STRICT LIABILITY

2. Domestic animals:  But injuries caused by a “domestic” animal such as a cat, dog, cow, pig, etc., do not give rise to strict liability, except where the owner knows or has reason to know of the animal’s dangerous characteristics. P&K, p. 542-43. This does not mean that “every dog is entitled to one free bite,” an often-repeated incorrect statement. For an owner may have reason to know of his pet’s dangerous tendencies because it has unsuccessfully attempted to bite someone in the past, or seems to have a generally vicious temperament, etc.

Example:  D keeps a dog in the backyard. The dog escapes, and bites P, the mail carrier, in the street in front of D’s house. If the dog has never attempted to bite anyone before, D is not subject to strict liability, since dogs are a domesticated rather than wild species. But if D knew or had reason to know that the dog sometimes attacks people, she would be strictly liable.

3. Distinguishing wild from domesticated:  A domesticated species is one which “is by custom devoted to the service of mankind” in the community in question. Rest. 2d, §506(2). Thus bees, bulls, and stallions are all generally held to be domesticated, even though they can be and often are very dangerous. The basis for this classification is obviously that ownership of these animals serves a social use, and should not be discouraged by excessive liability. P&K, pp. 542-43.

a. Fear of humans is factor:  In deciding whether a wild animal’s “dangerous propensities” caused the damage in question, the fact (if true) that the average person fears animals of that species would be part of what makes the animal dangerous. So don’t assume that a defanged, declawed, or generally-docile animal that is part of a wild species hasn’t caused the damage, if the damage stems from the plaintiff’s panic over the animal’s presence.

Example:  D keeps a very tame bear in his backyard. Without negligence by D, the bear escapes, and walks into P’s backyard 1/2 mile away. P, who is barbecuing, is so frightened by the bear that he suffers a fatal heart attack. The bear would not have attacked or otherwise harmed P. D is nonetheless strictly liable for P’s death, because humans’ fear of unrestrained bears is part of what makes bears a dangerous species.

b. Injury from factor that is not part of species’ dangerousness:  On the other hand, if the accident or injury occurs on account of a factor that is unrelated to the “dangerous propensities” that are typical of the species in question, then there will not be strict liability.

Example:  D is a retired animal trainer who keeps a small tame bear that previously appeared with him as part of D’s circus act. The bear is old, slow-moving, almost blind, and the size of a small dog. D keeps the bear in the fenced yard alongside his house. P is a thirteen-year-old girl who delivers newspapers to D. One day, P comes to D’s home to collect for the past week’s deliveries. Since she knows the bear, P opens the gate and calls the animal so that she can pet him. The bear bounds toward the place from which the sound has come, but because he is almost blind, he bumps into P. P falls to the ground, fracturing her ankle.