To: Joe Jackson/ Jena Wise

To: Joe Jackson/ Jena Wise

From: Bethany Stevens

Date: March 16, 2004

Re: Memo Two- Injured caracal

Question Presented

Jim Fowler has sought our assistance on an issue concerning a small exotic cat called a caracal which escaped his possession and was injured by a passing vehicle. Fowler would like to know if the owners of the dogs who scared the caracal and lead it to run into the street can be held liable for the caracal’s injures under § 767.01, Florida Statute (2003).

Brief Answer

According to a few cases that will be set forth in this memorandum, the owners of the German Shepherds that frightened the caracal should be held liable, however the statute requires the injured animal or party be domesticated, which the caracal may not be. Under § 767.01, Florida Statute an owner will be held liable for their animal’s actions if the animal injuries an animal or person. But in order for the liability to be established the animal injured must be domesticated.

Statement of Facts

The caracal is generally an exotic wild animal, and by nature is a skillful hunter that leaps on their prey with one swift bound. However in some cases in India and Iran, the cat has been tamed to assist human hunters. In this particular situation the animal is used to aid in the education process for students at the Santa FeCommunity College teaching zoo. When the incident occurred Fowler was transporting the caracal to his truck when it escaped. As Fowler was attempting to get the animal back into the cage the caracal ran toward a grassy area where two people jogged past with their German Shepherds. The dogs barked furiously and ran after the caracal. Despite Fowler’s efforts to divert the caracal’s path, the cat ran across the street and was hit by a passing motorist. Fowler did not obtain any information from the drivers of the vehicles who hit the caracal or the owners of the German Shepherds, but he does think that the police may have been called with reference to this issue.

Discussion

According to the § 767.01, Florida Statute (2003) liability can be established against the owner of a dog who injures persons, domestic animals, or livestock. Owners of dogs will be liable for all damage caused the animal to other persons, domestic animals, or livestock. The first element of that statute that must be dealt with to attempt to resolve the issue that Fowler has presented is whether the dog owners could in fact be held liable for the injuries of the caracal.

In Jones v. Utica Mutual Insurance Co., 463 So. 2d 1153 (Fla. 1985) it was decided that the aggressive and affirmative actions of a dog causing injury, that were distinctly canine in leaning, would establish liability on the part of the dog owner. In Jones a dog had a wagon tied to its body and as the dog ran toward another dog the wagon hit Donnie Jones. While initially the injury appeared not to necessitate the direct contact rule, it was ultimately decided that Donnie would have never sustained an injury had it no been for the direct contact with him. In Jones it was established that a dog acting in an aggressive and affirmative manner was apparent when the dog acted in a distinctly canine manner (ie. running after another dog). Id. 1156. In Jones the court held that the dog owner was liable for injuries caused to the young boy because the dog was acting with canine characteristics when the injury was caused.

In Mapoles v. Mapoles III, 350 So. 2d 1137 (Fla. 1st DCA 1977) it was decided that liability could be established even when a canine was not acting in a distinctly canine manner. In Mapoles a St. Bernard was seated in the backseat of a Volkswagen vehicle with a shotgun next to it. The dog hit the shotgun causing it to discharge and penetrate Clayton Mapoles, III. The court held that despite the fact that the gun-firing was outside the scope of normal canine activity the dog owner was found absolutely liable because the injury would not have occurred had it not been for the dog.

In Cohen v. Wall, 576 So. 2d 945 (Fla. 2d DCA 1991) the court decided if a dog owner could be held liable when their dog caused an injury to a third-party despite not having any direct contact with the victim. In Cohen a dog named Bogart ran after a woman named Ms. Wall, who in fright tripped and fell over a bike. Ms. Wall claimed that it was the dog’s aggressive and affirmative act that made her injure herself. The court held that the summary judgment in favor of the defendant but reversed and remanded for a new trial to assess the aggressive act of the dog. Despite the fact that this particular case did not ultimately conclude with an affirmative result in favor of holding the dog owner’s liable, it did establish the notion that a dog owner can be held liable provided the dog did act in an aggressive and affirmative manner resulting in injury.

In Brandeis v. Flecher, 211 So. 2d 606 (Fla. 3d DCA 1968) the court decided whether a dog owner could be held liable when the injured parties ran into the street with fright catalyzed by the aggressive actions of the dog. In Brandeis three young children walked on a sidewalk which had a fence parallel to it which housed a dog behind it. The dog began to bark furiously and scared the children. In fright they ran into the street and one of them was fatally injured by a passing vehicle. The court reversed and remanded for a new trial the summary judgment holding in favor of the dog owner’s and established that the “done-by” question was one for a jury to answer. In Brandeisalthough the dog did not come directly in contact with the children, the owners were held liable for their injuries.

Like the other cases mentioned previously in this paper, there was no direct contact with the dog and the injured party however the injury did arise because of the dog’s aggressive and affirmative acts. In all the cases mentioned thus far, liability was established because had it not been for the actions of the dogs the injury would not have occurred. Because the dogs in the cases stated thus far acted aggressively (although not always in distinctly canine manners) their actions conformed to that necessary to assess liability according to the § 767.01, Florida Statute.

To impose liability on a dog owner under § 767.01, Florida Statute a dog must act in aggressive and affirmative manner whether typical to that animal or not. Conforming to the finding in Jones the caracal’s injuries justifiably arose because of the aggressive and affirmative acts of the German Shepherds as they barked and chased the caracal in a manner typical of a dog. By acting in a distinctly canine manner, the dog in Cohen caused the injury to the much like in the case of the caracal injury. Had the dogs not barked at the caracal it would not have darted across the street in fright consequently sustaining an injury. Although in Mapoles it was established that despite the fact that the St. Bernard’s activities were not distinctly canine in leaning, the dog did cause the injury allowing for establishment of liability. Like the Brandeis case, the German Shepherds caused the caracal to run across the street and get hit by a car without any direct contact. According to the findings of the cases set forth thus far, the liability element of the § 767.01, Florida Statute would be satisfied, thus making the German Shepherd owners liable for the actions of their dogs.

The other essential element to the § 767.01, Florida Statute is whether the injured animal was in fact domesticated. According to the definition explained in § 585.01 Definitions, Florida Statute a domestic animal “shall include any equine or bovine animal, goat, sheep, swine, domestic cat, dog, poultry, ostrich, emu, rhea, or other domesticated beast or bird. The term ‘animal’. . . shall include wild or game animals whenever necessary to effectively control or eradicate dangerous transmissible diseases or pets which threaten the agricultural interests of the state.” The domestication component of the statute raises a necessary issue in the assessment of liability, and establishes the main point of contention with the caracal case.

In Hogan v. Girdelli, 879 P. 2d 896 (Or. App. 1994) the court utilized the ordinary or dictionary definition of domestication to determine liability under the Oregon statute with an injured gamecock. Under the definition, a domesticate animal is one that has been adapted to live with humans or for human use. It was further explained that humans can aid in the domestication process by “modifying their growth and traits through the provision of food, protection from predators and selective breeding over generations.” Id. 542. In Hogan a gamecock owner brought action against a dog owner after the dog entered the gamecock owner’s property and killed some of their gamecocks. The owner then shot and killed the dog when it would not leave his property. The court held that the gamecock was not a domesticated animal and instead was a domesticated fowl, thus not included in the scope of the statute.

In City of Rolling Meadows v. Kyle, 494 N. E. 2d 766 (Ill. App 1986) it was established that the subjective proclivities of animal could determine its status of domestication. In Rolling Meadows it was decided that a monkey reclaimed from the wild and taught human characteristics could be deemed tamed and thus domesticated. In Rolling Meadows a monkey named Yondi lived with a couple in the city of Rolling Meadows for seven years. A citation was issued by the city stating that keeping an animal other than a domesticated animal, was illegal and consequently the issue arose if Yondi was in fact domesticated. Yondi had lived with the couple since she was two days old, interacted well with humans, and was toilet-trained. In this case the word domesticated was used to “connate an animal wild by nature which has been reclaimed as to become tame.” Id. 173. According to the definition laid out by the courts, it was held that Yondi was a domesticated animal because of its tamed nature, and thus not in conflict with the city ordinance. In Rolling Meadows it was assessed that a monkey could be a domestic animal if it was reclaimed from the wild and tamed.

In McKinney v. Robbins, 892 S. W. 2d 502 (Ark. 1995) it was decided whether a kitten would be categorized as a domesticated animal under Arkansas statute. In McKinney it was decided whether Robbins would be held liable for killing McKinney’s dog after his dog had killed his kitten. Under Arkansas Code Annotated §20-19- 102(a)(1), (b)(2) (Repl. 1991) Robbins claimed immunity,because it allows the killing of dog that killed a domesticated animal. Although the court established that the kitten was not a domesticated beast, thus making Robbins not immune to liability for the killing of McKinney’s dog. In this case domesticated animal was intended to include most livestock and consequently the kitten would not be seen as a domesticated beast.

In Hogan it was established that selective breeding and modification of the animal’s traits to aid humans establishes domestication. In accordance with Hogan, the caracal would not necessarily be a domesticate beast but more needs to be known to know for sure. A point of inquiry would question whether caracal had been selectively bred in captivity for utilization in a teaching arena. InRolling Meadowsit was decided that the individual temperament of the monkey established its domestication because it had been reclaimed from the wild and tamed. In accordance with Rolling Meadows it is questionable if the caracal would be domesticated simply because not enough is known about the temperament of the caracal. In the facts explained about the caracal it was noted that the caracal is a swift hunter capable of leaping on its prey with a swift bound, but it is not known if this particular caracal exhibited these qualities. It is unclear if this caracal had been reclaimed from the wild or tamed through the breeding process. While McKinney used an Arkansas statute not applicable in Florida, it does explain the notion that in most cases domesticated animals are those reclaimed for the use and benefit of humans, but it is not clear if the caracal was in fact reclaimed for the benefit of humans.

According to the cases explained thus far, it would seem that the owners of the German Shepherds would be held liable for the injury caused to the caracal if the animal was deemed domesticated. The caracal issue met the requirements needed to assess liability for injury because it was the aggressive and affirmative acts of the German Shepherds chasing the caracal that catalyzed it to run into the street in fright.

With the facts presented it is not clear if the caracal does fully meet the domestication portion of § 767.01, Florida Statute. Although the issue of the caracal being domesticated does not have a fixed answer, it would appear from the cases laid out in the discussion section that the caracal was not domesticated because it ran from the cage as though it was not tamed. More information would have to be known concerning the individual temperament of the caracal in order to assess whether the statute applies. If the caracal was taken from its cage and people were allowed to interact with it within the confines of the teaching zoo, the caracal would be considered domesticated. However how the animal interacted with humans is not known, so the domestication portion of the statute was not fully satisfied, thus making the owners of the German Shepherds not liable until more information is known about the individual character of the caracal.

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