D. The Scienter Action (Liability for Harm Caused by Dangerous Animals)

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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1) The Elements of Liability

Under the scienter action, the keepers of dangerous animals are strictly liable for injuries and harm caused by them.28Scienter, which means knowledge, is the central element of this cause of action. The plaintiff must prove not only that the animal was dangerous but also that the keeper knew that the animal was dangerous. For the purposes of this action, animals are divided into two classes: animals ferae naturae and animals mansuetae naturae.29Animals ferae naturae are those that are considered, by their nature, to be dangerous to people. They include such animals as tigers, elephants, wolves, and bears. These animals are conclusively deemed to be dangerous and their keepers are conclusively presumed to know that such animals are dangerous. A keeper is strictly liable even though the injury may not have been of the kind that led the courts to categorize the animal as ferae naturae.

Animals mansuetae naturae are by their nature harmless to people and include domesticated farm animals and cats and dogs. A normally harmless animal may, however, have shown a dangerous propensity to cause damage of the kind suffered by the plaintiff. In those circumstances, the keeper is strictly liable under the scienter action if he was aware of its dangerous nature before it attacked the plaintiff.

In recent years, an additional element has been introduced into the scienter action. Some courts now require proof that the animal that caused the injury escaped from the control of the defendant keeper.30

This requirement operates to protect defendants whose animals have been caged or tethered at the time that the plaintiff was injured. In Maynes v. Galicz,31 for example, the scienter action was held to be inapplicable in respect of a caged wolf. The plaintiff child was bitten on the hand when she ventured too close to the cage. This additional requirement is another example of the pervasive influence of fault doctrine on the torts of strict liability. Proof that the animal remained under the control of the keeper is another way of saying that the keeper took

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reasonable care in respect of the animal. Consequently, once control becomes an issue, the focus is drawn to the defendant keeper’s conduct and the adequacy of the control exercised. The adequacy of the control depends upon the foreseeability of danger in the circumstances and the measures that the keeper took to avoid that risk of injury. The strict liability for dangerous animals is thereby adulterated by demanding a determination of the reasonable care of the keeper.

The application of the scienter action to the modern phenomenon of a wild life safari park where visitors drive among dangerous animals was clarified in Cowles v. Balac.32In that case the automatic window of the plaintiff’s car was inadvertently lowered allowing a Bengal tiger to enter the vehicle and attack the occupants. The trial judge held that although the tiger was controlled within the boundaries of the park and the occupants of the vehicle were intended to be caged within their vehicle the tiger was, for the purposes of the scienter tort, out of control and liability was imposed for the serious injuries suffered.

The rule of remoteness of damage in the scienter...

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