Chapter 5: Animals
The Case: Stinson v. Carpenter , No. 01A01-9601-CV00036, 1997 WL 24877 (Tenn. Ct. App. Jan. 24, 1997).
The Basic Facts: Plaintiff struck and killed a bison that had wondered onto the highway on which he was driving. Plaintiff's truck incurred significant damage. Plaintiff brought suit against the owner of a small herd of buffalos that had recently escaped in the area, although the buffalo hit by Plaintiff was without an ear tag that the all of the Defendant's buffalos were allegedly marked with.
The Bottom Line:
- "The owner of a domesticated animal may be held liable for the harm the animal causes if he or she negligently failed to prevent the harm. [Restatement (Second) of Torts] § 518(b) (1977). Thus, the owner of a domesticated animal must exercise such reasonable care to prevent the animal from injuring another as an ordinarily careful and prudent person would exercise under the same circumstances. Groce Provision Co. v. Dortch, [350 S.W.2d 409, 413 (Tenn. Ct. App. 1961)]. The owner cannot permit the animal to run at large, Tenn. Code Ann. § 44-8-401(a) (1993); Overby v. Poteat, [332 S.W.2d 197, 200 (Tenn. 1960)]; Wilson v. White, [102 S.W.2d 531, 533-34 (Tenn. 1936)], and cannot knowingly or negligently permit the animal to escape and fail to make reasonable efforts to capture it. SeeWay v. Bohannon, 688 S.W.2d 89, 91 (Tenn. Ct. App. 1985); Troutt v. Branham, 660 S.W.2d 502, 505 (Tenn. Ct. App. 1983); Groce Provision Co. v. Dortch, 49 Tenn. App. at 67, 350 S.W.2d at 413." 1997 WL 24877 at *4.
The 2007 General Assembly adopted new legislation that addresses the liability of dog owners for injuries caused by their dogs. See Tenn. Code Ann. § 44-17-201, et seq. There are several other statutes that establish a duty to keep animals from roaming at large. See, e.g., Tenn. Code Ann. § 44-8-109 (requiring that owners of "notoriously mischievous stock, known to be in the habit of throwing down or jumping fences" keep such livestock confined on their premises or suffer liability for damage to enclosure or crops of another); Tenn. Code Ann. § 44-8-401 (making it unlawful for owners of livestock to willfully allow the same to run at large); Tenn. Code Ann. § 44-8-403 (providing that no person shall suffer any stallion or jackass over fifteen months old to run at large); and Tenn. Code Ann. § 44-8-408 (making it generally unlawful for a person owning or having control of a dog to allow the dog "to go upon the premises of another, or upon a highway, or upon a public street"). McElroy v. Carter, 2006 WL 2805141 (Tenn. Ct. App. Sept. 29, 2006) holds that a cat owner did not have a duty to prevent her cat from entering on the plaintiff's land and causing damages to plaintiff's vehicle.
Recent Cases: Moore v. Gaut, No. E2015-00340-COA-R3-CV, 2015 WL 9584389 (Tenn. Ct. App. Dec. 30, 2015) (affirming summary judgment where there was no evidence that plaintiff knew or should have known that his dog had any dangerous propensities, and bite occurred at owner’s residence).§5.2 Harboring Wild Animals
The Case: Concklin v. Holland , 138 S.W.3d 215 (Tenn. Ct. App. 2003)
The Basic Facts: The Concklin's minor daughter was furnished alcohol and illicit drugs at a house owed by defendants. They brought a wrongful death suit under several theories, including ultra-hazardous activity. The decision is dicta on the liability of one who harbors wild animals, but nevertheless is included for the convenience of the reader. There is no case in Tennessee that is directly on point.
The Bottom Line:
- "Mr. and Mrs. Conklin next argue that it was error for the trial court to dismiss a strict liability claim against Lewis based on the ultra-hazardous activity present at the Fenwick property. Mr. and Mrs. Concklin cite to the [Restatement (Second) of Torts] as support for their assertion of liability against Lewis. Section 519 provides that '[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.' [Restatement (Second) of Torts] § 519 (1977) (emphasis added). In reviewing the Concklin's complaint, it is alleged that Lewis knew or should have known of Will's use of illicit drugs at the Fenwick property. In construing that allegation most favorably towards the plaintiff, this Court cannot infer that his knowledge of drug use is paramount to conducting or 'carrying on' the alleged dangerous activity. Further, '[c]ourts in this state have traditionally classified ultra-hazardous activities as those presenting an abnormally dangerous risk of injury to persons or their property, including the carrying out of blasting operations, the storage of explosives or harmful chemicals, and the harboring of wild animals.' Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App.2003), perm. app. denied (Tenn. Sept. 2, 2003). Although this is not an exclusive list, this Court is not prepared to infer that the use of drugs and alcohol is to be included as an ultra hazardous activity. Accordingly, we affirm the trial court's grant of the 12.02(6) motion as to the ultra hazardous claim against Lewis." 138 S.W.3d at 222-23.