We had just finished discussing animal liability in my torts class when a bizarre case from Halloween surfaced involving the girlfriend of Texas special teams coach Jeff Banks. The account involves a stripper known as Pole Assassin, a monkey used in her act, and a wandering child at the house of horror she created for Halloween . . . and they say my torts exams are unrealistic.
While a license is required in Texas for certain exotic animals, there does not appear to be such a requirement for a small monkey. Houston posts the standard definition which includes monkeys weighing over 20 pounds:
Sec. 6-51. – Wild animal defined.
As used in this article, the term ‘wild animal’ shall mean any mammal, amphibian, reptile or fowl of a species that is wild by nature and that, because of its size, vicious nature or other characteristics, is dangerous to human beings. Wild animals shall include, but not be limited to, lions, tigers, leopards, panthers, wild cat-domestic cat hybrids up to the third generation, bears, wolves, wolf-dog hybrids, cougars, coyotes, coyote-dog hybrids, raccoons, skunks (whether deodorized or not), apes, gorillas, monkeys of a species whose average adult weight is 20 pounds or more, foxes, elephants, rhinoceroses, alligators, crocodiles, caymans, fowl larger than a macaw, all forms of venomous reptiles and any snake that will grow to a length greater than eight feet. The term shall also include any animal listed as an ‘endangered species’ under the Federal Endangered Species Act of 1973, as amended, or any fowl protected by the Federal Migratory Bird Treaty Act. The term wild animal shall not include gerbils, hamsters, guinea pigs, mice and domesticated rabbits.
(Ord. No. 2014-244, § 2(Exh. A), 3-26-2014)
Thus, the most likely charge is civil rather than criminal.
The case is reminiscent of the tragedy in the Carla Nash case but that case involved a much more serious attack and a large monkey.
Under the common law, domesticated animals like dogs are treated under a negligence standard. Wild animals in the possession of an owner are subject to strict liability. However, even with domesticated animals, such knowledge can trigger strict liability under the so-called “one free bite rule.” For example, dogs are subject to strict liability if they are known to have bitten someone. The rule is a bit of a misnomer, as reaffirmed in a Georgia case. It does not take one bite to put a pet owner on notice to attach strict liability.
Thus, assuming that a chimp is considered a domesticated pet in Texas, there would still be a basis for strict liability for a pet with a vicious or violent propensity. It is not clear if Gia “has a history.”
There are also interesting questions in the case of negligence and an attractive nuisance. On negligence, an owner who creates a haunted house and a maze must foresee that children can wander. It is true that they have only permission to go into certain parts of the house. While they could be claimed as trespassers in unapproved areas, one has to be anticipate some will get lost like the man in a previously discussed case who was killed by a coffin on a Halloween ride.
A 21-year-old man surnamed Cheung was killed by a moving coffin in a haunted house in Hong Kong’s Ocean Park. The attraction is called “Buried Alive” and involves hopping into coffins for a downward slide into a dark and scary space. The ride promises to provide people with the “experience of being buried alive alone, before fighting their way out of their dark and eerie grave.” Cheung took a wrong turn and went backstage — only to be hit by one of the metal coffins. The hit in the head killed Cheung who was found later in the haunted house.
There is also the problem of an attractive nuisance that can add liability for child trespassers. These are cases involving children who are drawn by proximity or curiosity to a danger. The Restatement Second Section 339 states five elements, including (1) the place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass; (2) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (3) the children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it; (4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
In this case, Thomas actively solicited children to come to the attraction and invited them to wander within the house and maze. Moreover, any word that Thomas has a monkey is likely to further entice child trespassers. Indeed, in the video, the scene looks enticing, particularly when the cage is spotted:
There is also liability for a failure to warn or make safe for “licensees” or social guests invited into the home.
Thomas is not without defenses. As shown in her video, she can claim that there were a series of barriers that made the encounter less foreseeable. (The sign however is not one of them given the possible dark conditions and uncertainty whether children could read or understand it.). If the child was with an adult, the defense would be much stronger obviously. However, a sign reading “Do Not Enter” or “Danger” in a haunted house can be easily missed or even misconstrued.
At this point, Thomas should prepare for a possible lawsuit. However, the parents may decide that it should remain a lesson learned rather than a litigated injury.