Photo by David Evers [some rights reserved]
In a divided opinion issued yesterday, the Mississippi Supreme Court reversed the grant of summary judgment in a case involving an attack by a domestic goose. The plaintiff in the case, Janet Olier was attacked and injured by a domestic goose owned by the defendant, Donna Bailey.
Olier sued Bailey in the County Court of Jackson County under the theory of premises liability and, alternatively, under the dangerous propensity rule. The trial court granted summary judgment for Olier which was affirmed by the Circuit Court of Jackson County. On appeal to the Mississippi Supreme Court, the finding was affirmed that there was no general premises liability claim, but reversed so that Olier could proceed under the dangerous-propensity rule.
The basic facts were that Olier wanted to see Bailey’s blooming banana plant. Bailey kept domestic geese in her yard. Baily told Olier that the geese would not bite as long as Bailey was present, and Bailey gave Olier a bamboo pole to fend off the birds. However, the geese came at Olier squawking and hissing and a goose reached out and nipped her. Olier then turned to run and tripped over a bucket breaking her arm.
In evaluating the premise liability claim, the Court analyzed the status of Olier and agreed that she was a licensee. As a licensee, Bailey only owed Olier a duty to refrain from willfully or wantonly injuring her. Primarily because the geese were not a hidden danger – Bailey had a sign warning visitors of their presence – the Court found that Bailey did not breach her duty of care to Olier.
In evaluating the dangerous propensity rule, the majority opinion held that the question was not whether Bailey breached her duty of care toward Olier as a landowner, but as an animal owner. The Court concluded that the duty of care as an animal owner was separate from the duty owed by a premises owner. Under the dangerous propensity rule, an animal owner may liable for injuries from an animal attack when: (1) there is some proof that he animal has exhibited some dangerous propensity or disposition that the owner was ware of prior to the attack; and, (2) there is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.
In applying the dangerous propensity rule to the facts of this case, the Court found sufficient evidence to put Bailey on notice of her animal’s dangerous propensities. By way of analogy, the Court noted that evidence of barking, growling and chasing can be sufficient to put an animal owner on notice. More importantly, the Court stated that:
where an injury is a result of an animal’s having behaved consistently with its general nature, it is irrelevant whether that particular animal had exhibited an unusually dangerous propensity previously, as its own inherent propensity precipitated the injury.
This case is significant for animal owners because it appears to expand the dangerous propensity rule to an animal which has not actually exhibited a dangerous propensity in the past. In doing so the Court explained that where a “goose is just being a goose, and being a goose includes biting and chasing people, there need not have been a prior incident to put its owner on notice of that propensity, as the owner knew or should have known that its animal naturally engaged in that kind of behavior.”
Notably, the Court recognized a difference between the situation where the property owner did not own the animal that caused the injury versus the situation in this case where property owner had control of the property and actually owned the animal that caused the injury. Looking at the totality of the circumstances, and considering the evidence in the light most favorable to Olier, the Mississippi Supreme Court found that there was sufficient evidence to overcome the motion for summary judgment as to the dangerous propensity claim.