2. Does the vandals' act in letting the chimpanzee out of its cage relieve the owner of liability under the rules of proximate cause?
SUMMARY
1. Yes.
2. Probably not. Research disclosed no proximate cause decision on comparable facts. Dicta indicating that a third person's willful or intentional fault is a superseding cause appear not to apply.
DISCUSSION
1. The chimpanzee's owner is strictly liable.
The possessor of a wild animal is liable for physical harm the animal does to another, even though the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm, if the harm results from the dangerous propensities that are characteristic of wild animals of that class. Rest. (2d) Torts sec. 507; Mills by Mills v. Smith (1983) 9 Kan.App.2d 80, 673 P.2d 117 (defendants strictly liable when their lion knocked a 21-month-old girl to the ground and grabbed her head in its mouth); Isaacs v. Powell (Fla.App. 1972) 267 So.2d 864, overruled on other grounds, 358 So.2d 26 (strict liability doctrine applied when chimpanzee in defendants' monkey farm grabbed the arm of a two-year-old boy who was feeding it, inflicting serious injury); Collins v. Otto (1962) 140 Colo. 489, 369 P.2d 564 (owners of a coyote held strictly liable when the coyote attacked and bit a four-year-old boy, seriously injuring him); Candler v. Smith (1935) 50 Ga.App. 667, 179 S.E. 395 (owner of private zoo strictly liable for injuries neighbor sustained when she tripped and fell while fleeing from an escaped baboon who came on her premises and started towards her "in a menacing manner"); Phillips v. Garner (1914) 106 Miss. 828, 64 So. 735 (owner of monkey absolutely liable when the monkey escaped, went to plaintiff's premises, and bit her on the leg).
Strict liability for damage done by dangerous animals, both domestic and wild, is an instance of the strict liability placed on those who, even with proper care, expose the community to a very dangerous thing. Keeping a wild animal subjects those in the vicinity to an abnormal risk. It is the exposing of others to an abnormal risk that justifies strict liability. Prosser, Law of Torts (5th ed.) sec. 76, at 541-542; Rest. (2d) Torts sec. 507, comment e.
The possessor of a domestic animal is generally subject to strict liability for harm the animal causes only if the possessor knew or had reason to know of a dangerous propensity or trait of the animal that is not characteristic of a domestic animal of that kind, and such knowledge must be proved. Prosser, supra, at 542; Vigue v. Noyes (1976) 113 Ariz. 237, 550 P.2d 234. On the other hand, knowledge of dangerous propensities is conclusively presumed in the case of wild animals. Rest. (2d) Torts, sec. 507, comment c; Collins, supra, 369 P.2d at 566; Candler, supra, 179 S.E. at 399; Phillips, supra, 64 So. at 736; Briley v. Mitchell (1959) 238 La. 551, 115 So.2d 851, 855. A chimpanzee is a wild animal ("of the class of animals ferae naturae") of known savage and vicious nature, and it is not necessary to show the owner's knowledge of its ferocity to hold the owner strictly liable for the harm it commits. Baugh v. Beatty (1949) 91 Cal.App.2d 786, 205 P.2d 671, 674-675.
A wild animal is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept. Rest. (2d) Torts sec. 506. The fact that a particular animal is kept socially for a valuable purpose does not prevent it from being a wild animal. The test is whether the animals are as a class recognized by custom as devoted to the service of mankind. Rest. (2d) Torts sec. 506, comment a. Chimpanzees are not by custom devoted to the service of mankind anywhere in this country. The fact that they are kept for educational or scientific purposes does not change their character as wild animals.
Although one harmed by a wild animal that has escaped its possessor's control is not barred from recovery by his own ordinary negligence, he is barred if he intentionally and unreasonably subjects himself to the danger the animal presents. Rest. (2d) Torts sec. 515; Prosser, supra, sec. 79, at 565-566; Isaacs, supra, 267 So. at 866-867; Baugh, supra, 205 P.2d at 675; Copley v. Wills (Tex.Civ.App. 1913) 152 S.W. 830, 831. Here Smith did not voluntarily and knowingly put himself in danger from the chimpanzee. He did nothing to bring the injury on himself, and his claim for damages is not therefore barred.
Research disclosed no Arizona cases ruling on the extent of liability for injuries caused by wild animals. Florida and Kansas have considered the question and have adopted the common law rule of strict liability stated above, rather than the minority view that liability should depend on the owner's negligence, taking into account the animal's nature. In Isaacs, the Florida court reasoned that the older and general rule of strict liability was more suited to the fast-growing, populous, and activity-oriented society of Florida. The court declared its reluctance to encourage the addition of another risk to the members of society, particularly when the risk is contributed by those who would, for profit, exercise their right to harbor wild animals and would increase the exposure to that risk by advertising. Similarly, the court observed that Florida had by statute abrogated the "one bite rule" of the common law relating to dogs, in effect imposing strict liability on the dog owner. The court noted that if it adopted a negligence basis for liability of a tiger's owner, for example, while the statute holds dog owners strictly liable, a "curious anomaly" would result. Isaacs, supra, 267 So.2d at 865-866. Arizona law also makes the owner of a dog that bites a person liable for damages regardless of the dog's former viciousness or the owner's knowledge of its viciousness. ARS sec. 24-521.
In Mills, the Kansas court held that the traditional strict liability rule was appropriate for injuries caused by wild animals because Kansas cases impose strict liability on owners of domestic animals with vicious propensities when the owners have knowledge of the viciousness. Id., 673 P.2d at 120. Arizona case law also imposes strict liability where a domestic animal's possessor knows of the animal's dangerous propensities. Vigue v. Noyes, supra.
The rationales on which the Florida and Kansas courts relied in their decisions to adopt a strict liability doctrine--reasons having to do with consistency in the law and considerations of public policy--apply equally in Arizona. It is unlikely that Arizona would reject the majority rule that a wild animal's owner is strictly liable for the harm the animal causes so long as the victim has not voluntarily brought the injury on himself.
2. The vandals' intentional act does not cut off liability.
The chimpanzee's owner may raise the defense that the vandals' act in releasing the chimpanzee from its cage is a superseding cause that releases him from liability. Even in cases where strict liability is imposed because the defendant's conduct has created an abnormal risk to the plaintiff, the sequence of events leading to the harm must have been such that it is not unfair to hold the defendant liable. Such situations are governed by the ordinary rules of legal causation. The dangerous animal's owner is liable for injuries even if there is an intervening cause if it is to be expected. Harper, "Liability Without Fault and Proximate Cause" (1932) 30 Mich.L.Rev. 1001, 1009, 1011. The Restatement (2d) of Torts takes the position that even unexpected innocent, negligent, or reckless conduct of third persons does not relieve a wild animal's possessor from strict liability for the resulting harm. Rest. (2d) Torts sec. 510. But the reporter noted that authority relevant to this section is sparse and indecisive. Id., Reporter's Note.
Decisions that have held the possessor of wild or dangerous animals strictly liable for attacks brought about by the deliberate interference of a third person are generally justified on the ground that the extraordinary risk of keeping such abnormal animals includes the likelihood that strangers will interfere with them, since it is so easily done, and thus the possessor's strict responsibility extends to the prevention of such an occurrence. Prosser, supra, sec. 79, "Extent of Liability," at 565; Harper, supra, 30 Mich.L.Rev. at 1011.
No cases were found directly addressing the question whether a wild or dangerous animal's possessor is strictly liable when intruders or vandals release the animal. Courts have held the possessor strictly liable on the following facts when a third person's contributory action was partly responsible for the plaintiff's injury.
In Vredenberg v. Behan (1881) 33 La.Ann. 627, a boy teased a bear chained to the corner of defendants' clubhouse by setting a small dog on it. The bear twisted its collar off and ran after the dog. It encountered plaintiff and injured him so severely that he died 21 days later. The court held that if the defendants were otherwise liable for the bear's acts, the boy's acts in provoking it would not affect that liability. Id., at 635.
In Briley v. Mitchell (1959) 238 La. 551, 115 So.2d 851, a policeman was gored while trying to recapture a wild deer that had escaped. The court relied on Vredenberg in holding the deer's owner strictly liable.
[I]t is not sufficient [to relieve defendant of liability] that defendant has done everything possible to prevent the escape of the wild animal in his custody and it is of no consequence that a third party may have caused the release of the animal."Security of the dangerous animal must be assured under all circumstances, for the gravamen of tort liability is the keeping of the animal . . . ." Id., at 855.Id., at 854.
In Baker v. Snell (1908) 2 K.B. 352, 825, an innkeeper kept a savage dog on his premises. One of his employees had the duty to let the dog out in the early morning and then chain it up again before any of the other employees came downstairs. One morning the employee, in an apparent "foolish and wanton act," brought the dog into the kitchen to test his belief that the dog would not bite anyone familiar with it. He let the dog go and said, "Go it, Bob." The dog then flew at plaintiff, a housemaid, and bit her severely. The county court judge held that the dog handler's act was an assault for which the defendant innkeeper was not liable and accordingly nonsuited the plaintiff.
The appellate court sent the case back for trial, holding "that the person so keeping [an animal known to be dangerous] is liable for the consequences . . . even though the immediate cause of damage is the act of a third party." Id., at 832.
[I]f the keeper of a dangerous animal keeps it at his own peril in all circumstances [it is absolutely immaterial] whether the injury arises from the actual negligence of the owner or from the act of a third person . . . . [T]he person who keeps [the fierce beast] is prima facie responsible for the injury . . . and such prima facie responsibility can be got rid of only . . . by showing that the escape was due to the plaintiff's own default, or perhaps was caused by vis major or the act of God. The wrongful act of a third person is no defense.A justice in the divisional court did not agree that the keeper's liability would extend to damage directly brought about through a third person's unauthorized and willful act. He said that if a thief, for example, were followed into the defendant's yard by a policeman, and the thief set the defendant's dog on the policeman, it could not be contended that the defendant would be liable since the damage would not be the result of the defendant's act. Id., at 354-355.Id., at 833-834.
Similarly, in Isaacs v. Powell, supra, the court stated that a third party's willful or intentional fault is a valid defense "provided such fault is of itself an efficient cause and is the sole cause" of the injury. Id., 267 So.2d at 866. In other words, if the trial court found on remand that the father's fault in holding his son up to the chimpanzee's cage was the sole efficient cause of his son's injuries, the father's fault would be a valid defense.
The dicta indicating that a third person's willful or intentional fault is a superseding cause and thus a valid defense has not been tested by the courts in comparable fact situations. But note that the dicta describe an extremely close causal connection between the independent act and the injury. The Isaacs court characterized the third person's act as "the sole efficient cause" of the injuries. The Baker court characterized the superseding act as "a criminal act" that "directly causes" the injury. In the hypothetical examples that are given, the defendant's possession of the wild animal is not viewed as the injury's cause. It is likely that the courts are trying to identify cases where the connection between the third person's willful intentional fault and the injury are so close that it would be unfair to hold the animal's keeper strictly liable.
That close connection does not exist here. The vandals' act in releasing the chimpanzee was not the "sole efficient cause" of Smith's injuries, as holding a child up to a cage would perhaps be, nor did the chimpanzee's release "directly cause" the injury, as would be the case if a thief set a dog on a policeman following him. The chimpanzee's release was foreseeable, because it is likely that strangers will interfere with such exotic animals and because the primate center had been broken into previously. The owner of a dangerous animal is liable for injuries even if there is an intervening cause, if it was to be expected.
CONCLUSION
The primate center's owner is strictly liable for the harm the chimpanzee caused under the common law rule that possessors of wild animals are strictly liable for the harm they cause unless the victim has knowingly and voluntarily brought the injury on himself.
Because the vandalism was foreseeable and because it is not likely that the owner can show that the vandals' act was the "direct" or "sole and efficient" cause of Smith's injuries, he probably does not have a valid defense to a strict liability action.