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Restrain your duck -- or wind up in court

By Danny Cevallos
updated 5:06 PM EDT, Wed May 28, 2014
STORY HIGHLIGHTS
  • A woman is suing for more than $250,000 due to attack by a duck
  • Danny Cevallos: The case highlights the standards applied when animals cause harm
  • Domestic animals' owners must know of aggressiveness to be held "strictly liable," he says
  • Cevallos: In case of a wild animal, the owner is assumed to know of the danger

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- A Washington woman is suing her mother's neighbor in Oregon for more than $250,000 to compensate her for pain, suffering and other damages she alleges were inflicted during a traumatic ambush ... by a duck.

Cynthia Ruddell, 62, was visiting her mother's property when, she alleges, a domesticated duck belonging to Lolita Rose attacked her without provocation. In her flight to escape the factious fowl, Ruddell says she fell to the ground, breaking a wrist and spraining an elbow and shoulder. The case and subsequent media reports have highlighted common misunderstandings about tort liability for animals.

Domestic animals: Every duck gets one free nip

Danny Cevallos
Danny Cevallos

In the Beaver State, the owner of a domestic animal is "strictly liable" for the harm caused by the animal as a result of its abnormally dangerous characteristics only if the person knows or has reason to know it is abnormally dangerous.

It's come to be known, somewhat inaccurately, as the "one bite" rule. It's not that every dog really gets one free bite. Instead, if your bichon frisé attacks the pizza delivery guy once, the law says you can no longer deny you don't "know" of Fluffy's dangerous propensities.

"Strict liability" can be thought of as automatic liability, and it's even better for plaintiffs than a theory of negligence. Negligence requires the plaintiff prove some actual wrongdoing or substandard behavior for a defendant to be liable. Strict liability is less common, but it's much better for plaintiffs, because it holds people criminally or civilly liable for the act itself, even if they meant no harm, and acted with the utmost care.

Cevallos: Hands off our data

For all domestic animals, an animal owner may also be liable for injuries under a theory of negligence. Negligence is failing to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. Strict liability is automatic -- no matter how much care you took to prevent injury.

Wild animals: Wild owners, strict liability

For wild animals, the rule is different. Sonny Crockett had a pet alligator on "Miami Vice"; Mike Tyson famously spent his money on tigers that slept in his bed. If you're one of these special people who absolutely need a puma or a boa constrictor, know that you will be automatically, strictly liable for any harm to others. Wild animals have not been generally domesticated and are likely, unless restrained, to cause personal injury. In this case, the plaintiff concedes the duck is a domestic one, but interestingly enough, waterfowl actually run the gamut from harmless to "killer."

In the personal-injury world, cases are defined largely by an axis of two factors: liability (how bad or innocent defendant's behavior was) and damages (how badly the plaintiff was hurt). If the duck owner's behavior is deemed negligent, she will be on the hook for all injuries, even if the plaintiff has an "eggshell skull," or is unusually fragile. The Oregon duck attack case would likely be described in the world of plaintiffs' lawyers as "average liability, good damages."

News reports often give undue attention to the dollar amount demanded in a court-filed civil complaint. A complaint is the document that initiates a lawsuit when filed with the court.

Here's what news reports aren't telling you about these pleadings: Lawyers don't pay attention to the amount demanded in a complaint. It has little bearing on the ultimate value of a settlement or a jury award. In fact, in many jurisdictions, a complaint frequently won't demand any specific dollar amount.

On the other hand, if you are in Brooklyn or Queens, complaints routinely demand millions of dollars -- amounts that might seem outlandish in Kalamazoo, Michigan.

For the most part, the dollar amount alleged in the complaint serves only jurisdictional or administrative purposes. For example, for a federal court to have jurisdiction over most personal-injury cases, the plaintiff must demand more than $75,000. In other state courts, the amount demanded helps the court determine how to classify and route the case. Ask any veteran insurance defense attorney: He or she will tell you lawyers don't care about the demand for a precise amount of money. They care about the facts.

And that's how this case will play out. If the duck owner was negligent, or had knowledge of the dangerous nature of this duck, and the duck's behavior foreseeably caused the injuries, the owner will be liable for all those injuries. A broken wrist and an injured rotator cuff have real value as damages, and could actually be "worth" the amount claimed. But the final amount will be determined using tangible medical records and bills -- not by a fanciful number in a pleading.

The law of animal liability is about to become more relevant than ever, as we are increasingly a society that insists upon people bringing their pets with them everywhere: work, restaurants and airports. Soon public places will be full of service poodles, service parrots and service iguanas -- until we just won't care about confirming whether they are really even service animals.

It will happen gradually, but within a few years we won't even notice that we are seated at a fine restaurant next to a German shepherd. Don't believe me? Did you imagine 10 years ago that dogs would be wandering around in airports, using the Cinnabon stand as a fire hydrant? It's coming. Adorable or not, they are still animals, and they still bite, or quack, or attack. I suppose we'll have to learn to bite back.

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