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Quote of the Day - Quite a zoo, isn't it? - George Phillips
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Get Out That Insurance Policy: San Francisco Zoo Likely Liable For Wrongful Death, Injuries

When tigers escape, ultimately killing and injuring people, a question down the line after the police investigation finishes will be:  who's liable?  We may be able to shortcut the entire inquiry immediately following, but it's helpful first to go through the exercise of the analysis.  You'll see the shortcut at the very end and get to cast your vote.

That initial question, however, presents a series of classic law school tort exam issues:  who owes a duty of care and what is that duty?  What is the cause of the accident?  The Zoo owes a duty to keep zoogoers safe, here run by the San Francisco Zoological Society jointly with the City of San Francisco.  That joint control exposes both the City and the Zoo to a claim for damages.  The cause is an open question at this point.

But before we stray too far, let's get back to the basics of tort law - the law of civil wrongs.  It's much different than contract law, which looks only to two main issues.  Was there a breach of contract and was someone damaged?  In contrast, tort law has five elements:  duty, breach of duty, proximate cause, actual cause and damages.

The last element, damages, is fairly straightforward.  One man was killed, two were injured.  No real question there.  For the remaining elements, the police investigation and the standards of the Association of Zoos and Aquariums come into play.  Those standards set the first element:  duty.

Apparently, according to news reports and the AZA itself, it recommends tiger enclosures be surrounded by 18 foot high walls.  According to San Francisco Zoo Director Manuel A. Mollinedo, the wall was only 12 ½ feet high.  He also said safety inspectors had examined the wall and never raised red flags about its height.  That admission may expose the AZA to liability if it accredited the San Francisco Zoo in violation of its own standards.

So, we know the duty of the Zoo was to build a wall 18 feet high but despite recent renovations the wall was only 12 ½ feet high.  Assuming those two facts as true, then we've established the first two elements, duty and breach of duty.  With the final element (damages) already in play, we have two elements to review:  proximate cause and actual cause.

Here's where things can get tricky, and the police and subsequent AZA inspections will come into play.  Add into the mix the stray shoe print on the tiger enclosure railing, evidence of the tiger's prior attacks and allegations that perhaps the three men taunted the big cat, and you've got yourself a law school exam all wrapped up in one event.

Let me briefly explain the remaining concepts we have to deal with here, and throw in at least one defense, if not two.  The defenses are interesting ones, because they involve the deceased and injured individuals.  The primary defense, if available, may involve something called an "intervening cause."  If present, then that defense may eliminate the Zoo and City's liability because the taunting intervened and actually created the very danger suffered by the individuals injured and killed.  Their action intervened in the causal chain, breaking the link between the breach of duty and damage suffered. 

In other words, if the individuals taunted the tiger, aggravating it to the point it was prompted to attack, then the Zoo and the City can argue that but for the taunting, the death and injuries would not have happened.  The defense is a complete out because it operates to break the causal chain.  All the other elements of the tort could be present, but for the behavior of the victims, the accidents would never have happened. 

The other defense, "assumption of the risk," is somewhat related, but likely not a viable defense here.  Assumption of the risk requires knowingly placing yourself in harm's way, like driving an Indy or NASCAR race car around a track.  As a driver, you know there are going to be wrecks, and just as likely that you'll be in one.  If an accident occurs, no court judge is going to listen to you complain that you got injured.  As a zoo visitor, you're just not in the same position as a race car driver.  It's reasonable to assume that the zoo has taken all the necessary precautions and you're not going to get mauled by a tiger.

Unless you aggravate that tiger, but then we're back to the intervening cause defense.

So, we have yet to look at proximate cause and actual cause.  Proximate cause can be shorthanded to be the "legal cause" of the damages suffered.  Typically it means that the escape of the tiger was "foreseeable."  It ties in somewhat with duty, because you can argue that when you build a wall below recommended standards, the escape of the tiger is certainly foreseeable, and thus the low wall is the proximate cause of the damage. 

The last test, the actual cause, shorthanded by lawyers as the "but for" test.  But for the low wall, would the tiger have jumped the fence and killed/injured the zoo visitors?   If you answer that question with a "yes," then you've got yourself a full-fledged tort, and you would hold the Zoo and the City liable and quite possibly, the AZA too. 

Any plaintiff's lawyer worth her salt will throw in a claim for punitive damages (something not covered by either the City or the Zoo's insurance policies)* and attempt to prove that they were "guilty of oppression, fraud, or malice," which is the standard in California to award punitive damages.  If, for example, the plaintiffs could show that the Zoo knew of the AZA 18-foot standard for walls, but simply built the wall at 12 ½ high to save money, then a jury would likely award punitive damages.  If, on the other hand, the Zoo simply misinterpreted the standard or legitimately thought that an extra-wide moat lessened the wall height requirement, then a jury may not award punitive damages. 

Finally, we have to throw in the mix the Zoo's prior knowledge of the tiger's propensity to attack humans.  According to reports, the tiger previously attacked a zookeeper during feeding.  In that case, if true, then an attorney would argue that the wall perhaps should have been much higher than 18 feet or the tiger removed from display altogether, for the public's safety. 

As you can see, this situation is no easy case for either the Zoo and the City or the plaintiffs.  But one thing is for sure:  we will see a lawsuit out of this tiger escape and changes will be made in the zoo enclosures for dangerous animals. 

Finally, just to confuse things even further, there's a doctrine called strict liability, that applies to both dangerous animals and ultrahazardous activities.  If it applies, which is likely, then the Zoo, the City and the AZA would be held liable because all the doctrine requires is two elements:  damages and responsibility.  The only defense is an intervening cause. 

If you're the jury, then how would you vote?


*  Insurance policies don't cover intentional acts, only negligent acts.  In order to recover punitive damages, you must prove intent, thus eliminating insurance coverage for the punitive damages, and quite possibly the underlying tort, as well.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, December 27, 2007 at 22:49 Comments Closed (1) |
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