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After an incident in which an 8-year-old girl was bitten by a dolphin at SeaWorld, dolphin owners everywhere are asking themselves about the potential liability for their aquatic mammals. Though the child left SeaWorld with a souvenir of teeth marks on her hand the size of dimes, the parents say they have no intention of filing a lawsuit. Good for them, because if they really did want to cause a fuss, they probably could.

Owners are Strictly Liable for Wild Animals

Owners of wild animals are strictly liable for the damages caused by the vicious propensity of that wild animal. In this case, the 8-year old held a paper carton of fish above the rail — which the park tells visitors not to do — and the dolphin lunged out of the water to grab the carton, biting the girl’s hand in the process. Here’s Exhibit 1:

Strict liability means that there is no need to prove that somehow the Defendant is at fault or negligent to have caused the harm. It’s a bad place to be in if the injuries caused significant damage.

Are Dolphins Wild Animals?

Strict liability not only extends to wild animals but also animals that have a known dangerous propensity. This poor girl was actually told not to lift the food above the rail, likely due to the fact that there is a propensity for the dolphins to get overzealous and leap for the food. This propensity may be enough to trigger strict liability. Due to the high level of intelligence of dolphins, I can see how it would be difficult for some to call them “wild,” but I think that misses the point.

Strict Liability Does Not Mean There Are No Defenses

The primary defense often used to these types of cases is assumption of the risk. This defense can be very generally explained as where the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity. It would be very difficult to argue that an 8-year old could have contemplated the risks of playing with flipper–apparently a career dream of hers. Assumption of the risk may be broadened where the injured party was given a disclaimer or warning of the risks. It’s unclear what SeaWorld’s policies are, but it can be assumed there were some forms, but there is doubt if there is much that SeaWorld could have done since the injured party here was a minor and would not be provided the same kind of effect for an adult.

The second defense, is contributory negligence. This can get a little tricky, but one would have to argue that the plaintiff was negligent in her actions and contributed to the injury. The 8-year old did raise the carton of food, after supposedly being given directions not to do so. I would hate to be the lawyer to argue in front of a jury that this little girl should have followed directions. I can imagine the cross-examination now, “you know how to follow directions little girl, don’t you?”

Like Almost Everything, Damages Still Need to Be Proved

Besides some special cases, damages of a tort lawsuit still need proven. For a moment, let’s take out possible emotional distress as that’s a gamblers bet, but the actual damage here to little girl’s hand seems minimal. This would be an entirely different conversation, thankfully,  if something worse would have happened as the video shows that she could have been pulled into the water.

Lawyers Tend to Mess Everything Up

This is another time where lawyers could really “ruin” it for everyone. Unless you can physically guarantee protection of your patrons from your dolphins, it would be difficult for any attorney to sign off exposing these “wild” animals to small children.

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