WHEN WILD ANIMALS ATTACK

Houston Defense Attorney John Floyd discusses Potential Texas Tort

Liability for Zoo Attacks. What if it happened in Texas?

THE ATTACK

It was last Christmas evening. Most of the visitors at the San Francisco Zoo
had given way to the approaching chill of evening and left for a dinner meal
with family and friends. Rather than spending the evening with his family as
they wanted, 17-year-old Carlos Sousa joined two brothers, 23-year-old
Kulbir Dhaliwal and 19-year-old Paul Dhaliwal, for a trip to the zoo.

What the young men did at the zoo is not clear. Initial news media reports
cited a zoo visitor as saying she saw one or more of the young men taunting
the caged animals. An ensuing investigation by the San Francisco Police
Department, however, produced no evidence of taunting. Zoo officials have
maintained from the outset that there had to be some provocation to prompt
the 350-pound Siberian tiger named Titiana to escape from her grotto
enclosure (jumping a 20-foot moat and scaling a 13-foot wall), stalk the
young men, and attack all three. Sousa was killed in the attack and the two
Dhaliwal brothers were severely mauled.

The immediate question following the tiger attack for San Francisco city and
zoo officials was the issue of liability. Built in the 1930s, the zoo was
operated by the city until 1993 when its day-to-day control was turned over
to a nonprofit organization called the San Francisco Zoological Society.
While this organization has been responsible for raising funds to keep the
zoo operating, the city has still served as its landlord by contributing $7.5
million last year alone in taxpayer dollars to the zoo’s operations and
upkeep.

While this public-private agreement specifies that the San Francisco

Zoological Society is responsible for any loss of life or injury at the zoo,
City Supervisor Gerardo Sandoval informed the media shortly after the
attack that the city could be liable for millions of dollars in damages for this
latest attack by Titiana. Zoo keeper Lori Komejan lost an arm in an attack by
Titiana last year during a feeding session. She has already sued the city for
and ten other unnamed defendants for negligence in connection with that
attack.

It is understandable that Sandoval, an attorney, would immediately

recognize the city’s liability.

"Whether the attack was provoked or unprovoked, there is no excuse for an

animal getting out of its enclosure, and the law is pretty clear that in this
situation the city will be held responsible," he told the media after the attack.

GENERAL TORT LAW PRINCIPLES

There is always strict liability for the owner or keeper when a wild animal
attack. The owner or keeper of a wild animal is strictly liable for any harm
the animal causes regardless of whether:

• The owner/keeper was aware of the animal dangerousness.

• The owner/keep had the animal well-trained.
• The owner/keeper took care to prevent harm by the animal.

Depending upon California tort law is, the city of San Francisco and the San
Francisco Zoological Society will probably face strict liability for the
Christmas tiger attack.

In addition to this tort liability, the San Francisco Zoological Society will
probably face “strict liability” for maintaining what is known in common
law as “abnormally dangerous conditions or activities.” First, the tiger’s
enclosure had walls that were about 4 feet lower than those recommended by
the Association of Zoos and Aquariums. Second, Titiana had a history of
attacking people. Zoo visitors have an absolute right to be free from harm
caused by “abnormally dangerous conditions or activities” at the public
facility. The elements for this particular tort are:

• Existence of an abnormally dangerous condition or activity.

• Knowledge of the condition or activity.
• Damages.
• Causation.
The following are some defenses to a strict liability tort for abnormally
dangerous conditions or activities as set out by William P. Statsky in his
“Torts Personal Injury Litigation” (4th Ed. 2001):

1. The condition or activity was not abnormally dangerous.

2. The condition or activity was usual or natural for the environment in
question.
3. The likelihood of serious harm from the condition or activity was
small.
4. The danger in the condition or activity could have been eliminated by
the use of reasonable care.
5. The value of the condition or activity to the community outweighed
any possible danger.
6. A statute required or authorized the condition or activity.
7. Defendant was not aware of the condition or activity.
8. Defendant was not the cause in fact of the harm suffered by plaintiff.
9. The kind of harm that resulted was not foreseeable.
10.The person injured was not a foreseeable plaintiff.
11.The plaintiff was aware of the danger, understood it, and unreasonably
assumed the risk.
12.Plaintiff consented to what the defendant did.
13. Plaintiff’s suit against the city for strict liability for abnormally
conditions or activities committee by city employee may be barred by
sovereign immunity.
14.Plaintiff’s suit against the city employee for strict liability for
abnormally dangerous conditions or activities may be barred by public
official immunity.
15.Plaintiff’s suit against a charitable organization for strict liability for
abnormally dangerous conditions or activities may be barred
charitable immunity.
16.Plaintiff failed to take reasonable steps to mitigate the harm caused
when the defendant committed strict liability for abnormally
dangerous conditions or activities; therefore, damages should not
cover the aggravation of harm caused by the plaintiff under the
doctrine of avoidable consequences.

Under this kind of tort, a plaintiff can recover compensatory damages for the
harm caused by the defendant’s dangerous condition or activity. He can
recover punitive damages only if he can show that the defendant was
malicious or reckless in allowing the harm to occur.
Even if zoo officials were successful in defending against a strict liability for
abnormally dangerous conditions or activities, the victims of Titiana’s attack
could prevail on a “tort of negligence” by showing that their loss and/or
injuries were caused by the “unreasonable conduct” of zoo officials. The
elements of this tort are:

• Duty (an obligation to use reasonable care to avoid risks of injuring

the person or property of others).
• Breach of duty (foreseeability of an accident causing serious injury
outweighed the burden or inconvenience on the defendant to take
precautions against the injury and defendant failed to take those
precautions).
• Proximate cause (defendant is the cause in fact of the injury, the
injury was the foreseeable consequence of the original risk, and there
is no policy reason why defendant should not be liable for what he
caused in fact).
• Damages (actual harm or loss)

The San Francisco Zoological Society – and probably the city of San
Francisco as well – had a duty to take reasonable care to make sure that
Titiana’s enclosure protected the visiting public from harm or injury. The
fact that the enclosure’s protective wall was four feet below national
standards establishes “foreseeability” - and bringing that deficient wall into
compliance with national standards did not create either a burden or
inconvenience sufficient to outweigh zoo officials’ duty to protect the
visiting public. With those two elements established, the remaining two
elements (zoo officials were the cause of the death/injuries that occurred and
there was actual harm and loss of life) will be easy to establish.

As City Supervisor Sandoval said, there will be enough liability to go

around in the San Francisco attack.

TEXAS LAW

What would happen if such an attack occurred in a Houston zoo?

A civil lawsuit for an animal attack in a zoo in the city of Houston must be
brought under the Texas Tort Claims Act (“Act”). See: Tex. Civil Prac. &
Rem. Code Ann. §§ 101.001 – 109 (Vernon 1997 & Supp. 1998). See also:
City of Houston v. Morua, 982 S.W.2d 126 (Tex.App.-Houston [1st Dist.]
1998). In Morua a three-year old child visited the Houston Zoological
Gardens with his family on March 31, 1996. The family was viewing a
Mexican wolf exhibit. The child somehow went over or through a wooden
fence and placed his hand into the exhibit through a chain-link fence. A wolf
bit off one of his fingers and portions of two others. Id. at 127. The child’s
parents sued the City of Houston “based on strict liability, negligence, gross
negligence, and attractive nuisance.” Id.

The City attempted to have the lawsuit dismissed for lack of subject matter
jurisdiction. The trial court denied the city’s motion to dismiss, and the trial
court’s ruling was upheld on appeal. Id. The appeals court discussed the
issue of subject matter jurisdiction under the Texas Tort Claims Act as
follows:

“ … the City contends that the trial court erred in denying its motion to
dismiss because the Moruas have failed to plead a cause of action within the
waiver of governmental immunity created by the Act. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp.
1998). To explain the context of this dispute, we begin with an overview of
the relevant statutes.

”Under the common law, a municipality is immune from liability only for its
governmental conduct, not its proprietary conduct. See Simons v. City of
Austin, 921 S.W.2d 524, 529 (Tex. App.--Austin 1996, writ denied). The
legislature has statutorily defined almost every function of a municipality,
including the operation of a zoo, as governmental, thus shrouding it with
immunity from liability. TEX. CIV. PRAC. & REM. CODE ANN. §
101.0215(13) (Vernon Supp. 1998). However, under the Act, a
governmental unit waives its immunity for governmental functions to the
extent it would be liable for personal injuries caused by a condition or use of
tangible personal or real property if it were a private person. TEX. CIV.
PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 1997). Subchapter C of
the Act sets forth several exceptions to the waiver of immunity found in
section 101.021. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.051-.065
(Vernon 1997 & Supp. 1998).

”Chapter 75 of the Civil Practices and Remedies Code, commonly known as

the recreational use statute, provides for limited liability to land owners who
permit others to use their property for recreational purposes. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 75.001- .004 (Vernon 1997 & Supp.
1998). The statute specifies the standard of care, lower than that found at
common law, owed by a landowner to those he allows on his property for
recreational purposes. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(b)
(Vernon 1997 & Supp. 1998) (stating that landowner must meet standard of
care owed to a trespasser).” Id., at 128.

In 1995 the Texas Legislature amended both the Act and the recreational use
statute. Act of May 26, 1995, 74th Leg., R.S., ch. 520, 1995 Tex. Gen. Laws
3276, 3276-77 (amending Tex. Civil Prac. & Rem. Code Ann. §§ 75.003 &
101.0528). Based on these amendments, the City of Houston argued that
Morua’s claims were controlled by the recreational use statute because, as
amended, the statute does not waive sovereign immunity under § 75.003(f).
The Mouras, on the other hand, argued that the amended § 75.003(f) did not
abolish the waiver of immunity found in § 101.021(2) but, rather, limited
governmental liability under § 101.021(2). Id., at 129. The appeals court
resolved this legal dispute as follows:

“The express wording of both section 101.058 of the Act and section
75.003(g) of the recreational use statute undermine the City's argument. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g), 101.058 (Vernon
1997). Both sections clearly state that, to the extent the recreational use
statute limits the liability of a governmental unit under circumstances in
which the governmental unit would be liable under the Act, the recreational
use statute, and its diminished standard of care, controls. See id. A plain
reading of both sections reveals that, once it is determined that a
governmental entity is liable under the Act, the recreational use statute may
then operate to limit, not abolish, that liability if the facts of a particular case
support its application. See id. According to the City, the legislature intended
to abolish governmental unit landowner liability through the addition of
section 75.003(f), which states that ‘This chapter does not waive sovereign
immunity.’ TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(f). However,
based on the plain meaning of sections 75.003(g) and 101.058 outlined
above, an analysis of a governmental unit landowner's liability does not
reach the recreational use statute unless it is first determined that the
litigant's claims fall under the waiver of immunity created by the Act. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g), 101.058. Therefore,
section 75.003(f) merely emphasizes that the recreational use statute limits
preexisting liability, and does not, in and of itself, waive sovereign immunity
or abolish the waiver of liability found in the Act. See TEX. CIV. PRAC. &
REM. CODE ANN. § 75.003(f). It would be nonsensical to assume that the
legislature, by adding two separate provisions stating that the recreational
use statute limits the liability of a governmental unit landowner, intended to
abolish the waiver of governmental immunity created by section 101.021(2)
of the Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g),
101.058. We hold that the recreational use statute does not bar the Moruas'
claims made pursuant to section 101.021(2) of the Act, and that the trial
court did not err in denying the City's motion to dismiss for lack of subject
matter jurisdiction.” Id., at 130 [Emphasis original].

In effect, the Texas Tort Claims Act waives its sovereign immunity for,
among other things, personal injury and death caused by a condition or use
of tangible personal or real property if the government unit would, were it a
private person, be liable to a plaintiff according to Texas law. See: §
101.021(2).

Texas law provides that a premises owner may be liable for two types of
negligence by failing to keep his/her premises safe: (1) that arising from a
premises defect, and (2) that arising from an activity on the premises. See:
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

It must be stressed that “premises defect” and “negligent activity” are

independent theories of recovery. Id., at 529. See also: City of Houston v.
Harris, 192 S.W.3d 167, 177 (Tex.App.-Houston [14th Dist.) 2006).

Under Texas law, recovery based on a negligent activity theory requires that
the injury be a “contemporaneous result” of the activity itself rather than by
a condition created by the activity. Id. See also: Timberwalk Apartment
Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998).

With respect to an injury resulting from a condition of the premises,

including property on the premises, rather than conduct that occurred at the
time of the injury, a plaintiff has only a premise defect cause of action. See:
Olivo, supra, 952 S.W.2d at 527; Tex. Dep’t of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 229-30 (Tex. 2004).

Finally, the appeals court in Harris held that the “Tort Claims Act's
scheme of a limited waiver of immunity from suit does not allow plaintiffs
to circumvent the heightened standards of a premises defect claim contained
in section 101.022 by re-casting the same acts as a claim relating to the
negligent condition or use of tangible property. See State v. Tennison, 509
S.W.2d 560, 562, 17 Tex. Sup. Ct. J. 291 (Tex. 1974) (rejecting the
argument that the Tort Claims Act ‘creates two entirely separate grounds of
liability’ for negligent use or condition of real property and premise defect,
but instead interpreting the premises defect provision to further limit the
waiver of immunity for negligent use or condition of real property). Other
Texas courts have recognized that to allow plaintiffs to characterize
premises defect claims as claims caused by the negligent condition or use of
personal or real property would render the Legislature's heightened
requirements for premises defect claims meaningless.” Harris, supra, 192
S.W.3d at 174.

CONCLUSION

Based on the foregoing analysis of Texas law, a victim of a tiger attack in a

Houston zoo could present a claim under the Texas Tort Claims Act seeking
damages based on a “premises defect” theory. The tiger’s enclosure is a
permanent fixture of the zoo’s real property. It conditions would be
defective if they failed to meet national zoological standards, e.g., protective
wall being lower than recommended standard. Without more facts, it would
be difficult to state that a per se negligence claim could be made under
Texas law based on the San Francisco zoo facts because the injury and death
must be the “contemporaneous result” of a negligent activity. No one at this
juncture can state with certainty that negligence was involved in the San
Francisco attack. But clearly there was a “premises defect” at the San
Francisco zoo giving rise to such a claim under Texas law.

SOURCE: General tort law information found in Statsky’s “Torts Personal

Injury Litigation (4th Ed. 2001).