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.
Danielle Thomas is a former exotic dancer who once appeared on The Jerry Springer Show under the name “Pole Assassin.” She reportedly has used a pet monkey named “Gia” as part of her act. Thomas calls the monkey her “emotional support animal.”
Like some of us, Thomas goes all out for the holiday and converted her home into a house of horrors, including a maze. She spread the word to neighborhood kids to come and enjoy the haunted house:
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Thomas said on Twitter that “I had a haunted house on one side gated off” and that the parents never told her of the bite (She was informed by a neighborhood doctor). She said that the area with Gia was closed off and, as for petting, “no one is allowed to touch her!”
“How can she viciously bite someone if they don’t stick their hand in there where it don’t belong? This is her home, and her home only. It’s already clear as day on the gate “Don’t touch,” nobody’s allowed back here without my permission.”
Thomas is clearly not following standard legal advice of not publicly commenting on the details of a possible criminal or torts case. Instead, she lashed out on social media and said “people lie so much it’s ridiculous ! . . . Stop believing everything u (sic) hear! And more of what u (sic) see! SMH!” She insisted “No one was viciously attack this a lie, a whole lie! She was not apart of any haunted house, the kid did not have permission to be on the other side of my property!” She even posted a walk-through video of the scene to show the steps that a child would have to take to get to the monkey.
She insists in the video that she knows all of the governing legal rules and shows the path in detail. It is not helpful on the defense side: it is not a long path and easy to see how a child might get lost.
She later deleted her account (likely after her attorney regained consciousness).
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.
A wise monkey is a monkey who doesn’t monkey with another monkeys monkey.
Affe Gaffe
#1 Was the child wandering around alone or accompanied by an adult?
#2 Why was the gate not locked where she didn’t want complete strangers to go?
#3 She was responsible for the safety of her guests and for her pet capuchin. She invited total strangers to her house, and there were only 2 unlocked gates between her capuchin’s cage and people she did not know, and was not monitoring.
#4 There was an unlocked gate to an unsupervised pool, and she’d invited children over. She’s lucky no one drowned. She should not have relied on parents to watch their kids, or for the “do not enter” sign to be either visible or taken seriously in a haunted house setting. Many haunted houses have “do not enter’, “go back before it’s too late” signs. Not only that, but rumors that there was a monkey somewhere in the back of the house was going to spur a children’s quest to find it. Does she never watch children’s movies?
#5 monkeys can transmit extremely serious diseases to humans through a bite. The child needs to go through proper testing.
#6 parents are ultimately responsible for the safety of their own children to the greatest extent possible. The age of the child is not given in any story I’ve read about this. Young children need to be supervised, especially since total strangers are mixing at this event. Parents cannot rely on the homeowner for safety, and homeowners cannot rely on parents to supervise their kids. The parents are lucky it was a little capuchin and not a chimpanzee or tiger. Was there a parent there who allowed the child to stick their hand into the cage? If so, then they share negligence.
I’ve known too many people whose animals were harmed during a party. One friend lost her horse because partygoers wandered outside, opened a gate to pet her horses, and left it open. Horse ended up dying.
While there are many legal issues arising from this incident, including torts exam questions, the best remark was made by some Iowa State students this last Saturday. Pretty funny, especially when the Big 12 Conference will penalize a player for giving the “down horns” sign on the field
https://twitter.com/Horns247/status/1457109437160755203?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1457109437160755203%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.elevenwarriors.com%2Fskull-sessions%2F2021%2F11%2F126559%2Fohio-state-football
What was handed to us in One L had to do with dog bite liability; my how the law has law expanded.
“However, the parents may decide that it should remain a lesson learned rather than a litigated injury.”
I hope this is what they opt for.