Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

January 21, 2008

WHEN WILD ANIMALS ATTACK

Houston Defense Attorney John Floyd discusses Potential Texas Tort Liability for Zoo Attacks. What if it happened in Texas?

THE ATTACK

It was last Christmas evening. Most of the visitors at the San Francisco Zoo had given way to the approaching chill of evening and left for a dinner meal with family and friends. Rather than spending the evening with his family as they wanted, 17-year-old Carlos Sousa joined two brothers, 23-year-old Kulbir Dhaliwal and 19-year-old Paul Dhaliwal, for a trip to the zoo.

What the young men did at the zoo is not clear. Initial news media reports cited a zoo visitor as saying she saw one or more of the young men taunting the caged animals. An ensuing investigation by the San Francisco Police Department, however, produced no evidence of taunting. Zoo officials have maintained from the outset that there had to be some provocation to prompt the 350-pound Siberian tiger named Titiana to escape from her grotto enclosure (jumping a 20-foot moat and scaling a 13-foot wall), stalk the young men, and attack all three. Sousa was killed in the attack and the two Dhaliwal brothers were severely mauled.

The immediate question following the tiger attack for San Francisco city and zoo officials was the issue of liability. Built in the 1930s, the zoo was operated by the city until 1993 when its day-to-day control was turned over to a nonprofit organization called the San Francisco Zoological Society. While this organization has been responsible for raising funds to keep the zoo operating, the city has still served as its landlord by contributing $7.5 million last year alone in taxpayer dollars to the zoo’s operations and upkeep.

While this public-private agreement specifies that the San Francisco Zoological Society is responsible for any loss of life or injury at the zoo, City Supervisor Gerardo Sandoval informed the media shortly after the attack that the city could be liable for millions of dollars in damages for this latest attack by Titiana. Zoo keeper Lori Komejan lost an arm in an attack by Titiana last year during a feeding session. She has already sued the city for and ten other unnamed defendants for negligence in connection with that attack.

It is understandable that Sandoval, an attorney, would immediately recognize the city’s liability.
"Whether the attack was provoked or unprovoked, there is no excuse for an animal getting out of its enclosure, and the law is pretty clear that in this situation the city will be held responsible," he told the media after the attack.

GENERAL TORT LAW PRINCIPLES

There is always strict liability for the owner or keeper when a wild animal attack. The owner or keeper of a wild animal is strictly liable for any harm the animal causes regardless of whether:

•The owner/keeper was aware of the animal dangerousness.
•The owner/keep had the animal well-trained.
•The owner/keeper took care to prevent harm by the animal.

Depending upon California tort law is, the city of San Francisco and the San Francisco Zoological Society will probably face strict liability for the Christmas tiger attack.

In addition to this tort liability, the San Francisco Zoological Society will probably face “strict liability” for maintaining what is known in common law as “abnormally dangerous conditions or activities.” First, the tiger’s enclosure had walls that were about 4 feet lower than those recommended by the Association of Zoos and Aquariums. Second, Titiana had a history of attacking people. Zoo visitors have an absolute right to be free from harm caused by “abnormally dangerous conditions or activities” at the public facility. The elements for this particular tort are:

•Existence of an abnormally dangerous condition or activity.
•Knowledge of the condition or activity.
•Damages.
•Causation.

The following are some defenses to a strict liability tort for abnormally dangerous conditions or activities as set out by William P. Statsky in his “Torts Personal Injury Litigation” (4th Ed. 2001):

1.The condition or activity was not abnormally dangerous.
2.The condition or activity was usual or natural for the environment in question.
3.The likelihood of serious harm from the condition or activity was small.
4.The danger in the condition or activity could have been eliminated by the use of reasonable care.
5.The value of the condition or activity to the community outweighed any possible danger.
6.A statute required or authorized the condition or activity.
7.Defendant was not aware of the condition or activity.
8.Defendant was not the cause in fact of the harm suffered by plaintiff.
9.The kind of harm that resulted was not foreseeable.
10.The person injured was not a foreseeable plaintiff.
11.The plaintiff was aware of the danger, understood it, and unreasonably assumed the risk.
12.Plaintiff consented to what the defendant did.
13.Plaintiff’s suit against the city for strict liability for abnormally conditions or activities committee by city employee may be barred by sovereign immunity.
14.Plaintiff’s suit against the city employee for strict liability for abnormally dangerous conditions or activities may be barred by public official immunity.
15.Plaintiff’s suit against a charitable organization for strict liability for abnormally dangerous conditions or activities may be barred charitable immunity.
16.Plaintiff failed to take reasonable steps to mitigate the harm caused when the defendant committed strict liability for abnormally dangerous conditions or activities; therefore, damages should not cover the aggravation of harm caused by the plaintiff under the doctrine of avoidable consequences.

Under this kind of tort, a plaintiff can recover compensatory damages for the harm caused by the defendant’s dangerous condition or activity. He can recover punitive damages only if he can show that the defendant was malicious or reckless in allowing the harm to occur.

Even if zoo officials were successful in defending against a strict liability for abnormally dangerous conditions or activities, the victims of Titiana’s attack could prevail on a “tort of negligence” by showing that their loss and/or injuries were caused by the “unreasonable conduct” of zoo officials. The elements of this tort are:

•Duty (an obligation to use reasonable care to avoid risks of injuring the person or property of others).
•Breach of duty (foreseeability of an accident causing serious injury outweighed the burden or inconvenience on the defendant to take precautions against the injury and defendant failed to take those precautions).
•Proximate cause (defendant is the cause in fact of the injury, the injury was the foreseeable consequence of the original risk, and there is no policy reason why defendant should not be liable for what he caused in fact).
•Damages (actual harm or loss)

The San Francisco Zoological Society – and probably the city of San Francisco as well – had a duty to take reasonable care to make sure that Titiana’s enclosure protected the visiting public from harm or injury. The fact that the enclosure’s protective wall was four feet below national standards establishes “foreseeability” - and bringing that deficient wall into compliance with national standards did not create either a burden or inconvenience sufficient to outweigh zoo officials’ duty to protect the visiting public. With those two elements established, the remaining two elements (zoo officials were the cause of the death/injuries that occurred and there was actual harm and loss of life) will be easy to establish.

As City Supervisor Sandoval said, there will be enough liability to go around in the San Francisco attack.

TEXAS LAW

What would happen if such an attack occurred in a Houston zoo?

A civil lawsuit for an animal attack in a zoo in the city of Houston must be brought under the Texas Tort Claims Act (“Act”). See: Tex. Civil Prac. & Rem. Code Ann. §§ 101.001 – 109 (Vernon 1997 & Supp. 1998). See also: City of Houston v. Morua, 982 S.W.2d 126 (Tex.App.-Houston [1st Dist.] 1998). In Morua a three-year old child visited the Houston Zoological Gardens with his family on March 31, 1996. The family was viewing a Mexican wolf exhibit. The child somehow went over or through a wooden fence and placed his hand into the exhibit through a chain-link fence. A wolf bit off one of his fingers and portions of two others. Id. at 127. The child’s parents sued the City of Houston “based on strict liability, negligence, gross negligence, and attractive nuisance.” Id.

The City attempted to have the lawsuit dismissed for lack of subject matter jurisdiction. The trial court denied the city’s motion to dismiss, and the trial court’s ruling was upheld on appeal. Id. The appeals court discussed the issue of subject matter jurisdiction under the Texas Tort Claims Act as follows:

“ … the City contends that the trial court erred in denying its motion to dismiss because the Moruas have failed to plead a cause of action within the waiver of governmental immunity created by the Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp. 1998). To explain the context of this dispute, we begin with an overview of the relevant statutes.

”Under the common law, a municipality is immune from liability only for its governmental conduct, not its proprietary conduct. See Simons v. City of Austin, 921 S.W.2d 524, 529 (Tex. App.--Austin 1996, writ denied). The legislature has statutorily defined almost every function of a municipality, including the operation of a zoo, as governmental, thus shrouding it with immunity from liability. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(13) (Vernon Supp. 1998). However, under the Act, a governmental unit waives its immunity for governmental functions to the extent it would be liable for personal injuries caused by a condition or use of tangible personal or real property if it were a private person. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 1997). Subchapter C of the Act sets forth several exceptions to the waiver of immunity found in section 101.021. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.051-.065 (Vernon 1997 & Supp. 1998).

”Chapter 75 of the Civil Practices and Remedies Code, commonly known as the recreational use statute, provides for limited liability to land owners who permit others to use their property for recreational purposes. TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001- .004 (Vernon 1997 & Supp. 1998). The statute specifies the standard of care, lower than that found at common law, owed by a landowner to those he allows on his property for recreational purposes. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(b) (Vernon 1997 & Supp. 1998) (stating that landowner must meet standard of care owed to a trespasser).” Id., at 128.

In 1995 the Texas Legislature amended both the Act and the recreational use statute. Act of May 26, 1995, 74th Leg., R.S., ch. 520, 1995 Tex. Gen. Laws 3276, 3276-77 (amending Tex. Civil Prac. & Rem. Code Ann. §§ 75.003 & 101.0528). Based on these amendments, the City of Houston argued that Morua’s claims were controlled by the recreational use statute because, as amended, the statute does not waive sovereign immunity under § 75.003(f). The Mouras, on the other hand, argued that the amended § 75.003(f) did not abolish the waiver of immunity found in § 101.021(2) but, rather, limited governmental liability under § 101.021(2). Id., at 129. The appeals court resolved this legal dispute as follows:

“The express wording of both section 101.058 of the Act and section 75.003(g) of the recreational use statute undermine the City's argument. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g), 101.058 (Vernon 1997). Both sections clearly state that, to the extent the recreational use statute limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under the Act, the recreational use statute, and its diminished standard of care, controls. See id. A plain reading of both sections reveals that, once it is determined that a governmental entity is liable under the Act, the recreational use statute may then operate to limit, not abolish, that liability if the facts of a particular case support its application. See id. According to the City, the legislature intended to abolish governmental unit landowner liability through the addition of section 75.003(f), which states that ‘This chapter does not waive sovereign immunity.’ TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(f). However, based on the plain meaning of sections 75.003(g) and 101.058 outlined above, an analysis of a governmental unit landowner's liability does not reach the recreational use statute unless it is first determined that the litigant's claims fall under the waiver of immunity created by the Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g), 101.058. Therefore, section 75.003(f) merely emphasizes that the recreational use statute limits preexisting liability, and does not, in and of itself, waive sovereign immunity or abolish the waiver of liability found in the Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(f). It would be nonsensical to assume that the legislature, by adding two separate provisions stating that the recreational use statute limits the liability of a governmental unit landowner, intended to abolish the waiver of governmental immunity created by section 101.021(2) of the Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g), 101.058. We hold that the recreational use statute does not bar the Moruas' claims made pursuant to section 101.021(2) of the Act, and that the trial court did not err in denying the City's motion to dismiss for lack of subject matter jurisdiction.” Id., at 130 [Emphasis original].

In effect, the Texas Tort Claims Act waives its sovereign immunity for, among other things, personal injury and death caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to a plaintiff according to Texas law. See: § 101.021(2).

Texas law provides that a premises owner may be liable for two types of negligence by failing to keep his/her premises safe: (1) that arising from a premises defect, and (2) that arising from an activity on the premises. See: Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

It must be stressed that “premises defect” and “negligent activity” are independent theories of recovery. Id., at 529. See also: City of Houston v. Harris, 192 S.W.3d 167, 177 (Tex.App.-Houston [14th Dist.) 2006).

Under Texas law, recovery based on a negligent activity theory requires that the injury be a “contemporaneous result” of the activity itself rather than by a condition created by the activity. Id. See also: Timberwalk Apartment Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998).

With respect to an injury resulting from a condition of the premises, including property on the premises, rather than conduct that occurred at the time of the injury, a plaintiff has only a premise defect cause of action. See: Olivo, supra, 952 S.W.2d at 527; Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 229-30 (Tex. 2004).

Finally, the appeals court in Harris held that the “Tort Claims Act's scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in section 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of tangible property. See State v. Tennison, 509 S.W.2d 560, 562, 17 Tex. Sup. Ct. J. 291 (Tex. 1974) (rejecting the argument that the Tort Claims Act ‘creates two entirely separate grounds of liability’ for negligent use or condition of real property and premise defect, but instead interpreting the premises defect provision to further limit the waiver of immunity for negligent use or condition of real property). Other Texas courts have recognized that to allow plaintiffs to characterize premises defect claims as claims caused by the negligent condition or use of personal or real property would render the Legislature's heightened requirements for premises defect claims meaningless.” Harris, supra, 192 S.W.3d at 174.

CONCLUSION

Based on the foregoing analysis of Texas law, a victim of a tiger attack in a Houston zoo could present a claim under the Texas Tort Claims Act seeking damages based on a “premises defect” theory. The tiger’s enclosure is a permanent fixture of the zoo’s real property. It conditions would be defective if they failed to meet national zoological standards, e.g., protective wall being lower than recommended standard. Without more facts, it would be difficult to state that a per se negligence claim could be made under Texas law based on the San Francisco zoo facts because the injury and death must be the “contemporaneous result” of a negligent activity. No one at this juncture can state with certainty that negligence was involved in the San Francisco attack. But clearly there was a “premises defect” at the San Francisco zoo giving rise to such a claim under Texas law.

SOURCE: General tort law information found in Statsky’s “Torts Personal Injury Litigation (4th Ed. 2001).

next...»

[ Back to top ]

© 2006 John T. Floyd III All Rights Reserved : Web Master Kevin Grey Lee