Washington Case Illustrates the Range of Animals That May be "Abnormally Dangerous"

According to section 23 of the Restatement (third) of Torts, if a defendant keeps a type of animal that the defendant knows is abnormally dangerous for an animal of its kind, then the defendant is liable for whatever harm that animal causes, regardless of the defendant's mindset. Kenneth Simons discusses and criticizes the development of the restatements of this tort here.

This sort of issue comes up a lot in dog-bite cases. A plaintiff suing over a dog bite can pursue a claim under a strict liability theory if he or she can prove that the defendant knew that the dog had a propensity to be dangerous. This is usually done by proving that the dog has bitten somebody in the past, although facts other than prior bites can be used to show dangerousness.

But other animals may be abnormally dangerous, including (according to at least one plaintiff) ducks. That is what the plaintiff is arguing in this interesting case coming out of Estacada, Oregon. The earlier link lays out the basic facts surrounding the case, but for a better summary, I'd recommend Kevin Underhill's post on the case at his blog, Lowering the Bar. Underhill summarizes the facts of the case:

Cynthia Ruddell alleges that she was just stepping out of her motor home "on or about May 7, 2012," when she was suddenly attacked by a local duck. The duck's onslaught allegedly caused Ms. Ruddell "to fall in her attempt to escape the duck, landing on her right outstretched hand and fracturing bones in her right wrist." She also injured her right elbow and shoulder, the complaint says, and to date has incurred somewhere around $25,000 in medical expenses.

Here's the link to the complaint itself. The plaintiff alleges that the defendant knew that the duck "had abnormally dangerous propensities in attacking people in an aggressive manner similar to how it attacked and injured [the plaintiff] . . . ."

It will be interesting to see what other evidence of attacks the plaintiff puts forward. I must admit that I'm a little bit skeptical at this point -- from a strategic perspective, it makes sense for the plaintiff to include the strict liability claim, because it leaves open the option to make that argument. But I'd be much more willing to believe this claim if the case involved a goose, rather than a duck. Metzer Farms writes about "How to Thwart an Aggressive Duck," but the aggression in those situations seems to be limited toward other ducks, rather than people. And this misleadingly-titled video, "Aggressive Ducks 1" hints that ducks may be dangerous, but the only aggressive animals I see in the video are Canadian geese.

With any luck, this case will raise serious questions over the limits of abnormally dangerous animals doctrine and go to the Oregon Supreme Court, resulting in a well-written published opinion that is included in future tort law casebooks. I can only hope that this post's critical comparison of duck vs. goose aggression makes it into the footnotes of those books.