Vicarious Liability, Negligence, Products Liability Fact Pattern

Fact Pattern

Heather works at the local zoo. She feeds and cleans the cages of the various species of monkeys on exhibition. One day, Heather received a telephone call from John (the exhibits supervisor). John instructed Heather to report to the exotic bird building to substitute for another employee who failed to report to work due to illness.

Heather had never worked with these birds before and was unfamiliar with their habits. However, she received feeding and watering instructions from John. As she was cleaning one of the walk-in cages, the toucan escaped.  It attacked a child visiting the zoo that day.  It landed on the back of the child's neck and proceeded to scratch and bite her neck and ears. The injuries required stitches. For purposes of this hypothetical, assume that the zoo is a private, independently run company and will not fall under any government protections.

If you were the parent of the child, please discuss who you would sue and under what tort theories. Please make sure to include a full discussion of each tort and each party you may sue.


The possible defendants in this fact pattern would be:


  • Heather for working with birds she was unfamiliar with allowing the bird to escape
  • John for ordering heather to perform a function which she was not qualified to do
  • The zoo
  • Looking to sue the cage manufacturer




The first defendant would be Heather. I would sue heather under a negligence theory. To prevail in a negligence action, the plaintiff must prove:

  • A duty of care was owed
  • Breach of that duty
  • Causation
  • Damages [1]


Because heather worked in a zoo, she knew or should have known that the animals in the zoo were ferae naturae and prone to exhibit behaviors of wild animals. [2] While it does not take special knowledge and training to understand that an animal is in fact ferae naturae, it does take special knowledge and training to understand the habits and capabilities of these animals. A simple explanation of how to feed and provide water to wild animals does not address any public or employee safety concerns.

A reasonable person might make the determination that when Heather agreed to work with these wild animals for the first time, without the proper training or familiarity with the type of behaviors the animals might exhibit, she was negligent in not first obtaining such training. Because Heather knew or should have known each animal in the zoo, including the toucan could possibly escape confinement and become free to encounter visitors at the zoo, Heather owed the public a duty of care to be especially vigilant and aware of the animal’s habits and capabilities in order to minimize the possibility that the animal could escape and injure visitors. [3] When Heather attempted to work with the toucan without such knowledge, heather failed to provide the required duty of care. As a result, she allowed the toucan to escape and subsequently injure the child.




John would also be sued under a negligence theory. Because John was a supervisor, he should have been even more aware of the possibility that the bird could escape when being left in the care of Heather, who was simply not aware of the bird’s capabilities and habits. As with Heather, John also owed a duty of care to the public. This duty included exercising reasonable due care to protect the public by taking reasonable precautions to keep the animals from escaping and confronting the public. When John ordered the inexperienced Heather to care for the toucan, John failed his duty. As a result, the toucan was allowed to escape and subsequently injure a child.


The Zoo


Because the zoo owned the toucan, I would sue the zoo under strict liability theory for owners of wild animals. Under that theory, a wild animal who in the exercise of a dangerous propensity attributed to that particular class of wild animal does in fact injure a person, the owner is held strictly liable for the injuries sustained. [4] When the toucan scratched, and bit the child, the zoo became strictly liable for damages. In addition, I would also sue the zoo under the vicarious liability doctrine for the negligence of both John and Heather. Because John and Heather were working for the zoo and during the course of their employment, they were negligent in allowing the child to escape, the vicarious liability doctrine would expose the zoo to liability for the injuries sustained by the child. [5]



Cage Manufacturer


Because it is possible that a design or manufacturing defect in the cage was the proximate cause of the toucan’s escape, I would join the cage manufacturer as a defendant in the cause of action under a products liability theory. To further explore this possibility, more information is required to determine whether a design or manufacturing defect did exist and any nexus between the defect and the bird's escape.



[1] Cathy J. Okrent & William R. Buckley, Torts and personal injury law 21 (5th ed. 2015).

[2] Id. at 297.

[3] Id. at 20.

[4] John L. Diamond, Lawrence C. Levine & Anita Bernstein, Understanding torts 253 (5th ed. 2013).

[5] See Okrent at 91.

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