The Texas 10th Court of Appeals (Waco) was recently presented with an interesting issue, summarized as: IS A LANDOWNER LIABLE FOR THE ACTS OF WILD ANIMALS THAT ORIGINATE ON THE LANDOWNER’s PROPERTY, BUT CAUSE HARM TO A PLAINTIFF ON THE PLAINTIFF’s OWN PROPERTY?
The deceased woman’s heirs brought various claims against the neighbor from whose walls the bees originated. The trial court granted summary judgment on all of the heirs’ claims. On appeal, the 10th Court affirmed in part and reversed in part the trial court’s grant of summary judgment.
The court’s opinion addressed numerous legal issues and claims for relief. The focus of this post is the Court’s determination of whether the neighbor had a duty to protect the deceased woman from the acts of the wild bees.
GENERALLY, THERE EXISTS NO LIABILITY FOR WILD ANIMAL ATTACKS ON THE DEFENDANT’s PROPERTY
In Texas, case law has established that a landowner cannot be held liable for the acts of indigenous wild animals (animals ferae naturae) occurring on his or her (the Defendant landowner’s) property unless the landowner has actually reduced the wild animals to possession or control or introduced a non-indigenous animal into the area. Nicholson v. Smith,986 S.W.2d 54, 60 (Tex. App.-San Antonio 1999, no writ); Gowen v. Willenborg,366 S.W.2d 695, 697 (Tex. App.-Houston [1st Dist.] 1963, writ ref’d n.r.e.)
Courts have applied this doctrine to negate the existence of a duty in premises liability cases where the act of the wild animal occurred on the defendant’s property. See id. See also Gamble v. Peyton, 182 S.W.3d 1 (Tex. App.-Beaumont 2005, no pet.); Overstreet v. Gibson Prod. Co., 558 S.W.2d 58 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.).
LIABILITY FOR ACTS OF WILD ANIMALS THAT ORIGINATE ON DEFENDANT’s PROPERTY BUT CAUSE HARM TO PLAINTIFFS ON PLAINTIFF’s PROPERTY
The court identified “several interrelated factors” that must be considered when deciding whether to create and impose a common law duty to protect a plaintiff from the acts of wild indigenous animals which originate on the defendant’s property but cause injury to the plaintiff on the plaintiff’s property or elsewhere.
These factors are:
- foreseeability, and
- likelihood of injury.
The foregoing factors must be weighed against (a balancing test??)
- the social utility of the actor’s conduct,
- the magnitude of the burden of guarding against the injury, and
- the consequences of placing the burden on the defendant.
Before liability will be imposed, there must be Forseeability. That is, sufficient evidence indicating that the defendant knew or should have known that harm would eventually befall a victim. Greater Hous. Transp. Co., 801 S.W.2d at 526. Absent such a showing, a defendant is absolved of liability. Id.
Forseeability, is a sine qua non of liability. However, foreseeability, alone, is not a sufficient basis for creating a duty. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). The Nichols court acknowledged that the fact that someone may be stung by bees which take up residence on another person’s property is certainly not an unforeseeable or even unlikely occurrence, but still insisted on considering the other factors articulated above.
Applying each of the factors, the Court determined that imposing a duty on landowners to guard against injury to someone in another location from every species of indigenous wild animals which may roam from the landowner’s property is too substantial of a burden. In furtherance of this determination, the Court stated:
To avoid exposure to liability, it would require every property owner to constantly survey their property and purge the property of any and every wild animal, reptile, mammal, or insect, residing there, especially if the animal takes up residence in anything the property owner has on his property, such as a wood pile, a stock trailer, a pond, or any number of things, for fear the wild animals may leave the property and injure a person somewhere else. This is too much of a burden to impose on every property owner.
The Court concluded its duty analysis with the following:
But just as landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety, see Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no writ), landowners should not have a duty to guard against injury to someone in another location from every species of indigenous wild animals which may roam from the landowner’s property. We decline the invitation to create and impose such a duty on a landowner.