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36 Ins. Counsel J. 268 (1969)
Liability Arising from Owning or Harboring Animals

handle is hein.journals/defcon36 and id is 270 raw text is: INSURANCE COUNSEL JOURNAL Liability Arising From Owning Or Harboring Animals JAMES H. DONALDSON Chatham, New Jersey ANIMALS GENERALLY For the purposes of establishing the duties and responsibilities on the part of an owner or harborer of an animal, the law makes a distinction between animals which are domestic and animals which are wild. To determine into which class an animal will fall, the general test is whether or not the animal is one which is in the service of man. If the animal is in such service, then it is regarded as a domestic animal. In this classification would come cattle, horses, dogs, cats, hogs, sheep, turkeys, chickens and pigeons. Wild animals are those which are generally regarded as being hostile to man and such would include bears, elephants, lions, tigers, etc. The rule is that a wild animal is a dan- gerous instrumentality and mere ownership thereof imposes liability where damage or injury has occurred. The theory is that, when an owner brings such an animal into a neighborhood, he subjects his neighbors to an abnormal risk of harm, and, regard- less of whether the animal escapes as a re- sult of the owner's negligence or not, the mere ownership or possession of such an animal is sufficient to impose liability. On the other hand, where domestic animals are concerned, the rule is that domestic animals are not dangerous, do not create abnormal risks of harm to the neighbor- hood unless the particular animal has ex- hibited dangerous propensities which were known to the owner. In State v. McDermott,' the court said: The cases involving animals have an- nounced separate principles of law. If a man has a beast that is ferae naturae, as a bear or a wolf, and it got loose and did harm to any person, the owner is liable in an action for damages, even though he had no notice that the animal had done such a thing before. The same principles apply to dominate naturae, or domestic animals, except as to them, the owner must have 149 NJL 163, 6 At 653 (1886). JAMEs H. DONALDSON, who practices in Chatham, New Jersey, received his LL.B. and LL.M. degrees from St. John's Universi- ty School of Law. He is the author of Casualty Claims Practice and Law For The Claimsman. He is a member of the Amer- ican and New York State Bar Associations, the New York County Lawyers' As- sociation and IAIC. seen or heard enough to convince a man of ordinary prudence of the animal's inclina- tion to commit the class of injury charged against it. The Law takes notice that a dog is not of a fierce nature, but rather the contrary. Where proof is made of mis- chievous propensities which cause injury to another of which the owner knew or should have known, liability follows. WILD ANIMALS For the purposes of imposing liability, wild animals may be subdivided into two classifications, (1) a wild animal which is indigenous to the locality in which it is kept; (2) animals which are indigenous to a distant location. Where a wild animal which is native to the location escapes from the possession of the owner, legally, the animal has returned to the wild state and, since the owner can no longer exercise possession, he has nei- ther ownership nor responsibility. The Restatement of the Law of Torts, Section 508 states the rule as follows: A possessor of a wild animal which is indigenous to the locality in which it is kept is not liable for harm done by it after it has gone out of his possession and re- turned to its natural state as a wild animal indigenous to the locality. As for a wild animal which is not native to the locality, should it escape, the pos- Page 268 April, 1969

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