You can’t turn on the television or radio today without someone discussing the incident at the Cincinnati zoo wherein a child fell into the gorilla enclosure resulting the death of Harambe the gorilla. This article does not discuss or take a position of the ethical issues regarding the decision to shoot the gorilla. However, this article does discuss a hypothetical case applying North Carolina premises liability laws, as currently constituted, and the facts of the Cincinnati zoo incident.
To briefly recap the incident, a four year old boy climbed through a wire fence, slipped through some shrubbery and climbed over the moat wall to enter the gorilla enclosure. By multiple accounts, the child breached the enclosure in seconds. At the time, the child was in the presence and custody of his mother and, apparently, other siblings. The child apparently suffered superficial cuts and bruises, and possibly a concussion.
When examining any case a lawyer must first begin looking at the parties involved. In this case, the parties include the injured child, the mother, and the zoo. If a case is brought, the forth party would be the guardian ad litem for the minor since the minor cannot bring a case on their own behalf. Further, the parents of the minor would have their own claim for the medical expenses incurred. Of note, the parents claim may be limited or barred if there was negligence on the part of the mother, which will be discussed in greater detail below.
After determining the parties in the case the lawyer must look at the issues. The issues in any premises liability case are going to be negligence, (possibly) contributory negligence, and damages. For this article I will only examine the issues of negligence and contributory negligence.
The Negligence of the Zoo
When questioning whether someone is negligent you are really comparing the actions of the potential liable party to some standard of care. The second question is whether the incident and resulting harm was foreseeable.
Clearly, the standard of care, at a minimum, requires that zoos design enclosures which prevent individuals from coming into contact with the animals. Any enclosure design which fails to achieve this elemental aspect would be, by its very nature, insufficient, and potentially fail to meet the standard of care. In this case, the enclosure was breached within seconds by a 4 year old toddler. I would take the position that the design of this enclosure was inadequate and therefore this element of negligence would be satisfied.
In terms of foreseeability, zoos are on notice that many of their patrons will be young children. It is common knowledge children may not act as rationally as an adult. With that in mind the question is whether it was foreseeable that a child might try to gain access to the gorilla enclosure? If the answer is yes, the next question is whether the zoo accounted for that in the design and implementation of the enclosure? A tangential question is whether the zoo should have taken additional precautions, beyond what was already there to guard against a child breaching the enclosure? Ignoring the second question for now, I would argue it is entirely foreseeable that a child would try to get as close to a gorilla if they can and therefore the foreseeability element is satisfied.
The zoo does have arguments to make to defend any claim of negligence. It would be quite likely that the zoo would argue that there has not been in a breach since the enclosure opened in 1978. This, they would argue applies to the quality of the enclosure itself and the lack of foreseeability. What is unclear is whether there have been any modifications to the enclosure since its inception, which takes into account what has been learned over the past 38 years (as well as changing societal norms and safety expectations).
Looking at this issue from a different perspective, one only has to look at the history of car manufacturing and safety features. Today it would be unthinkable to buy a car without seatbelts. However, cars have been sold in the United States for over 100 years and for the majority of that time cars were sold without seatbelts. The Highway Safety Act and the National Traffic and Motor Vehicle Safety Act were passed in 1966. These laws authorized the federal government to regulate vehicle and highway standards and created the National Highway Traffic Safety Administration (NHTSA). It wasn’t until these laws passed that the installation of seatbelts became mandatory. Society had changed and demanded that the products produced were safer. Arguably, the same logic can be used in this case.
The zoo would certainly argue that even if it was foreseeable that a child may attempt to breach the enclosure the law only requires them to take those precautions which are reasonable taking into account the cost and other factors. In products liability cases the defense will typically argue that every product can theoretically be made 100% safe, however, the cost associated with doing that would make it prohibitively expensive and therefore unreasonable. The same rational would apply here. The zoo could install high view obstructing fences around the gorilla exhibit (really all exhibits) but that would be unreasonable because it would adversely affect the viewing pleasure of the very patrons that the zoo is trying to protect. Therefore it would be a balancing test that any potential jury would have to answer. In my opinion however, the zoo would be negligent in this situation.
Contributory Negligence of the Minor
As has been discussed in multiple previous articles, North Carolina has contributory negligence, which a complete bar to recovery. Contributory negligence applies in all personal injury cases, including car accidents, slip and falls and premises liability case. In essence, contributory negligence focuses on the actions of the plaintiff. If the plaintiff contributes to causing the incident or their own injuries they are barred from recovering any damages (with significant exceptions including last clear chance). While this standard is fairly easy to apply with adults it presents a problem in the case of children. Children, unlike adults do not always (nor are they expected to) behave or react reasonably. To account for this, North Carolina developed a “rule of sevens”: children seven and under are conclusively presumed to have not been negligent and children between seven and 14 have a rebuttable presumption not to have been negligent. Children 14 and older are presumed to be as capable of negligence as an adult.
Since the law is clear for children under seven and older than 14 the only grey area is with children between seven and 14. The standard of care for that group of children is what would a child of the same “age, capacity, discretion, knowledge, and experience exercise under the same or similar circumstances.”
In the case of the Cincinnati zoo one of the issues that have been raised was whether the child’s mother was negligent in her supervision. I am asked many times whether the negligence of the parent can be imputed onto the minor, thereby barring the minor’s injury claim. In North Carolina, “the negligence of a parent, guardian, or other custodian of a child non sui juris in permitting the child to be exposed to danger cannot be imputed to the child so as to preclude an action by the child against a third party whose negligence has resulted in injury to it.” Martin v. Amusements of America, Inc., 27 S.E.2d 639, 644, 38 N.C.App. 130, 137 (N.C. App. 1978) (citing Davis v. Seabord Airline Railroad Co., 136 N.C. 115, 48 S.E. 591 (1904)). See also Bottoms v. Seaboard & Roanoke R.R.Co., 114 N.C. 506, 513 (1893) (internal citations omitted) (ultimately concluding that negligence of a parent cannot be imputed to a child “so as to defeat his action for damages sustained by reason of the negligence of another”).
In the case at hand, while some may argue that the mother was negligent for not supervising her minor child, her negligence cannot be imputed to the minor. Further, as the minor was four years old, he cannot be contributory negligent as a matter of law. As such, the only two issues in this case are whether the zoo was negligent and whether the child was injured.
In conclusion, if this event occurred in North Carolina the minor child would have a valid claim to bring against the zoo.