Written by Andy Webb
Edited by Gary Reinhardt, Esq.
Conventional legal wisdom holds that an owner of a wild animal is strictly liable for injuries caused by that animal. Stated another way, “A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, his land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.” Section 507 of the Restatement (Second) of Torts. This rule stems from the idea that, despite taking reasonable and proper precautions, the owner of a wild animal is “exposing the community to the risk of a very dangerous thing” by owning the wild animal and by “engaging in an activity that subjects those in the vicinity, including those who come onto his property to an abnormal risk . . . [t]he possessor of a wild animal is strictly liable for physical harm done to the person of another.” W. Prosser & W. Keeton, Torts (5th ed. 1984).
Despite this “[v]enerable common law principle,” a decades-old Virginia Supreme Court case instructs Virginia courts to take a more nuanced and case-by-case analysis when examining liability stemming from the ownership of a wild animal. The Court examined the issue of keeping wild animals, and injuries caused therefrom, in Panorama Resort v. Nichols. 165 Va. 289, 182 S.E. 235 (1935). Panorama Resort was a hotel and resort on Skyline Drive in Page County, Virginia. The resort kept three bears caged on its property and “encouraged [the resort’s] guests and the general public to feed soft drinks, [ice cream,] etc. to the bears.” The bears’ enclosure was “a pen, about 100 feet long, forty feet wide, six or seven feet high, constructed of two lays of poultry wire and a heavier hog wire on the exterior.” Additionally, the enclosure “was not otherwise reinforced, was loose and sprung in places,” had no guard rail, and an entrance gate that “did not fit tightly.” The only warning posted on the enclosure read “NOTICE: DO NOT STAND CLOSE TO THE BEARS,” but the sign was only visible from one side of the enclosure.
On the day in question, the plaintiff and two companions, who may have been drunk at the time, approached the bear enclosure from the side opposite the warning sign. The plaintiff bought soft drinks from the resort to feed to the bears and was standing at the enclosure’s gate when injured. Plaintiff introduced evidence that one of the bears “sprung on the fence, pushed his paw through the wire enclosure and tore the plaintiff’s face, painfully and seriously injuring him.” Conversely, the defendant introduced evidence that the plaintiff admitted the “accident was due to the fact that ‘he was half shot and got too close to the bear pen’ or ‘fell up against the bear fence.’”
The trial court submitted the case to the jury and instructed them on the theory of strict liability. The instruction told the jury that it was not necessary for the plaintiff to prove the defendant guilty of negligence because, in keeping a wild animal, “the defendants were absolute insurers of the safety of the plaintiff, as their invitee, from attack; and that the contributory negligence or misconduct of the plaintiff, even if proven, would not prevent his recovery.”
The defendant appealed the case to the Virginia Supreme Court, which held the strict liability instruction improper. In coming to that conclusion, the Court noted that the issue of liability for the keeping of wild animals was one of first impression by the Virginia Court, but that there was “considerable direct authority and much dicta” supporting the trial court’s application of strict liability. The Court then went on to point to detractors of the strict liability theory, including a West Virginia case decided only five years prior. See Vaughan v. Miller Bros. “101”Ranch Wild West Show, 109 W. Va. 170, 153 S.E.2d 289 (1930).
In Ranch Wild West Show, the West Virginia Supreme Court noted that throughout the country the right to exhibit wild animals was universally recognized, and in Panorama Resort, the Virginia Supreme Court followed the West Virginia court’s logic. The Virginia court, quoting directly from Ranch Wild West Show acknowledged “The tiger, unrestrained, is no more dangerous than fire, water, electricity, or gas, uncontrolled,” and asked the rhetorical question, “Why discriminate against the owner of the animate menace?” After citing to other jurisdictions who had abandoned strict liability, or at least allowed for the application of contributory negligence in the wild animal context, the Court held that liability for the ownership of wild animals “should rest on negligence[, b]ut such keeper should exercise a very high degree of care in the manner and place of keeping such animals.” The Court resubmitted the case to the trial court to be tried based on this standard rather than the strict liability standard.
It may seem an unlikely proposition that, in modern times, injuries caused by a wild animal will end up in civil litigation, but, for example, in 2011 a Zanesville, Ohio man set free his collection of more than 50 wild animals, including 18 tigers and 17 lions, before committing suicide. In fact, exotic pets attributed to more than 75 deaths in the United States between 1990 and 2011 and there are currently more tigers kept as pets in the United States than exist in the wild. See “Owning Wild Animals: Stats on Exotic Pets” LiveScience, November 2, 2011 (https://www.livescience.com/16815-exotic-pets-wildlife-infographic.html).
In the event of such litigation in Virginia, The Virginia Model Jury Instructions applies the modified negligence standard articulated in Panorama Resort and states “The owner of a (name of particular wild animal) is charged with knowledge of its natural inclinations or characteristics and has a duty to use a high degree of care to keep it confided and restrained so as not to cause injury to others. If an owner fails to perform this duty, he is negligent.” 1-29 Virginia Model Jury Instructions – Civil Instructions No. 29.030. Therefore, when a wild animal causes injury to a plaintiff, an adjuster must analyze the specific characteristics of the animal and its likelihood of causing injury. An adjuster must also determine the manner and place in which the animal is confined. This is particularly applicable, given that Panorama Resort, and a majority of the case law upon which the Virginia Supreme Court relied in reaching its holding, dealt with the keeping of wild animals by a business. When an individual keeps a wild animal in area not normally of the kind where wild animals are held, the standards of confinement are likely higher than those imposed on corporate defendants who maintain wild animals at zoos and animal parks. Accordingly, an adjuster must look to both the wild animal’s inherent characteristics, as well as the entirety of the environment in which the animal is contained, from the physical enclosure to its general local. Despite the heightened standard articulated in Panorama Resort, a defendant can be successful in defending his case when he takes all reasonable and necessary precautions to enclose a wild animal, given that wild animal’s particular inclinations.