Keeping a vicious goose (or is it vicious geese?)

|The Volokh Conspiracy |

In a Jan. 16, 2014 photo, a goose chases off a mallard duck that had been harassing other ducks around a cove on North River at Wildwood Park in Bridgewater, Va. (AP Photo/Daily News-Record, Michael Reilly)

From Olier v. Bailey (Miss. Dec. 11, 2014) (paragraph break added) (5-to-4):

Olier and Bailey became acquainted through a gardening website called "Dave's Garden," a message board of sorts for gardening enthusiasts to share their hobby. On the day of Olier's injury, she visited Bailey at her home to view some of Bailey's plants. Bailey, who has a "Beware-Attack Geese" sign in her yard, also informed Olier verbally that she kept geese in her yard. Bailey kept several five-gallon buckets of water in the yard lined along the edge of the porch to provide the geese drinking water and to act as a barrier so the birds could not walk onto the porch….

Olier wanted to see Bailey's blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese.

Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier. However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground.

At this point, a goose reached out and nipped her in the "crotch area." Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm….

Olier contends that the dangerous nature of Bailey's geese, Bailey's knowledge of their dangerous propensity, and her negligence in keeping them in the yard when Olier was injured, allow her to proceed with an action for negligence against Bailey. Under the dangerous-propensity rule, this Court has stated that an animal owner may be exposed to liability for an attack by his or her animal when:

(1) There is some proof that the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack complained of; and,

(2) There is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.

"'[T]he gist of the action has been characterized as the keeping of the animal with knowledge of its vicious disposition.'" …

Bailey's main argument is that the particular goose which bit Olier never had exhibited a dangerous propensity in the past, i.e., it never had bitten or chased anyone before. Although an adult goose of the same gaggle admittedly had run a police officer off the property previously, that goose was locked up when the attack upon Olier occurred. Bailey argues that, because there was no evidence that the particular goose in question had exhibited a dangerous propensity, she therefore had no actual or constructive knowledge of a dangerous propensity on its part, and therefore she cannot be held liable for its actions.

Olier argues first that it would be inherently unfair to require her to identify the particular goose that bit her and find evidence of that precise bird's having exhibited a dangerous propensity. Further, she contends that the real issue is foreseeability. Was Bailey on notice of the dangerous propensity of her gaggle of geese as a whole?

Olier contends that she was. Bailey saw her geese approach Olier aggressively, she saw Olier retreat to the porch, she armed Bailey with a stick and "instructed" her on how to "fend off" aggressive geese, and even went so far as to act as a decoy in an attempt to distract the geese so that Olier could attempt to venture into the yard surreptitiously. Olier argues that these actions, along with Bailey's expertise with geese, clearly evidenced that Bailey was aware of the dangerous propensities of her geese.

This Court has never confronted the issue of an aggressive bird under the dangerous-propensity rule, and, it seems, few other jurisdictions have either. In an unpublished [2006] opinion, the Michigan Court of Appeals analyzed a goose attack on a delivery person. In that case, the delivery driver was attacked by a goose which pecked at his head, causing the driver to trip and fall, fracturing his wrist.

Summary judgment was denied the defendants because the plaintiff put on evidence showing that the geese had been nesting on the property and that one of the geese had been harassing visitors by hissing at them and chasing them. The court noted that there was no evidence that the goose that attacked the driver was the one that had attacked before. The court held, although there may have been a question of whether the defendants had notice of the dangerous propensity of the goose in question, summary judgment to the defendants was appropriate because, "as tenants, their duty did not encompass the 'common areas' on the property, including the landscaping outside the building, where this incident occurred." As the defendants did not own the goose, premises liability was the only avenue through which the plaintiff could maintain suit.

So, at least one court has recognized that bird attacks may be analyzed under the propensity rule. In [the Michigan case], the court held that a goose attack may have been compensable but for the fact that the tenant defendant had no control over the common area in which the attack had occurred. Here, Bailey had total control over the area, as it was her yard, and, more importantly, she owned the goose that attacked Olier as well as the entire gaggle of geese of which the successful attacker was a member.

In this case, foreseeability is the fulcrum upon which liability turns…. Generally, if the owner knows, or has reason to know, that the animal will be aggressive, or exhibits a dangerous propensity, that owner may be liable in tort…. Bailey instructed Olier how to defend herself from all of the geese, and Bailey attempted to distract all of the geese. Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly. Therefore, a jury could find that what happened to Olier was foreseeable to Bailey….

The fact that the particular goose in question had not exhibited a dangerous propensity before does not necessarily matter when Bailey may have known that her geese were aggressive and possibly dangerous in general. When a person keeps a large group of essentially indistinguishable animals, some of which have exhibited dangerous propensities in the past, we find that such person can be liable for injuries attributable to characteristics that the animals have exhibited collectively.

Three Justices dissented, partly on the grounds that "The dangerous propensity doctrine … applies only to individual animals." One other Justice dissented on other grounds.

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