Over the Memorial Day weekend, the Internet was abuzz with the story of Harambe the Gorilla, who was shot and killed by workers at Ohio’s Cincinnati Zoo after an incident where a four-year old boy ended up in the gorilla’s enclosure. Since the incident, a debate has raged about whether the Zoo was justified in killing the gorilla.
But could the Cincinnati Zoo be sued by the boy’s parents?
The answer is almost certainly “yes.” The better question is whether the boy/his parents would be successful in a hypothetical lawsuit against the Zoo. As an academic exercise, and because this law firm’s expertise is in New Hampshire law, I will examine the question from a New Hampshire perspective (though much of the analysis is probably applicable in many states).
A lawsuit against the Zoo would likely allege inadequate safety measures around the gorilla’s enclosure. The Zoo would be responsible under a theory known as “premises liability,” which holds that a property owner is legally liable for conditions on its property. In states such as New Hampshire which have done away with traditional classifications of entrants on land (i.e., trespassers, invitees, and licensees), all land owners owe visitors a duty of reasonable care.
In New Hampshire, a property owner may be subject to liability for negligence if harm results from the owner’s failure to remedy a dangerous condition which he knows (or should know) about.
Therefore, in order to prevail in a hypothetical lawsuit against the Zoo, the child and his parents would need to show that the safety precautions surrounding the gorilla’s enclosure were insufficient and created a dangerous condition. For example, the boy/his parents would need expert witnesses to testify that the walls surrounding the enclosure were not high enough to prevent accidents from occurring.
Accounts of the accident say that that the enclosure was guarded by a stainless steel rail just 3 feet high. Just beyond the rail are bushes around the edge of the enclosure’s moat, which is a 15 foot drop down from the visitor/spectator area.
According to the Zoo, the “barrier setup exceeds require protocols” and is inspected by the federal Department of Agriculture twice a year.
Based on that information, it would seem very difficult to establish that the safety precautions in place were so insufficient as to constitute a “dangerous condition.” That said, at least one group is alleging the safety barriers at the Zoo were insufficient.
Additionally, the boy apparently did not suffer serious physical injuries. Via Facebook, the child’s mother reportedly wrote: “My son is safe and was able to walk away with a concussion and a few scrapes … no broken bones or internal injuries …” This post was deleted soon after (possibly because a lawyer is in her ear). That being the case, the ceiling on the boy’s hypothetical damage reward would be fairly low.
As a final note, the Cincinnati Zoo appears to be owned and operated by the City of Cincinnati. In many states, municipalities enjoy at least some sort of immunity from lawsuits. In a case out of a federal court in Michigan, a two-year-old boy fell into an ostrich pit at a city zoo and was injured. The court found that the zoo was immune from the lawsuit under the doctrine of governmental immunity.
In other states, this doctrine would not apply. New Hampshire, for example, has decreed by statute that municipalities can be liable for personal injury actions (subject to certain exceptions).
In sum, any potential case against the zoo in the Harambe matter would encounter serious challenges. The most difficult would be establishing negligence: i.e., that the safety measures in place around the gorilla enclosure were insufficient, and created a dangerous condition. In some states (possibly Ohio) the Zoo might enjoy immunity from lawsuits, assuming it is owned by a government entity. And lastly, the potential upside for the hypothetical case is small, because the injuries suffered by the child do not seem to be severe.
All that being said, the case has attracted enough publicity that it wouldn’t surprise me if a law firm in Ohio gave it their best shot.
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