Posted in Walkup News on December 13, 2011
Bob Egelko, Chronicle Staff Writer
Sunday, January 13, 2008
In the eyes of the law, keeping a caged tiger is like hauling dynamite or storing uranium – an activity so dangerous that even the most careful proprietor is responsible for any injuries to bystanders.
That’s the general rule that will apply to any lawsuits over the Christmas Day attack at the San Francisco Zoo, in which a tiger escaped from its outdoor grotto, killed a 17-year-old visitor from San Jose and injured two of his friends. But, as usual in these situations, there’s an asterisk, and it dates back to 1952, when a state appeals court ruled on a suit by a man who was attacked by a polar bear at the same zoo.
The victim in that case, Arthur McKinney, was bitten on the hand and arm while reaching toward the cage – or possibly into the cage – to feed the bear. A Superior Court jury found no negligence by the city, which then ran the zoo, and McKinney appealed.
His lawyer argued that McKinney shouldn’t have to meet the usual test to prove the city was negligent – which would have meant showing that the zoo hadn’t taken reasonable care to keep animals away from visitors. Instead, he argued that the keeper of a dangerous animal should be held strictly responsible for any harm it causes.
The First District Court of Appeal ruled against him, saying the doctrine of strict, no-exceptions liability for inherently dangerous activities like keeping a wild animal doesn’t apply to a city carrying out a government function such as running a zoo. A city is responsible only for harm caused by a “dangerous or defective condition” of public property that officials should have known about and failed to repair, the court said.
The ruling is still on the books as a precedent and may strengthen San Francisco’s defense against anticipated damage claims by brothers Paul and Kulbir Dhaliwal of San Jose, who were injured by the Siberian tiger that escaped on Christmas Day, and by the family of 17-year-old Carlos Sousa Jr., who was killed.
Even before any lawsuits have been filed, the city is citing the McKinney case in a court dispute over potential evidence, arguing that it can’t be held responsible for the attack without proof that its employees were at fault.
But lawyers and law professors who have studied the issue doubt that the 1952 case is enough to get the city off the hook.
For one thing, said Matt Davis, a San Francisco personal-injury lawyer and former deputy city attorney, California overhauled its laws on suits against government agencies in 1963. He said a judge may conclude that the ruling in the polar bear case was based on previous laws and is no longer binding.
Davis also noted that the zoo, which was free to the public in 1952, now charges $11 for adult tickets. “Once you start charging admission, your responsibility to the patrons increases,” he said.
Also, a legal shield for the city wouldn’t help the San Francisco Zoological Society, the nonprofit that took over zoo management in 1993. It remains subject to the traditional rule that a zookeeper, like a dynamite-hauler or anyone else engaged in what the law classifies as “ultra-hazardous activities,” can be held responsible for injuries caused by those activities even if it did nothing wrong.
San Francisco’s management contract with the Zoological Society protects the city from responsibility for damages at the zoo unless a city employee was at fault. But legal analysts contacted by The Chronicle generally agreed that it shouldn’t be hard for a plaintiff suing over the tiger attack to prove that both the city, which designed the zoo and owns the land and animals, and the Zoological Society, which is responsible for day-to-day operations, were negligent.
“Based on the facts that have come out, this is a clear-cut case of negligence,” said John Diamond, a professor at UC Hastings College of the Law in San Francisco.
He cited the zoo director’s admission that the moat wall around the tiger grotto was only 12 1/2 feet high – 4 feet below national safety standards, and 7 1/2 feet shorter than zoo officials had said it was. “There’s no excuse for having an enclosure that does not conform to industry standards and allows a wild animal to escape,” Diamond said.
If the case goes to trial, said David Levine, another Hastings professor, the plaintiffs will present experts who will testify that “any idiot would know a dry moat with a 12-foot wall” isn’t enough protection from a tiger.
He said the fact that the same tiger attacked a trainer a year earlier, ripping much of the skin from her arm, would help to show that zoo officials had been aware of a dangerous situation. A state investigation concluded that the zoo was at fault for the attack because of the way the tigers’ cages were configured.
Other legal experts cited reports that zoo supervisors had ignored employees’ warnings of safety problems.
“In a place that invites people in, you have a heightened duty to make it safe,” said Kenneth Bamberger, a UC Berkeley law professor.
Another issue likely to come up in any lawsuit trial is whether the victims themselves were negligent, by taunting or other conduct that may have spurred the tiger to escape or put them in harm’s way.
In typical injury cases, the jury decides whether the victim’s actions contributed to the harm and reduces the damages proportionately – for example, if the victim was 20 percent at fault, the damage award is lowered by 20 percent. But that may not be much of a factor in this case, Levine said.
“It depends on what they’d done, but it’s pretty unlikely that merely taunting the animals would lead to (a finding of) substantial fault,” Levine said. “You shouldn’t do it, but it happens all the time. … It’s not like coming in and unlocking the cage.”
Diamond went further, saying that no actions by the victims, short of helping the tiger break out or jumping into its enclosure, should be grounds for reducing the damages. Zoos are supposed to anticipate a wide range of behavior from visitors when designing their structures, he said, and a visitor wouldn’t reasonably expect that taunting a dangerous animal would enable it to escape.
He said it was even possible that a jury would award punitive damages, in addition to compensation for the plaintiffs’ injuries. Evidence that zoo managers had been on notice that the enclosure was inadequate and the tiger was particularly aggressive might lead jurors to conclude that the zoo exhibited a “reckless disregard toward the safety of the public,” Diamond said.
Levine was skeptical, saying the city could cite the zoo’s accreditation by a national agency as evidence that it hadn’t consciously ignored any dangerous conditions. Davis and another experienced injury lawyer, Barry Novack of Beverly Hills, said punitive damages can’t be awarded against the city, though the same immunity doesn’t apply to individual employees or the Zoological Society.
UC Berkeley’s Bamberger said the expected lawsuits could serve a social purpose.
One goal of the law of torts, or injuries, he said, is “to create liability rules that will make people act in the right way.” After a verdict in the San Francisco case, he said, “zoos would know more about how they need to act.”
“At Great America or Disneyland, every once in a while someone is injured or killed, and it causes everyone to look at the rides,” Levine said. “This is the equivalent for the world of zoos.”