Cincinnati Zoo – It’s Possible to Protect Visitors Without View-Obstructing Higher Fencing
WASHINGTON, D.C. (June 2, 2016): Putting aside who might bring such a law suit, it is likely that the Cincinnati Zoo would be found negligent, and therefore legally liable, for failing to take reasonable precautions to prevent young children and perhaps others from getting into the Harambe gorilla enclosure, says public interest law professor John Banzhaf, who has helped provide the legal theories behind many successful torts cases.
In any event, the key legal issue would be whether what happened was foreseeable enough that the zoo should have taken additional precautions, beyond a 3-foot high fence and some brush, to guard against what in fact occurred, says Banzhaf.
However, what is now very clear is that, since the event did occur, all zoos with similar layouts are now on legal notice that it can happen again, and because the law imposes additional duties once what may in the past have been unthinkable has in fact occurred, they will all have to rethink their current systems.
Cincinnati Zoo – prior legal incidents
For example, prior to 1982, virtually all over-the-counter drugs were sold in drug stores without any tamper-resistant containers because it was not reasonably foreseeable that a deranged person would open them, and surreptitiously replace the legitimate capsules with ones laced with potassium cyanide.
But once it did occur in Chicago, all drug companies were on notice – i.e. such an event became foreseeable – and they were under a new clear legal duty to take reasonable steps, such as using tamper-resistant packaging, to prevent any re-occurrence.
Similarly, prior to the events of 9/11, both the government and individual airlines permitted passengers to carry box cutters and small knives on board aircraft because the use of such items to hijack a plane was thought by many to be unforeseeable.
Once the event in fact occurred, however, it became foreseeable, and therefore even small knives had to be prohibited.
As still another example, passengers’ footwear for years was not inspected because using shoes as a bomb was not considered foreseeable. But, after the experience with Richard Reid, such an occurrence became clearly foreseeable, and it would negligent to ignore it and fail to take appropriate precautions.
If a 4-year old toddler could very quickly both climb the fence and get through the brush before his mother – or anyone else nearby – would even notice, measures designed to keep people out were rather obviously inadequate and therefore negligent.
Cincinnati Zoo – other zoos
Whether or not the child’s mother was also negligent for failing to supervise her son is legally irrelevant, since any such parental neglect is of course foreseeable, especially given the large number of young children who visit the zoo annually.
In other words, institutions must generally anticipate – foresee – that at least a few of their many visitors will be careless, says Banzhaf. Indeed, very young children all too often get separated from parents – in many public places including zoos – when the latter are distracted.
Zoos may argue that, even if an event is foreseeable, the law requires only that they take those precautions which are reasonable, and that installing high view-obstructing fences around all exhibits presenting danger – whether from the animals within, or even from just the dangers of falling into a moat – would be unreasonable because it would adversely affect the viewing pleasure of millions.
This argument was in fact used by Yellowstone National Park to justify not installing high impenetrable fences to prevent visitors from stepping off walkways into dangerous thermal areas.
But Banzhaf notes that zoos don’t have to install impenetrable fences around all dangerous exhibits to avoid being negligent and facing potential legal liability.
Indeed, he says, the Cincinnati zoo and others may well be able to continue using low fences and thick bushes – the same kind that did not deter the 4-year old – if they install intrusion detection systems beyond the fences to sound a loud alarm or loudspeaker warning if, in the future, anyone again climbs the fence.
Today’s sophisticated intrusion detection systems – which can use proximity sensors, infra red beams, plates buried under the soil to detect additional weight, or any combination of devices – can be adjusted so they will not be set off by squirrels or other common animals, rain or other weather, or even trash thrown over the barrier.
With such systems in place, intrusions beyond the fence by any person – e.g., a small child, a drunken or disoriented adult, etc. – would immediately trigger either a loud alarm and/or a prerecorded warning over a loud speaker to alert not only the intruder but also others in the immediate vicinity who can reasonably be expected to restrain the individual or to take other appropriate action.
If people are going to be able to see wild and dangerous animals in a natural looking setting without high fences or other impenetrable barriers between them, there is always a possibility that some one will be able to breach the barriers – as determined individuals have done with security perimeters around airports, and even around nuclear power plants, notes Banzhaf.
But a good intrusion detection system almost certainly would have prevented the Cincinnati tragedy and most other possible similar situations, he argues.
Cincinnati Zoo – Incident puts others on notice
One thing, however, is clear: all zoos are now on notice that situations such as this can occur where similar low fences are being used. This is true even if federal standards do not require more, since juries are free to impose liability even if all government-mandated requirements are met.
If zoos fail to modify their systems so as to prevent a re-occurrence, they can be held liable in court for negligence, and in the court of public opinion for not learning from the Harambe’s tragic death.
Prof. Banzhaf has been called “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” the “Dean of Public Interest Lawyers,” and “The Law Professor Who Masterminded Litigation Against the Tobacco Industry.” He also won over $12 million from McDonald’s in a law suit many called frivolous, forced Spiro T. Agnew to give back the money he took in bribes, and used legal action to slash cigarette consumption, ban cigarette advertising, etc.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ [email protected] @profbanzhaf