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The Case of the Rabid Mongoose

Rikki-Tikki-Tortious?

Tort law often gives you some rather odd fact patterns; here's one I just came across, from Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc. (1st Cir. 1997):

[Hyatt's] Cerromar Beach Hotel ... in Dorado, Puerto Rico ... occupies a picturesque oceanfront setting. Its verdant grounds are bordered on the west by a mangrove swamp which is under the protection of the Commonwealth's Department of Natural Resources. On the far side of the swamp lies Lakeside Villas, a residential subdivision which was being built at the time material hereto. Hyatt has no financial or other proprietary interest in the development of the subdivision.

[P]laintiff-appellant Lynne Woods-Leber, a guest, was sunbathing near the hotel's pool. Suddenly (and without any apparent provocation) a wild mongoose scurried into the pool area and bit her. Because the mongoose carried rabies, Woods-Leber underwent a series of painful inoculations.

Woods-Leber sued, claiming the hotel was negligent, but the hotel responded with the No-One Expects The Rabid Mongoose defense -- a winner:

[U]nder Puerto Rico law, a hotel-keeper owes its guests a heightened duty of care and protection.... Nevertheless, a hotel-keeper is not an insurer of its guests' well-being.... [A] hotelier is liable for a guest's fall on hotel premises only if the hotelier knew or should have known of a preexisting dangerous condition). Consequently, notwithstanding the heightened duty of care and protection, the hotel-keeper is not liable for harm unless the harm is reasonably foreseeable....

[T]he record permits only one conclusion: that Hyatt had no knowledge, actual or constructive, either of the mongooses' existence or of the incipient danger that they presented, at any time before the attack. The hotel personnel most directly involved in the matter (such as the head grounds keeper and the chief of security) submitted affidavits which made plain that a mongoose had never before been seen on the hotel premises; that no one at the hotel knew of the presence of mongooses in the mangrove swamp or otherwise in the vicinity; and that, prior to the assault on Woods-Leber, no wild animal of any kind had ever bitten any hotel guest. By the same token, there was no evidence from which a factfinder could conclude, without rank speculation, that the temporary food preparation and storage area presented any hazard or that Hyatt should have known the inauguration of a construction project near the mangrove swamp portended an influx of wild animals. Indeed, several previous construction projects had been undertaken near the swamp without incident. Finally, there was no evidence either that a non-rabid mongoose, unprovoked, was likely to bite a supine sunbather, or that rabies was prevalent in the area....

[If] an occupier of premises disregards a known general danger, or omits a precaution regularly taken by prudent persons similarly situated, a first attack might well be foreseeable (and, thus, actionable). But here, the plaintiff offered no evidence to support a finding of foreseeability .... Since a hotel-keeper, like any other owner or occupier of premises, cannot be held liable for that which it cannot reasonably foresee, the lower court did not err in granting Hyatt's motion for summary judgment.

Woods-Leber also sued under a Puerto Rico statute that imposes "strict liability on the possessor or user of an animal for any damages which the animal causes." The hotel's response: the Not Our Mongoose defense, also a winner:

Woods-Leber failed to present any evidence tending to show that Hyatt controlled the rabid mongoose.... A person cannot control an animal of which he is completely unaware. Here, the uncontradicted evidence indicates that Hyatt had no inkling of the mongoose's existence, had no reason to suspect that mongooses were lurking nearby, and received as jolting a surprise as Woods-Leber when the mongoose struck....

The plaintiff endeavors to avoid this predictable result by arguing that a symbiotic relationship existed between Hyatt and the mongoose population in the mangrove swamp. She pins this rather exotic theory to a suggestion that Hyatt must have benefitted from the mongooses' natural affinity for devouring snakes and rodents, and that this benefit is legally tantamount to control. This argument is woven entirely from the gossamer strands of speculation and surmise. The record is devoid of any evidence that mongooses patrolled the perimeters of the hotel's grounds, performing pest control functions. And, moreover, the argument is unaccompanied by any meaningful citation to applicable legal authority. In sum, this argument is factually barren, legally bankrupt, and altogether insufficient to breathe life into the plaintiff's ... claim.

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  • OtisAH||

    Mongooses in Puerto Rico are called an "invasive species," which technically, they are. They were brought in in 1877 to deal with the Black Rat problem. So their existence in 1997 had to be known. And I have a hard time believing not one of them has ever been seen at the resort.

    Interestingly, if instead of 1997 this happened in 2017, Hyatt may not only have been unable to support a claim they were unaware of the existence of mongooses, but their ignorance of rabid mongooses may have been tough to prove as well...

    http://blogs.discovermagazine......oGi8spOmhA

    But even in 1997, as the above article indicates, their existence, as well as incidences of rabies among the population, were known to exist in 1997. Still, other than proof of a failure to take "reasonable" steps to prevent a rabid mongoose invasion, whatever steps those might be, I'm not sure there'd be much liability to be found on Hyatt's part.

  • RoyMo||

    The linked January 30, 2017 article states in its second sentence that "...just last month the CDC published the first known case of rabies transmission by mongoose bite." Whether this is referring to a supposed first record in the world of a mongoose bite transmission of rabies to a person, or if it is just alleging the first such act by a borinqueña mongoose is not clear.

    The court record, if it can be believed, suggests the CDC is either woefully uninformed or that this article is wildly untrustworthy. And while I can readily believe both to be true, it is rather irrelevant since the article is about feral mongooses serving as a reservoir of rabies.

    But since this case occurred more than two decades after

  • Martinned||

    Wow... getting a little colourful there, towards the end.

  • Eric VonSalzen||

    If I were still practicing law I would be looking for the first opportunity to cite this case for the proposition that "This argument is woven entirely from the gossamer strands of speculation and surmise." Thanks Prof. V!

  • TK-421||

    Agreed, that is a particularly good phrase. I'm definitely stealing that one for future use.

  • RoyMo||

    Bruce Selya really outdid himself there, cf Narragansett Tribe v. Guilbert 1991

  • El roam||

    Interesting post , I think , both courts have erred here . It is evident , that this hotel , was benefitting from the wild environment , giving to its guests , unique exotic landscape . That is to say , that they had , or ought to have , general knowledge and prediction , that such choice and such wild environment may make, or should host , or create actually , habitations for wild animals , even if that specific species couldn't be precisely foreseen here . So , having such knowledge , they had to make or take reasonable steps , and make a survey , about dangerous species that naturally may reside there . Having failed to do it , the liability is pretty clear .For article 1802 mentioned there , clearly dictates there that : if an injury was reasonably foreseeable , and could be avoided , combined of course with harm and causation , then , the defendant shall be liable . A person or firm , which ignores the potential hazards of such ( residing near or within mangrove swamp ) can't be considered as fulfilling reasonably duty of care for guests .
    Thanks

  • David Nieporent||

    Is your keyboard broken?

  • Careless||

    I don't know how this guy doesn't also have insane capitalization

  • El roam||

    would you like your head to be broken , your shithead ?? just let me know ..... I have special expertise for dealing with psychopaths like you ..... that is my job , that's what I do !!

  • Eugene Volokh||

    Your job is breaking the heads of people you think are psychopaths (because they fault your writing skills)?

  • El roam||

    volokoh ,

    Well , do you realize , that he didn't do nothing of anything which have to do with any skills of writing , but , right away writing things which clearly would try to humiliate the person . He could criticize something particular , could ask politely about something he hadn't understood . But , immediately writing just for the pure provocation , even Ray Charles could see it at once .

    I would bet my life , that he hadn't understood , neither the ruling , nor my comment . It is far beyond above the salary of such feeble mind .

    You are the blogger I wonder ?? have you understood the ruling ?? have you read my comment ?? Could anyone , suggest that it is less than the ultimate coherent and professional criticism on that ruling ( and improvised of course , not like your post , suggesting nothing but parroting texts from the ruling ) . Such conduct , does corrupt the net , and your blog by the way .You don't give a damn on it !! Right ??

    To your kind attention , you have really pissed me off here , but , I have rather preferred , to provide you with clear and coherent explanation . Next time , I won't be so gentile and polite with you . Not once , you were writing nonsense , but I was reserving and criticizing politely your views .

    You have just claimed that it is reasonable to deal so with readers , so, you shall get the same dear blogger next time you shall dare even to intervene , and you will have to simply live with it .

  • El roam||

    The same comment , has been written down there mistakenly twice . Ignore it , or you know : " enjoy " it twice .

  • Bill Poser||

    I would have liked to see the hotel offer as a defence the argument that it was acting in the best interest of its guests in that it was better to expose them to the small risk of being bitten by a mongoose than to the much greater risk posed by the cobra infestation.

  • El roam||

    volokoh ,
    Well , do you realize , that he didn't do nothing of anything which have to do with any skills of writing , but , right away writing things which clearly would try to humiliate the person . He could criticize something particular , could ask politely about something he hadn't understood . But , immediately writing just for the pure provocation , even Ray Charles could see it at once .

    I would bet my life , that he hadn't understood , neither the ruling , nor my comment . It is far beyond above the salary of such feeble mind .

    You are the blogger I wonder ?? have you understood the ruling ?? have you read my comment ?? Could anyone , suggest that it is less than the ultimate coherent and professional criticism on that ruling ( and improvised of course , not like your post , suggesting nothing but parroting texts from the ruling ) . Such conduct , does corrupt the net , and your blog by the way .You don't give a damn on it !! Right ??
    To your kind attention , you have really pissed me off here , but , I have rather preferred , to provide you with clear and coherent explanation . Next time , I won't be so gentile and polite with you . Not once , you were writing nonsense , but I was reserving and criticizing politely your views .

    You have just claimed that it is reasonable to deal so with readers , so, you shall get the same dear blogger next time you shall dare even to intervene , and you will have to simply live with it .

  • Mesoman||

    A matter of fact:, from personal experience rabies shots, other than the initial HIG injection, are not painful. They are done with a short, fine gauge needle into the upper arm.

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