Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done if, but only if, (a) he intentionally causes the animal to do the harm, or (b) he is negligent in failing to prevent the harm.
Defendant's donkey had escaped from its pen and wandered onto a highway where plaintiff's rig struck it, causing damage to the rig. The first trial ended in a directed verdict for defendant, which was reversed because evidence presented by plaintiff concerning the adequacy of the fence used to contain the donkey had generated a question for the jury. Plaintiff, before the second trial, added a strict liability count, and by stipulation the original negligence count was dismissed with prejudice. Defendant donkey owner challenged the ruling from the Superior Court, Penobscot County (Maine), which entered judgment for plaintiff tractor-trailer owner on remand from plaintiff's earlier appeal to the court in plaintiff's action for damages coming from an accident that occurred when the rig struck the donkey.
Is a highway traveler who is injured by colliding with a stray domestic animal limited solely to his remedy in negligence?
On defendant's appeal following the second trial, the court held that the superior court erred in imposing strict liability on defendant. There was no basis in common law for so doing. The imposition of strict liability for trespass protected the crucial rights of the possessor of land to its exclusive use and control. Strict liability could not serve the same purpose in the instant case because no individual had the right to the exclusive use and control of a public highway. Plaintiff was left solely to his remedy in negligence. The degree of care required of defendant was commensurate with the propensities of the donkey and with the location of the of the place where the animal was kept. The court vacated the superior court's judgment for plaintiff and remanded the case with directions to enter judgment for defendant.