Tigers and Strict Liability

A couple driving through the African Lion Safari was mauled by a tiger in 1996. They were just awarded compensation of over $2million. It is likely that this award did nothing to promote efficiency. [from the Globe & Mail (registration required)]

One of the issues disputed during the trial by the lawyer for the African Lion Safari, was whether the pair had their car windows rolled down as they toured the park.

Ms. Cowles testified that she couldn't recall whether the windows were up or down, but added that Mr. Balac must have accidentally hit the power window button with his foot when she "jumped" to his side of the car after being startled by the tiger as it jumped toward the car.

It looks as if this might have been an efficient accident, depending on what you believe about the evidence. What I mean is

• given that people want to see wild animals in unfenced, natural environments, and
• given that the park can and does instruct the visitors to keep their windows rolled up

then if someone slips and rolls the power window down and is unable to roll it back up before being mauled, then it is pretty hard to stop this from occurring. The only question is where to assign the loss. It doesn't matter who has to pay, the assignment of liability will not have any deterrent effect or cautionary effect. Making the park pay, contrary to the opinion of the plaintiff's insurance company lawyer, will not have any impact on their behaviour.

John Soule, who acted on behalf of Mr. Balac's insurance company, said he suspects the decision will force changes to such theme parks.

"I think the ruling will have an effect upon the way any animal farm now does business in the future," he said. "There are other similar farms in North America and Europe; I suspect that, if the decision stands, that type of business will have to reconsider how they deal with the public and their product."

Really? I wonder what changes the park could make that are sensible under the givens I listed above. If I am correct, the park will find it efficient to compensate people who can't control their power windows rather than take other action, and there will be no change in their behaviour. My suspicion is that the judge just doesn't like wild animal parks:

"There is no question . . . that tigers are dangerous, unpredictable, wild predators. Persons who display such animals in out-of-control settings should, in my view, be held strictly liable for any damage resulting from such display," the Superior Court judge said.

Strictly liable. That means they pay even if they weren't negligent. Why?

My own view, to paraphrase the judge, is "There is no question that tigers are dangerous, unpredictable, wild predators. Persons who visit parks with such animals in out-of-control settings should, in my view, be held strictly liable for any damage resulting from visiting such a display." The visitors are in a position to increase their level of care efficiently; or they can stay home if they do not wish to assume the risks voluntarily.

Maybe Madam Justice Jean MacFarland need to see some cockboxing matches.