I saw a news report last week that Pittsburgh was considering implementing an ordinance that would ban the use of wild animals in performances.  The ordinance would plainly impact upon one piece of Americana – the circus.  The ordinance represents that its purpose is “to protect wild and exotic animals from cruel and inhumane treatment and to protect the public from the danger posed by wild and exotic animals for entertainment.”  Given the ordinance’s question about protecting the public, you might wonder what standard of care the law impose upon a circus for the control of their wild animals to avoid injuries to spectators or visitors.

There are not many reported decisions regarding circus liability connected with conduct of its wild animals.  This suggests that the circuses generally do a good job of restraining their animals and protecting the public – or when there are injuries, the cases resolve themselves without significant litigation because the law imposes strict liability upon a circus for any injuries caused by its wild animals.

I did find a New Jersey case from 1984, Eyrich v. Dam, in which a 5-year old victim attended a small circus that was sponsored by a local fire company as a fundraising event.  This was a real “big top” event under a tent erected on a local school property.  During the course of the circus, the little boy had to leave to go to the restroom – and later returned during the course of an act that involved two jaguars.  The little boy had to walk near the center ring of the circus where the two jaguars were sitting on stools and performing.  As the little boy walked by the jaguars, one of them “pounced” on him and dragged the boy under one of the empty transport cages.  One of the spectators intervened and wrestled the jaguar to free the little boy.  Unfortunately, the little boy died before they were able to get him to the hospital.

A safety expert testified at the trial that the circus had failed to follow the most basic safety precautions – there was no caged area for the jaguar performance, there were no additional animal trainers surrounding the ringed area to protect the public (the circus had stationed volunteer firemen around the ring with toy whips for comic relief), and that the jaguars themselves were not chained or otherwise restrained.  The circus only had a 4 inch wooden ring perimeter that defined the area of the act itself – but nothing to stop a jaguar from entering the crowd.

But even if the circus had every safety precaution possible, the law still would have imposed liability on the circus for the jaguar attack.  The Court noted that the law imposes strict liability against persons who harbor wild animals whenever the wild animal causes a personal injury to a third person.  In other words, if someone gets hurt by a wild animal, the owner is responsible to compensate the injured person (or a deceased person’s estate) for the damages sustained.

The general rule of strict liability for wild animals applies not only to circuses – but to individuals who have wild animals as “pets.”  For instance, in Nash v. Herold, a 2010 Tennessee case, the plaintiff was injured by the defendant’s “pet” chimpanzee, “Travis.”  The defendant had owned Travis for 14 years having acquired Travis when he was still an infant chimpanzee.  Travis was like a family member – including doing such things as riding in the car, using the computer, bathing and dressing himself, and drinking wine from long stemmed wine glasses (though there was no indication that Travis had been drinking prior to the incident involving plaintiff).

Travis got out of the house and the defendant called the plaintiff to help retrieve Travis.  As plaintiff arrived on defendant’s property, Travis brutally attacked her and caused life threatening and catastrophic injuries.  The defendant tried to argue that Travis was not really a wild animal – he was a domesticated pet – and that the defendant should not be strictly liable for plaintiff’s serious injuries.

In response, the Tennessee Court quoted a well-known jurist, Judge Posner, for the long-established common law rule of strict liability: “Keeping a tiger in one’s backyard would be an example of an abnormally hazardous activity.  The hazard is such, relative to the value of the activity, that we desire not just that the owner take all due care that the tiger not escape, but that he consider seriously the possibility of getting rid of the tiger altogether; and we give him an incentive to consider this course of action by declining to make the exercise of due care a defense to a suit based on an injury caused by a tiger – in other words, by making him strictly liable for any such injury.”

While Travis was not a tiger, the Tennessee court determined that strict liability was appropriate: “Persons such as the defendant who choose to own such animals have the affirmative duty to keep and maintain them safely, and in a manner that avoids liability.  This is a duty that existed at common law. . . .  [A] mutilation injury by a chimpanzee under these circumstances is the kind of harm that should be protected by a strict liability standard.”

For those of you with exotic “pets,” the legal question you want to ask yourself would be whether the “pet” is a wild animal that – if that “pet” injures someone – would result in you being strictly liable for any injuries regardless of how careful you were.