It is no surprise to say that personal injury law and personal injury lawyers are not the most favored people or most favored thing in our society. I am proud of what I do. However, I do not feel that the stereotype or cliche fits me or the vast majority of my colleagues. In discussing that frightening incident in the Cincinnati Zoo, perhaps I can suggest to you that not all events result in a case, even though plaintiff lawyers are accused of such.
Let me give you an example from the zoo incident. First of all, fortunately, the child was not physically injured. The child may have some sort of psychological effects from that frightening incident, but there was not, as far as I know, any significant physical injury. Let’s assume just for the sake of discussion, an academic discussion, that the child did sustain a significant physical injury as well as psychological injuries. Let’s evaluate the liability of the potential case.
There are some things that may not be known that would suggest there could be some liability on the zoo. The child was able to climb up on a 3 foot high fence and the fence was not a solid wall, but rather had metal bars. The bars were horizontally placed such that the child could put his feet on them and climb up and over the top bar. That is not the best way to fence in the perimeter of a dangerous animal, I would suggest.
Secondly, there was what we call a subsequent remedial repair so that the fence is now 3 and ½ feet high, a change that evidently came about because of this recent event. We plaintiffs would like to say that that is evidence of negligence but that is not the rule. The rule is clear that the subsequent remedial repair cannot be evidence of negligence. However, it can be used for another purpose, for feasibility or impeachment purposes if controverted. The applicable rule unambiguously mandates that. Without getting overly specific by delving into the rule, the point is sometimes and someway the fact of a repair after the accident can be used. Mostly, though, it will be used for a purpose other than to show negligence. Confusing? Yes, it is.
The zoo also had some issues with polar bears just a few months before. I am not sure, to be candid, of that connection to the incident involving the little boy and the gorilla. If it just means that zoo had been negligent or lax in its security overall, I have some concerns about its admissibility. On the other hand, it can be argued that it put the zoo on notice that better safety precautions should be undertaken. In general, the more you can tie a prior incident to the type of incident that happened, the better chance you have as the party suing.
An important issue to keep in mind, as I have mentioned in the past, is that the parents could be made an additional defendant, or a third-party defendant, in the lawsuit. There is always that specter when a suit involving a child is brought. The zoo as the defendant would argue that the parents or whoever was watching the child was negligent in the supervision of the child. I have to say that that might resonate in this case.
Additionally, the Associated Press reported that there was a federal inspection of the zoo less than two months prior to the incident and the gorilla exhibit was deemed safe. This reminds me of an accident in a building where an occupancy permit was granted. We hear this all the time in premises liability cases. Generally, the response is that inspections and codes only prescribe the bare minimum of conduct. In answer to the very beginning of this blog about personal injury lawyers and the perception of personal injury law, no, not all cases would I take. No, not all cases would respectable and serious lawyers take. If this case came to me, even with significant injuries, I might well hesitate. My concern is over the parental supervision issue. My instinct – no better than anyone else’s – is that the case lends itself to the strong argument that the parents were negligent in their supervision of the child. Sure, the zoo arguably could have done better but that doesn’t necessarily translate to liability.
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