It was once said that "cooperation for mutual benefit, a survival strategy very common in natural systems, is one that humanity needs to emulate." (1) No-where is cooperation needed more than in reducing or preventing owner and homeowner association (HOA) liability for wild animal attacks. As land development continues to escalate and intrude upon animal habitats, the barriers that historically keep proper distance between humans and animals decline. At the same time, catalyzed by conservation efforts undertaken by the Florida Fish and Wildlife Conservation Commission (FWC), an increase in the black bear population here in Florida has resulted in a significant rise in human-bear conflicts as bears learn to forage for food in residential areas where numerous attractants (like unsecured household trash) present potentially easy pickings. This has resulted in bears becoming habituated to human contact. Since 2013, there have been several instances of Florida black bears mauling residents of neighborhoods located near bear habitat. As human populations grow and natural habitats shrink, it is increasingly likely that bears may injure people and/or damage their property. Using bears as our primary exemplar, this article explores land owner and HOA responsibilities for the actions of wild animals that often result from habitat encroachment.
Liability in General
Generally, an owner of land does not have an obligation to warn others about the dangers of animals in their natural habitat or protect others from wild animal attacks. (2) Yet, the law is well settled that an owner or occupier of land must exercise ordinary care in the management of their property, and the breach of this duty gives rise to a cause of action for negligence. (3) While an owner's duty to exercise ordinary care is not expected to prevent all injury, an owner is expected to use reasonable care to discover dangerous conditions on their land and to protect permitted entrants from those conditions. The interpretation of this duty varies from court to court, but prudent owners should regard every visitor (whether a guest or contractor) as a potential party deserving such protection. Indeed, a Georgia court case indicated that, when a visitor was injured running away from a snake in overgrown grass, negligence could be found if the owner should have foreseen that there were snakes in the area on account of the overgrown grass. (4) In that respect, an owner's duty "is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (5)
In making this judicial policy determination, courts weigh the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff would suffer injury, the policy of preventing future harm, and the extent of the burden on the defendant and consequences to the community of imposing a duty to exercise care with attendant liability for breach. (6) Florida courts tend to tip the scales in favor of defendant-owners under the doctrine of ferae naturae, (7) relating to animals that are wild by nature. The crux of this rule is that the law generally does not require an owner to anticipate the presence of or guard a visitor against harm from wild animals unless the owner has reduced the animals to possession, harbors such animals, or has introduced wild animals onto the property that are not indigenous to the locality. (8) However, Florida courts have qualified that rule as follows:
We do not say a landowner can never be negligent with regard to the indigenous wild animals found on its property. A premises owner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it. (9)
In a case involving a lawsuit against a hospital by a patient bitten by a black widow spider, the court described the negligence claim as "essentially a premises liability action against the landowner-hospital" by an invitee. (10) In reversing the original jury damages award in St. Joseph's Hospital v. Cowart, 891 So. 2d 1039, 1040 (Fla. 2d DCA 2004), the Second DCA noted that "[n]o Florida cases specifically address a premises liability action based on a spider or insect bite," but "Florida law holds that landowners do not have a duty to guard an invitee against harm from wild animals, except in certain circumstances not applicable here."(11)
The "circumstances not applicable here" are those in which Florida courts have held that an owner can be negligent when the evidence demonstrates the owner knew of the unreasonable risk of harm posed by a wild animal. (12) The Cowart court recognized that an owner's duty to guard a visitor against harm from wild animals hinges on the owner's knowledge of the danger being superior to that of their visitor. (13) For instance, the hospital in Cowart could have such a duty if the hospital records demonstrated that there was a black widow infestation or that other patients had been bitten by black widow spiders. (14) This was why the Colorado Supreme Court, in CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 252 (1970), found a grocery store owner's negligence established as a matter of law when a...