It appears that the tiger attack in the San Francisco Zoo may boil down to a case over plaintiffs’ conduct. New reports indicate that the two brothers mauled in the attack may have taunted the tiger, stood on the railings, and at least one may have been drunk at the time of the attack.
This week it was revealed that toxicology tests showed that Paul Dhaliwal had a blood alcohol level of 0.16 — twice the legal limit for driving. Paul Dhaliwal reportedly admitted to the father of Carlos Sousa Jr., 17, who was killed in the attack, that the three young men taunted the tiger. He alleged admitted that they yelled and stood on the three-foot metal railing.
A foot print was found a partial shoe print that matched Paul Dhaliwal’s shoe on top of the railing. Various witnesses have reported stated that they saw the men teasing and taunting the Tiger.
Reports further suggest that 24-year-old Kulbir Dhaliwal and Sousa also had alcohol in their blood as well as marijuana in their systems. Some papers are stating that Kulbir Dhaliwal told police that the three had smoked pot had been drinking vodka. As discussed below, this raises a good defense if the case is handled in negligence as opposed to strict liability.
The legal status of the San Francisco Zoo appears to be rather bad with litigation inevitable. The zoo’s director admitted earlier that a wall that separated the public from the zoo’s tigers is nearly 6 feet lower than initially reported — and nearly 4 feet lower than industry standards. In the meantime, the father of the teen killed by the tiger has accused of the zoo of negligence.
The zoo director said that the dry moat between the wall and the tiger exhibit is 33 feet, but the wall itself is 12 and a half feet, not 18 feet.
The police are reportedly looking into a shoe print on the inside of the enclosure and the possibility that the tiger escaped by latching on to a leg or other body part of one of the victims to escape.
The lower wall may explain the skepticism of experts over the theory that the tiger lept out of the enclosure. Experts said such an extraordinary feat would reduce possible liability by showing that it was unforeseeable and unprecedented.
Zoo attacks (sounds like a Fox special, I know) are not uncommon. Only a year ago, the National Zoo in Washington was briefly shut down after a clouded leopard escaped overnight and was found snoozing in another part of the zoo.
Under the common law, possessors are strictly liable for injuries causes by their wild animals. A Siberian tiger would certainly fit into that category. However, many states have passed special legislation to protect zoos from strict liability, often returning them to a standard negligence standard.
In a case related to this zoo in 1952, a state court ruled that strict liability would not apply to a man mauled by a bear. Arthur McKinney was bitten when he reached toward or into the bear’s cage. The court applied a negligence standard and found in favor of the zoo. McKinney argued on appeal that the common law rule of strict liability for wild animals should apply. He lost. The appellate court found that he would have to show a “dangerous or defective condition” of public property that officials should have known about and failed to repair. That could be the case with the inadequate enclosure but the men would still prefer a strict liability standard. They may argue that the state liability rules were overhauled since 1952 and thus a new standard could apply.
As a general rule, courts have rejected strict liability claims on the basis that this is a public enterprise as well as rejecting attractive nuisance claims for children injured. In Guzzi v. New York Zoological Soc’y, 182 N.Y.S. 257 (N.Y. App. Div. 1920), the court held that the society, which maintained the Bronx Zoo, would not be liable in strict liability or nuisance after a girl who crept under the cage of a bear.
The problem of the zoo is that it appears that this is a second attack by this tiger at this zoo. Families watched in shock in 2006 when Tatiana mauled a zoo keeper.
To make matters worse for the zoo, emergency personnel have complained that there was confusion and insufficient lighting in responding to the emergency call. The tiger arrived in San Francisco from the Denver Zoo on December 16, 2005.
The new allegations could raise a serious defense in a negligence case. Under the older common law rule (still followed in a couple of states) any contributory negligence — even one percent — was a total bar to recovery. Under this rule, the men would be barred. However, California follows a pure comparative fault rule. This is fortunate for a couple of reasons for the men. Under a partial or modified comparative rule, they would be barred from recovery if their negligence was over 50 percent. If they were drunk and taunting a tiger, the jury could well find them more at fault.
In a pure comparative system, the jury or judge allocates the percentage of responsibility and reduces the award by the percent of responsibility assigned to the plaintiffs. This would mean that the case could survive to a verdict and damages — though with a likely reduction given their own alleged misconduct.
For the full story, click here