Zoo Biology 22:489496 (2003)

Commentary

Captive Animal Liability:

19th Century Foundations and 20th
Century Modifications
Brett Bannorn
Zoo Atlanta, Atlanta, Georgia
Two important legal milestones concerning liability for keeping animals in
captivity occurred in the years 18791881. These were the publication of The
Common Law by Oliver Wendell Holmes, and the United States Supreme Courts
decision in The Congress and Empire Spring Company v. Ann P. Edgar. Holmes
declared that the liability one incurs for maintaining potentially dangerous
animals is absolute. The Courts decision noted that wild animals not normally
considered ferocious, such as deer, can be considered domestic under the law if
they are tame, with a corresponding reduction in liability. A brief examination is
presented of how the doctrine of captive animal liability was modied in the 20th
century to reect the difference between wild animals kept by a private individual
and those maintained by a reputable zoological park. Zoo Biol 22:489496,
c 2003 Wiley-Liss, Inc.
2003.

Key words: captive animal; absolute liability; United States Supreme Court; Oliver Wendell
Holmes

INTRODUCTION
Two signicant legal milestones in the development of liability laws concerning
the keeping of captive wild animals occurred within 2 years of each other in the 19th
century. The rst was the United States Supreme Courts 1879 decision in the case of
The Congress and Empire Spring Company v. Ann P. Edgar. The second was the
publication in 1881 of The Common Law by Oliver Wendell Holmes, later a justice
n

Correspondence to: Brett Bannor, Zoo Atlanta, 800 Cherokee Ave. SE, Atlanta, GA 30315. E-mail:
bbannor@zooatlanta.org
Received November 12, 2001; Accepted October 23, 2002.
DOI 10.1002/zoo.10087
Published online in Wiley InterScience (www.interscience.wiley.com).

c 2003 Wiley-Liss, Inc.

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on the Supreme Court himself. This article examines both events as they relate to
animal liability, and discusses how the 19th century doctrine was modied in some
jurisdictions in the 20th century to reect the growth of the modern zoological park.
It should be claried that although this essay is written from a legal-historical
perspective, it nevertheless is intended for zoo professionals with a laymans
knowledge of the law. Accordingly, it does not dissect ne legal matters that are of
concern primarily to those in the law eld.
Common Law, Wild Animals
In 1881, Oliver Wendell Holmes published The Common Law, his classic
account of the history of Anglo-American jurisprudence [Holmes, 1881]. The work is
based on lectures he delivered before a Cambridge, Massachusetts, audience the year
before, and is widely considered the best book on law ever written by an American
[Posner, 1992:Intro].
Although by the late 20th century one legal commentator remarked that
overall The Common Law was virtually unreadable [Gilmore, 1977:52], the books
paragraphs on captive wildlife law are quite clear. Holmes wrote that:
[A] case of conduct which is at the risk of the party without further knowledge
than it necessarily imports, is the keeping of a tiger or bear, or other animal of a
species commonly known to be ferocious. If such an animal escapes and does
damage, the owner is liable simply on proof that he kept it.y [H]ere there is
usually no question of negligence in guarding the beast.y Experience has shown
that tigers and bears are alert to nd means of escape, and that, if they escape,
they are very certain to do harm of a serious nature.y [T]he law throws the risk
of the venture on the person who introduces the peril into the community
[Holmes, 1881:1223].
Thus, in Holmess opinion, no one who owns a tiger can disclaim liability for
whatever harm the cat causes if it nds a way out of its enclosure. Declaring that
every precaution was taken to ensure that the feline would never escape is no defense.
Likewise, one can not sidestep liability by pleading ignorance of the inherent hazards
posed by large carnivores. According to Holmes:
The fact that tigers and bears are dangerous is so generally known, that a man
who keeps them is presumed to know their peculiarities. In other words, he does
actually know that he has an animal withy teeth, claws, and so forth, and he
must nd out the rest of what an average member of the community would know,
at his peril [Holmes 1881:1234].
This is all readily comprehensible to todays zoo professional.
Holmes does not address the matter of whether the owner incurs liability if the
cat remains caged and harms someone who walks up to the enclosure to stick his
hand between the bars. However, if, like the cats owner, any adult is presumed to
know that a tiger has teeth, claws, and so forth, one assumes that if he disregards
safety barriers it is at his peril. Thus, for example, in the 1952 case of McKinney v.
San Francisco, a visitor to that citys zoo could not recover for damages caused by a
polar bear. McKinney had leaned over and stretched his arm across a safety fence,

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and a nearly 4-foot-wide space between this barrier and the containment
bars, in order to feed the bear sugar. As a result, his hand and arm were severely
bitten.
Although Congress and Empire Spring Co. v. Edgar was decided 21 months
before publication of The Common Law, Holmes does not mention the case.
That litigation focused the Supreme Courts attention on a clarication of
what constitutes a ferocious animal. There was no legal doubt that tigers
could be dangerous, but what about a species in which the potential hazard is less
denite?
Case of the Savage Saratoga Stag
The Congress and Empire Spring Co. owned the land containing
Congress Spring in Saratoga, New York. Waters of this spring were believed to
have medicinal qualities, and the company operated a resort for prot. The site
was developed into a park-like setting, complete with fountains, ornamental
landscaping, walking paths, and (of signicance to the case) nine deer, including
three bucks.
Whether these deer were an exotic species or the native white-tailed deer is not
specied in the court report; nevertheless, they were enclosed on the grounds and
kept as property of the Congress and Empire Spring Co. This was, in effect, a walkthrough exhibit. On October 18, 1870, Ann Edgar strolled along one of the resorts
paths. Suddenly [S]he met the mischievous deeryhe attacked her, goring and
striking herywhereby she was thrown down and greatly injured and put to great
suffering and expense. (Congress and Empire Spring Co. v. Edgar case report).
There is no indication from the record that Edgar did anything to
provoke the buck. It was later testied, however, that at least one Beware
of the Buck sign was posted, along with other notices advising guests not to tease
the deer.
Arguments of the Attorneys
Not surprisingly, Edgar brought suit against the Congress and Empire Spring
Co. She won a lower court jury trial, but subsequent appeals eventually brought the
matter before the highest court in the land. In todays America, in which the
Supreme Court was recently called upon to decide a Presidential election, it might
seem odd that a simple personal injury liability case would be heard by this tribunal.
Before the 1930s, however, it was much more common for the Supreme Court to
decide common law disputes that involved no constitutional question than it is today
[Anastaplo, 1989: Chap. 10 & 11].
The brief submitted to the Supreme Court by Edgars attorney, George Miller,
was concise. He simply made the point emphasized by Holmes, that if one owns a
wild animal, one is liable for any damage it does even if no negligence occurs on the
part of the owner.
Charles Lester, the lawyer representing the Congress and Empire Spring Co.,
offered several arguments as to why the lower courts rulings should be overturned
and the company should bear no liability. Most of Lesters points dealt with the
nature of animals in general (and deer in particular), and whether expert witness
testimony on deer behavior is admissible. On the specic matter of liability, Lesters

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argument consisted of several parts, the most signicant of which may be

summarized as:
1. The owner of a dog, horse, cow, or other domestic animal is not liable for
injuries committed by the creature unless the owner knew the animal was
accustomed to do mischief.
2. Deer are wild animals, but they may be reclaimed and domesticated when
they cease to be such.
3. Thus, whether a creature is wild or tame is a question of knowledge as to the
habits of that particular animal.
All these points were accompanied by citations of prior cases and legal
treatises; none of these arguments would subsequently be ruled invalid. It was the
nal line of Lesters reasoning, however, that truly summed up the somewhat
nebulous nature of liability where deer were concerned:
[I]f the deer was a domesticated animal, there was no cause of actionybecause
there was no evidence that it had ever before committed any injuryynoryany
knowledge that it possessed a dangerous disposition.y But if it is claimed that a
deer belongs to the same class of animals as lions, bears and tigers, then [Edgar] is
chargeable with the same knowledge of its dangerous character as the [Congress
and Empire Spring Company], and her negligence in going into the inclosure [sic]
where she knew this deer was conned, was such contributory negligence as barred
her from recovering. (Congress and Empire Spring Co. v. Edgar lawyer brief).
Counselor Lester, in effect, argued that however one legally classied deer, the
Congress and Empire Spring Co. could not be at fault. If a deer is considered tame,
there is no liability because, he insisted, the company did not know the buck was
aggressive. If a deer is considered vicious, there is no liability because Ann Edgar
should have known, as common knowledge, that she was strolling among dangerous
game at her own risk.
Lester buttressed his position with an evidentiary argument. The attorney
challenged the trial courts admission of testimony by an expert witness as to the
aggressive nature of male deer in autumn. Lester argued to no avail that whatever
knowledge the witness had of male deer in general, it was irrelevant because the
witness was not familiar with that particular buck.
More noteworthy was Lesters other chief objection to this expert witness,
whose identity is not revealed in the Supreme Courts report. Apparently, the expert
admitted that his knowledge of deer came from reading natural history books, rather
than from eld experience. This might be regarded with some amusement today. One
presumes that in our time, counsel in a litigated controversy seeking testimony by a
deer expert would enlist the services of a zookeeper or a wildlife biologist, not
merely someone who pores over books or watches cable television nature
documentaries.
Courts Opinion
Justice Nathan Clifford issued the Courts unanimous judgment. While a noted
scholar has called Clifford one of the poorest opinion-writers ever to sit on the

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Court [Currie, 1985:356], at the very least the Congress and Empire Spring Co.
opinion is readable by a layman.
The court found in Ann Edgars favor, that is, it refused to overturn the trial
courts verdict awarding damages to her. This is the key to understanding the
Supreme Courts ruling. While the Congress and Empire Spring Co.s appeal, as
mentioned above, challenged legal points, Justice Clifford and his brethren ruled that
the relevant matters in the case were ndings of fact properly left to a jury.
In the jury deliberations, the jurors pondered such questions as: Was she truly
injured by the animal? Did she bear no negligence herself? Did the company have
knowledge that the buck was potentially vicious prior to its attack on Ms. Edgar?
All of these questions were answered in the afrmative by the jury. Edgar
obviously had been injured by the buck, and she was not in a place she should not
have been. That left the question of the Congress and Empire Spring Co.s
knowledge. The jury atly rejected attorney Lesters contention that there was no
prior knowledge that the buck was a hazard. While no evidence had been produced
at the trial that anyone had previously suffered the same fate as Edgar, the jury was,
nevertheless, informed of those warning signs, including the one stating Beware of
the Buck. It seems the jury considered this ample evidence that the company must
have known this deer could be aggressive.
This nding is of note to zoo professionals. For those whose specialty is captive
animals, rather than the law, it might seem reasonable to believe that in a contact
area where zoo management places a warning sign that a certain animal may bite,
visitors have been placed on notice that the zoo claims no liability if a visitor is in
fact bitten. The signicance of the Congress and Empire Spring Company v. Edgar
case, however, is that exactly the opposite was decided: management was held liable
because their posting of signs was proof to the jury that the company had advance
knowledge that the buck was a hazard. The company was, in effect, told that the
only way they could have relieved themselves from liability would have been to
remove the buck from the grounds.
As to the matter of whether the testimony of a deer expert was admissible,
the court ruled that it was. Justice Clifford noted that even if that witness was not
truly an expert, his testimony was still valid as a matter of common knowledge.
Furthermore, it was ultimately up to the jury to decide how much weight should be
given to the words of a person telling them that bucks in rut can be nasty.
Clifford twice incorrectly identied the appendages atop the male deers head
as horns rather than antlers. Since he was writing on behalf of the entire bench,
presumably the other members of the Court did not notice the error either. Perhaps
this is not surprising: Faigman [1999] noted numerous other cases in which judges
showed lack of scientic knowledge.
Nevertheless, this mistake demonstrates an irony in the judgment. That male
deer are aggressive in the fall was ruled common knowledge; on the other hand, that
male deer possess antlers rather than horns was information apparently alien to the
well-educated men on the United States Supreme Court.
Implications of the Saratoga Stag Case and Holmes Today
While it is not known how many liability suits there have been against
zoological parks for animal-related injuries suffered by visitors, about 25 such cases
have subsequently been appealed to higher courts and thus are reported in the legal

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literature [Shipley and Soehnel, 1979; and 2001 supplement]. Unlike The Congress
and Empire Spring Co., none of these matters has gone all the way to the United
States Supreme Court. However, a brief look at a few cases is in order to better
elucidate the development of modern captive animal liability law as it relates to
zoological parks.
In 1970, the Colorado Court of Appeals heard the case of Denver v. Kennedy.
This litigation concerned the matter of a 5-year-old girl whose nger was bitten off
while she attempted to feed a zebra at the Denver Zoo. Counsel for the Kennedy
family cited a 1962 Colorado case (Collins v. Otto) in which was held that [O]ne
who harbors a wild animal, which by its very nature is vicious and unpredictable,
does so at his peril, and liability for injuries inicted by such animal is absolute.
(Collins v. Otto case report).
This is very similar to the passage from The Common Law quoted above. The
Collins case involved injury to a child from a coyote kept by private individuals.
Clearly, however, a major change had occurred in the keeping of wild animals
between The Common Law/Congress and Empire Spring Co. v. Edgar days and
Denver v. Kennedy nearly a century later. This change was the growth and
development of municipal zoological parks. Writing for the unanimous court in the
Denver Zoo zebra case, Judge Philip Dufford took notice of the special
circumstances of zoos, and offered an amendment to the Holmesian notion of
absolute liability:
Under [the Collins] rationale the act of keeping or harboring the animal is viewed,
by itself, as an unreasonable act done in deance of the safety and desires of the
surrounding societyywe do not think the rule in Collins extends to, nor was
intended to extend to, a situation where a municipality maintains and operates a
zoo for the benet of the public and in response to the publics obvious desires. In
such instance the keeping and displaying of animals which are commonly wild in
nature is not an unreasonable or unjustied act. (Denver v. Kennedy case report).
With Denver relieved of the burden of absolute liability, the only way the
Kennedy family could recover for the little girls injuries was to show that the zoo had
been negligent in its maintenance of barriers between the zebras and the patrons. This
important legal distinction must be stressed: the City of Denver could not automatically
be held liable simply because it owned zebras and kept them at the local zoo. It could be
held liable only if its method of displaying the zebras was negligent.
Not all of the reported cases noted this zoo exemption to the notion of
absolute liability for keeping wild animals. Denver v. Kennedy nevertheless set an
important precedent in acknowledging a difference between individuals who keep
potentially harmful animals in their backyards or service stations, and reputable
zoos that maintain collections for educational and recreational purposes.
Since the Denver zebra case involved a zoo managed by the local government,
it raises the question of whether absolute liability can be waived only if a zoo is
municipally run. After all, many zoos today are private institutions, maintained by
nonprot societies. Fifty years before Denver v. Kennedy, however, there was a
similar nding in the 1920 case of Guzzi v. New York Zoological Society. A 12-yearold girl visiting the Bronx Zoo ignored safety barriers in order to retrieve a ball that
had rolled next to a bear cage. She was mauled by the bear (species unspecied), and

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her counsel argued that the New York Zoological Society should incur absolute
liability since by keeping dangerous captive animals they were maintaining a
nuisance. The court held, however, that since the Society operated the zoo under
legislative charter for public education and entertainment, there could be no recovery
under the nuisance theory.
However, relief from absolute liability is not the same thing as relief from all
liability, even if a zoo, rather than a private individual, is the defendant. Five years
after the Guzzi case, the Mississippi Supreme Court heard the matter of Byrnes v.
City of Jacksoninvolving yet another serious mauling of a zoo visitor by a bear,
again with the species unspecied. In this case the bear was kept in a cage, but on the
day Mrs. R.A. Byrnes visited, the zoo staff had taken the animal out of its cage and
chained it to a tree. Visitors walked right up to the bear to feed it peanuts, candy, and
other treats. Byrnes was offering food when the bear suddenly knocked her down, bit
her hand, and gashed her leg with its claws.
In its opinion, the Mississippi court hinted that the City of Jackson might incur
absolute liability regardless of the circumstances; such a declaration would have been
contrary to the Guzzi ruling of a few years earlier and the Denver verdict 45 years
later. In Byrnes, however, the specics of the action involvedthe zoos willful
removal of the bear from its cage and chaining it to a tree without any safety barriers
between it and visitorswas judged sufciently negligent that Byrnes could sue the
city whether or not the city had absolute liability.
CONCLUSIONS
It should be stressed that neither Holmess book nor the nding in the Congress
and Empire Spring case arose in a vacuum. In his written opinion in that case, Justice
Clifford cited numerous earlier precedents on the issue of liability for damage by
wild animals. Most of these citations were English cases, however. Holmes also
referred to a number of English precedents. Thus, the Congress and Empire Spring
case and The Common Law can best be considered not as new law, but rather as
afrmation that the basic law of liability for damages by wild animals was accepted
in the United States. Although Congress and Empire Spring has frequently been cited
in subsequent cases, it has provoked no debate in law journals, as the verdict in the
case was not controversial.
This article is intended to be informational. It in no way purports to advise or
comment on any litigation currently engaged in or incurred in the future by any zoo
or other institution possessing wild animals.
ACKNOWLEDGMENTS
For their guidance, encouragement, and kindness, I thank Dr. Nancy Pratt and
Walter Dupree of Disneys Animal Kingdom.
APPENDIX
Listed below are the names, full legal citations, and dates of all the cases
mentioned in the text, in the order discussion appears.

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The Congress and Empire Spring Company v. Ann P. Edgar. 99 U.S. 645, 25
L.Ed. 487 (1879).
McKinney v. City and County of San Francisco. 109 Cal. App. 2d 844, 241 P2d
1060 (1952).
The City and County of Denver v. Denise J. Kennedy. 29 Colo. App. 15, 476 P2d
762 (1970).
Denise J. Kennedy v. The City and County of Denver 31 Colo. App. 561, 506
P2d 764 (1972).
David Ray Collins v. Roy Otto. 149 Colo. 489, 369 P.2d 564 (1962).
Guzzi v. New York Zoological Society. 192 App. Div. 263, 182 N.Y.S. 257, 135
NE 897 (1920).
Byrnes v. City of Jackson. 140 Miss. 656, 105 So. 861, 42 ALR 254 (1925).

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commentary. Baltimore: Johns Hopkins Press.
339 p.
Currie DP. 1985. The Constitution in the Supreme
Court: 17891888. Chicago: University of Chicago Press. 504 p.
Faigman DL. 1999. Legal alchemy: the use and
misuse of science in the law. New York: W.H.
Freeman and Co. 233 p.

Gilmore G. 1977. The ages of American law. New

Haven: Yale University Press. 154 p.
Holmes OW. 1881. The common law [1963
reissue]. Boston: Back Bay Books. 337 p.
Posner RA, editor. 1992. The essential Holmes.
Chicago: University of Chicago Press. 342 p.
Shipley WE, Soehnel SA. 1979. Annotation:
governmental liability from operation of zoo.
Am Law Rep Ser 3d 92:832844.