The Supreme Court of Texas, per Chief Justice Hecht, issued a fascinating opinion applying the “Ferae Naturae” doctrine to the question of whether an employer is liable under the FELA when an employee contracts West Nile Virus from a mosquito. For those of you who don’t remember, or weren’t paying attention in Property, ferrae naturae refers to a wild animal–as opposed to a domesticated animal. This distinction at common law was critical with respect to the rule of capture.
Here is the canonical holding from the majority opinion in Pierson v. Post:
We are the more readily inclined to confine possession or occupancy of beasts feræ naturæ, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.
The ferrae naturae doctrine also extended to tort law. A property owner was not liable for injuries caused by wild animals on his property, because these animals could not be controlled. It was on this basis that the Supreme Court of Texas ruled that that Union Pacific Railroad was not liable under the Federal Employers’ Liability Act when a mosquito bit a worker, who contracted the West Nile virus.
Here is the beginning of the analysis section:
Human dominion over animals28 entails, under the common law, responsibility for their actions in some circumstances but not in others. The common law divides animals into two groups: animals domitae naturae or mansuetae naturae—that is, tame or tamed, domestic animals—and animals ferae naturae—that is, wild, usually found at liberty.29 Insects are treated as wild animals.30 Broadly speaking, and with various exceptions, the owner of a domestic animal is liable, and sometimes strictly liable, for dangerous propensities of which the owner knows, but usually not for its unexpected actions,31 while a person who owns, possesses, or harbors a wild animal is strictly liable for its actions.32 The rule of strict liability is old, dating at least to the 1846 English decision in May v. Burdett.33 “[I]t is important to observe, that the gist of the action is the keeping of the animal after knowledge of its mischievous propensities.”34
Thus, as a rule, under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee.38
Even better is Footnote 28, which cites (what else) the Book of Genesis.
28 See Genesis 1:28 (English Standard Version) (“And God said to them [i.e. man and woman], ‘Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.’”).
God bless the state of Texas.
Here is the holding of the case:
On the facts before us, the ferae naturae doctrine applies, and thus Union Pacific owed Nami no duty to prevent his infection with mosquito-borne West Nile virus. Following carefully the analysis prescribed by the United States Supreme Court in Gottshall, we are bound to conclude that as a matter of law, Union Pacific could not be negligent and liable to Nami under FELA.
Somewhere, the property professors of Chief Justice Hecth’s law clerks are smiling. I always tell my students that understanding the common law rules about capturing animals is important. They never believe me. Now, I have proof.
H/T Jason Steed.