“Living nativity” have long been the rage during the holidays, particularly as part of traditions like the one at St Mary’s Church on Holton Road in Wales. The scene includes live donkeys to the delight of the children. However, this year was marred by one donkey taking a bite out of one of the children — thereby bringing together two of my favorite themes: Christmas and torts. The case could come down to the question of a type of “one free bite” rule.
The Church in Wales apologized but noted “As generations of Barry children have learnt from riding donkeys on the local beach they are among the more stubborn and unpredictable of God’s creatures.” The spokesperson added an element of possible comparative fault to the incident by noting “We would remind children to treat all donkeys with care and respect and ask families to keep a watchful eye on younger children in particular when in the company of these much loved animals.”
The liability for animals has been a long controversy and is subject to different standards depending on the animals and the location. A wild animal in the possession of an individual or company is generally subject to a strict liability standard. A domesticated animal is generally subject to negligence. However, the line can become blurred. For example, under the common law, dogs unlike wild animals are not subject to strict liability. As a domesticated animal, dogs are subject to a negligence standard. This led to the evolution of a “one-free-bite” rule where after a bite, the dog was presumed to be vicious and the owner was potentially subject to strict liability for future attacks. The rule is a bit of a misnomer. You do not get a free bite if the dog showed vicious propensities in other ways. What constitutes a “wild” animal can also be debated. Under the common law, an animal with animus revertendi (or a habit of return) was not considered wild but again that is an uncertain standard to apply in many cases.
Many states have special provisions for zoo and public entertainment areas. 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.
Donkeys are generally viewed as domesticated animals but the Church statement recognizes that these animals do bite. In the United States, there would be a strong claim for the negligence standard but the church could still be liable. Animals and children can be a dangerous mix. Indeed, a donkey in a show has many of the elements of an attractive nuisance for children. Despite the spokesperson’s statement regarding parents watching children at holiday events, it could find itself facing the same reaction as Mr. Bumble in Oliver Twist: “If the law supposes that, the law is an ass.”
Of course, none of this means that the family will take that significant step of actually suing the Church in a Christmas-based tort.
In the Golden State, for liability to be imputed to the owner or handler of a horse, burro, or donkey, the victim only need prove negligence. Assumption of the risk is the defense, and if that doesn’t work, there’s a comparative-negligence analysis which may reduce the damages award.
If it is a “wild animal” bite, however, there’s strict liability on the part of the owner: “[I]f the animal which inflicted the injury is vicious and dangerous, known to the defendant to be such, an allegation of negligence on the part of defendant is unnecessary and the averment, if made, may be treated as surplusage.” (Baugh v. Beatty (1949) 91 Cal.App.2d 786, 791.) “[A] wild animal is presumed to be vicious and since the owner of such an animal . . . is an insurer against the acts of the animal to anyone who is injured, and unless such person voluntarily or consciously does something which brings the injury on himself, the question of the owner’s negligence is not in the case.” (Ibid.)
The same goes for dog bites, there’s no one-bite rule. It’s strict liability regardless of the owner’s knowledge of the dog’s dangerous propensity. California Civil Code section 3342 states: “(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.”