Tragedy today at Pittsburgh Zoo

[Kraftster]

Kraft, Shyster - is this a situation where the mother's contributory negligence wouldn't be imputed on the child in a wrongful death case?

Good question. Let me see.

[Kraftster]

As super careful and nervous a dad as I am, I dislocated my daughter's elbow two weeks ago by picking her up by her hands. I never felt comfortable doing that, but I saw everyone doing it and kids kind of like it, so I started doing it from time to time maybe a month ago. I just innocently picked her up and the weight on her elbow caused the bone to dislocate from the joint. One of the worst moments/feelings in my life, hearing her arm pop and seeing it hang there and hurt. Thankfully a simple fix at the ER.

"nursemaid's elbow"?

Yep.

[MRandall25]

Again, the San Diego Zoo is, for the most part, all open. No one has been killed there.

It doesn't matter what the Pittsburgh Zoo did or didn't do. The fact that nothing like this has happened since 1898 is pretty damning evidence against the mother.

It all could've been prevented had the mother not put her child there. Period.

[Godric]

they should put a tiger in the pavilion. people wont get close to the railing then

[GaryRissling]

As super careful and nervous a dad as I am, I dislocated my daughter's elbow two weeks ago by picking her up by her hands. I never felt comfortable doing that, but I saw everyone doing it and kids kind of like it, so I started doing it from time to time maybe a month ago. I just innocently picked her up and the weight on her elbow caused the bone to dislocate from the joint. One of the worst moments/feelings in my life, hearing her arm pop and seeing it hang there and hurt. Thankfully a simple fix at the ER.

"nursemaid's elbow"?

Yep.

That was our first emergency visit too - never happened again though.

[Shyster]

Kraft, Shyster - is this a situation where the mother's contributory negligence wouldn't be imputed on the child in a wrongful death case?

Good question. I just looked, and PA has abolished any notions of intrafamily immunity. So the child's estate could sue the mother for negligence.

[Kraftster]

As super careful and nervous a dad as I am, I dislocated my daughter's elbow two weeks ago by picking her up by her hands. I never felt comfortable doing that, but I saw everyone doing it and kids kind of like it, so I started doing it from time to time maybe a month ago. I just innocently picked her up and the weight on her elbow caused the bone to dislocate from the joint. One of the worst moments/feelings in my life, hearing her arm pop and seeing it hang there and hurt. Thankfully a simple fix at the ER.

"nursemaid's elbow"?

Yep.

That was our first emergency visit too - never happened again though.

Gah. Was the worst.

Here's hoping the same is true for us -- I expect that it will be.

[TheHammer24]

Kraft, Shyster - is this a situation where the mother's contributory negligence wouldn't be imputed on the child in a wrongful death case?

Good question. I just looked, and PA has abolished any notions of intrafamily immunity. So the child's estate could sue the mother for negligence.

And the mother and zoo would be jointly and severally liable, right? If so, it looks like the zoo would bear 100% of a damages award, although I think your exercise was an interesting one, Shyster.

[ExPatriatePen]

As super careful and nervous a dad as I am, I dislocated my daughter's elbow two weeks ago by picking her up by her hands. I never felt comfortable doing that, but I saw everyone doing it and kids kind of like it, so I started doing it from time to time maybe a month ago. I just innocently picked her up and the weight on her elbow caused the bone to dislocate from the joint. One of the worst moments/feelings in my life, hearing her arm pop and seeing it hang there and hurt. Thankfully a simple fix at the ER.

"nursemaid's elbow"?

Yep.

I think your daughter should get a good attorney

No, wait...

[Kraftster]

Kraft, Shyster - is this a situation where the mother's contributory negligence wouldn't be imputed on the child in a wrongful death case?

Good question. I just looked, and PA has abolished any notions of intrafamily immunity. So the child's estate could sue the mother for negligence.

And the mother and zoo would be jointly and severally liable, right? If so, it looks like the zoo would bear 100% of a damages award, although I think your exercise was an interesting one, Shyster.

PA has a new joint liability statute. I don't know it as well as I should because the joint liability cases I have right now pre-date the statute. I will double check it and report back. I want to say its something like a codefendant is only jointly and severally liable for damages of other codefendant(s) if found to be more than 60% at fault or something.

[Shyster]

I’m thinking this for the Zoo will be covered by Section 304 of the Restatement (Second) of Torts, which Pennsylvania has adopted. Under that section:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

“An invitee must demonstrate that the proprietor deviated from its duty of reasonable care owed under the circumstances.” Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.Super. 2006).

A business like the Zoo doesn’t have make sure that an invitee is entirely, completely protected from the harm. The invitee only has to undertake reasonable care to protect against the danger, which is the level of care that is reasonable under the circumstances. In this case, the Zoo provided a 4’ fence and a railing that slopes backward. The rest of the enclosure is surrounded by fencing. If there is a sign that says “don’t place anything on railings,” that would be even better. I would say the protective measures were all reasonable under the circumstances.

Also note that the business will also only be liable if it is expected that the invitee either will not discover the danger or will not protect themselves against it. I think a person should be able to recognize the danger inherent in lifting a small child onto a railing over an enclosure holding wild predatory animals. The danger is obvious.

[Shyster]

PA has a new joint liability statute. I don't know it as well as I should because the joint liability cases I have right now pre-date the statute. I will double check it and report back. I want to say its something like a codefendant is only jointly and severally liable for damages of other codefendant(s) if found to be more than 60% at fault or something.

Correct, and that’s why I did the poll. If the Zoo is hit with say 10% liability versus 90% for the mother, it will only pay 10% of whatever damages are awarded.

[AlexPKeaton]

I would be pretty surprised if the Zoo doesn't pay out the butt. I imagine someone has something on video that will come out during a civil trial. That is like game over if shown to a jury.

[newarenanow]

This **** just got too confusing for me.

[AlexPKeaton]

And my answer is 20% Mother / 80 % zoo.

Reason?

What killed the boy? The dogs. Who owns the dogs? The zoo.

Mother is responsible for broken legs. Zoo is responsible for the viscous mauling.

[TheHammer24]

I’m thinking this for the Zoo will be covered by Section 304 of the Restatement (Second) of Torts, which Pennsylvania has adopted. Under that section:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

“An invitee must demonstrate that the proprietor deviated from its duty of reasonable care owed under the circumstances.” Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.Super. 2006).

A business like the Zoo doesn’t have make sure that an invitee is entirely, completely protected from the harm. The invitee only has to undertake reasonable care to protect against the danger, which is the level of care that is reasonable under the circumstances. In this case, the Zoo provided a 4’ fence and a railing that slopes backward. The rest of the enclosure is surrounded by fencing. If there is a sign that says “don’t place anything on railings,” that would be even better. I would say the protective measures were all reasonable under the circumstances.

Also note that the business will also only be liable if it is expected that the invitee either will not discover the danger or will not protect themselves against it. I think a person should be able to recognize the danger inherent in lifting a small child onto a railing over an enclosure holding wild predatory animals. The danger is obvious.

With respect, this isn't very helpful to lawyers or lay people. The Zoo is still subject to an ordinary negligence rule which accounts for foreseeability and the burden on the defendant to improve the safety of the exhibit -- both things that Kraftster focused on.

Not to mention, maintain an exhibit with wild beasts may be considered an ultrahazardous activity subject to strict liability but I have no idea what the law is on that.

[Letang Is The Truth]

Lawyers' Thread of Obscurity

[Godric]

never thought I would foe anyone but I just foed someone in this thread because they are so obviously trolling

[MRandall25]

How are you supposed to foresee a mother dropping her child into a wild dog exhibit if it's never happened before anywhere?

[Sarcastic]

As super careful and nervous a dad as I am, I dislocated my daughter's elbow two weeks ago by picking her up by her hands. I never felt comfortable doing that, but I saw everyone doing it and kids kind of like it, so I started doing it from time to time maybe a month ago. I just innocently picked her up and the weight on her elbow caused the bone to dislocate from the joint. One of the worst moments/feelings in my life, hearing her arm pop and seeing it hang there and hurt. Thankfully a simple fix at the ER.

"nursemaid's elbow"?

Yep.

I think your daughter should get a good attorney.

If Shyster accepts lollipops, this is the case to take.

[shafnutz05]

And my answer is 20% Mother / 80 % zoo.

Reason?

What killed the boy? The dogs. Who owns the dogs? The zoo.

Mother is responsible for broken legs. Zoo is responsible for the viscous mauling.

Nothing worse than being brutally attacked by a few quarts of Castrol GTX

[TheHammer24]

How are you supposed to foresee a mother dropping her child into a wild dog exhibit if it's never happened before anywhere?

If that was the rule, defendants would never be liable for things that have never happened before. As I mentioned, it's foreseeable that creating something that is meant to be observed by children but yet unobservable as they designed it will result in children being picks up to see it. And i submit that it has happened before (that children were picked up by their parents) based on others' observations.

[llipgh2]

And my answer is 20% Mother / 80 % zoo.

Reason?

What killed the boy? The dogs. Who owns the dogs? The zoo.

Mother is responsible for broken legs. Zoo is responsible for the viscous mauling.

Nothing worse than being brutally attacked by a few quarts of Castrol GTX

I just spit water everywhere.

[meow]

And my answer is 20% Mother / 80 % zoo.

Reason?

What killed the boy? The dogs. Who owns the dogs? The zoo.

Mother is responsible for broken legs. Zoo is responsible for the viscous mauling.

People really think like this?

[AlexPKeaton]

How are you supposed to foresee a mother dropping her child into a wild dog exhibit if it's never happened before anywhere?

Lets just put it like this. Say this was a pit of acid right next to an elementary school. Would it be acceptable for the owner of this pit of acid to have a 4 foot railing and no other safety measures, even if no one has ever fallen in?