For this installment of our series on animal sidekicks (part one here) we’ll be discussing an animal owner’s tort liability for injuries caused by the animal. This would also apply to supervillains who sometimes use animals, such as Catwoman and the Penguin. Like most tort law issues, the law here varies from state to state, but there are some common principles that we can discuss.
There are two basic categories of animal here: domesticated animals and wild or exotic animals. In both cases there are two sub-issues: the bases for liability and the available defenses. As we shall see, the broad scope of liability makes the defenses particularly important.
I. Domesticated Animals
At common law a domesticated animal’s owner is liable for injuries caused by the animal if the owner knew or should have known that the animal was dangerous. See, e.g., McCaster v. Jackson, 833 So.2d 36 (Ala. 2002). This leads pretty naturally to the question “how can you prove an animal is dangerous?” An animal’s dangerous propensities can be proven in a couple of different ways.
The first and most direct approach is to show that the owner knew or should have known that the animal acted dangerously in the past. However, it is generally not necessary that the animal previously caused an injury; knowledge of its dangerous disposition is sufficient. Mungo v. Bennett, 238 S.C. 79, 81-82 (1961). Once knowledge is established, in some jurisdictions owners are strictly liable for injuries caused by the animal, but in other jurisdictions liability requires negligence on the part of owner. See, e.g., Bard v. Jahnke, 6 N.Y.3d 592 (Ct. App. N.Y. 2006) (strict liability); Mungo, 238 S.C. at 82 (negligence).
The second, indirect approach is to show that the animal was of a breed or type known to be dangerous (e.g. that a dog was of a vicious breed or that a bull was particularly dangerous during breeding season). However, not all jurisdictions recognize this approach. See, e.g., Bard, 6 N.Y.3d at 599.
Some states have enacted statutes that eliminate or modify the requirement of knowledge of the animal’s dangerous disposition. See, e.g., Robinson v. Meadows, 203 Ill.App.3d 706 (App. Ct. Ill. 1990).
The practical upshot of this is that any superhero with an animal sidekick is going to be potentially liable for injuries caused by the sidekick. Heck, if the animal didn’t have dangerous propensities it’d be a pretty lousy sidekick. So let’s turn to the defenses to see if our heroes can find a way out of having to leave their animals at home.
There are four main defenses to an injury by an animal: contributory or comparative negligence, intentional provocation, assumption of the risk, and a fourth defense that we’ll call “being up to no good.” Contributory or comparative negligence are, as the names imply, generally only available in states where liability is based on negligence. Assumption of the risk, by contrast, is a defense to strict liability. These defenses are the basis for things like “beware of dog” signs. While those defenses are handy for people in the real-world, superheroes need a bit more, since they tend to go on the offensive.
For superheroes the main defenses are intentional provocation and “being up to no good.” If a supervillain provokes an animal sidekick by attacking it, the animal may react without incurring liability for the owner. See, e.g., Grams v. Howard’s O.K. Hardware Co., 446 N.W.2d 687 (Ct. App. Minn. 1989).
What we’ve called “being up to no good” is a slightly unwieldy phrase we made up to refer to a defense available in many states. For example, Minnesota’s dog attack statute reads, in part:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.
Minn. Stat. § 347.22 (emphasis added). As you can see, separate from provocation is a defense that the person attacked was either not acting peacefully or was trespassing. Illinois has a similar defense. 510 ILCS 5/16. As long as the superhero waits until the supervillain has started breaking the law, there appears to be considerable leeway for an animal sidekick (or at least a canine sidekick) to attack, at least in states that recognize this defense.
It is unclear to us to what extent self-defense or defense of others can be used as a defense. That is, if the owner deliberately sics the sidekick on a villain in order to defend himself or herself or to defend a third party. It seems like this would be proper self-defense or defense of others, so long as employing the animal amounted to reasonable force.
II. Wild Animals
Wild animals are treated differently than domesticated animals. The general rule is that the owner of a wild animal is strictly liable for injuries caused by the animal, even if the owner had no knowledge of the animal’s propensity for harm and even if the owner took the utmost care in keeping the animal. See, e.g., Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1259 (Sup. Ct. Ind. 2003).
There is an exception to this, albeit a narrow one. Under the Restatement (Second) of Torts, and as adopted by many jurisdictions, strict liability only applies to the kind of danger that is characteristic of the particular class of wild animal. Consider a wild snapping turtle kept as a pet. Now suppose someone tripped over the turtle’s hard shell, causing a painful toe stubbing and hurting themselves in the fall. A court would not apply strict liability in that case. The danger of a snapping turtle is that it might bite a person, not that someone would trip over it. Now, if the owner had deliberately put the turtle in the victim’s path, the owner might still be liable, but under a different theory. Unfortunately, that exception is unlikely to be very helpful to a superhero, since the harm caused by a wild animal sidekick is likely to be exactly of the type that is characteristic of the animal.
As with states that apply strict liability in cases of dangerous domesticated animals, there are defenses here, too. For example, provocation has been held to be a defense. Whitefield v. Stewart, 577 P.2d 1295 (Okla. 1978). And we see no reason self-defense or defense of others might not apply as well.
Superheroes selecting an animal sidekick should probably stick to domesticated animals such as domestic dogs. Wild animals, even well-kept or tamed ones, carry with them additional legal risks and fewer defenses. Since this is another area that varies widely from state to state, superheroes traveling around the country should do a little research before bringing their animal sidekick along. What’s fine for their sidekick to do in one state might get them sued in another.