HOA Liable for Wild Animal Attacks on Common Areas? Probably Not in Texas

A lawsuit out of Georgia poses interesting questions regarding the liability of a homeowners association for wild animal attacks.

In that case, an elderly woman was mauled by a sizeable gator who took up residence in an HOA-owned lagoon. The victim's family filed suit, alleging that the HOA was negligent in not removing the wild gator. An excellent synopsis of the case can be found in the Claims Journal at this link.

While the chances of getting mauled by a gator are pretty slim in the vast majority of Texas, there are many dangerous wild animals throughout the Lone Star State. Nevertheless, our HOA-meets-wild animal laws, focus more on urbanization's effect on deer populations (and trapping) than on attacks.

However, the liability of Texans for injuries inflicted upon invitees by wild animals on their premises is an interesting study.

Texas law has long recognized the doctrine of FERAE NATURAE, which makes the acts of wild animals an exception to the duty of care owed to a visitor on a given premises. Meaning "animals of a wild nature or disposition," ferae naturae is a common law doctrine tracing its origins back to the Roman empire whereby wild animals are presumed to be owned by no one specifically but by the people generally. State v. Bartee, 894 S.W.2d 34, 41 (Tex.App.—San Antonio 1994, no pet.). Specifically, ferae naturae provides that wild animals belong to the state and no individual property rights exist as long as the animal remains wild, unconfined, and undomesticated. Even one's status as the owner of land upon which the animals ferae naturae are found is insufficient to confer individual property rights to the animals thereon. Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 876 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.).

The rule of law has developed that a landowner cannot be held liable for the acts of animals ferae naturae, that is, indigenous wild animals, occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Gowen v. Willenborg, 366 S.W.2d 695, 697 (Tex.Civ.App.—Houston [1st Dist.] 1963, writ ref'd n.r.e.).

The general rule is this: Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person's safety, as well as the extent of that threat. Thus, ordinary attacks by rattlesnakes, rutting bucks, fire ants and scorpions would probably not succeed in Texas.

However, a premises owner in Texas could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

The facts related to the HOAs knowledge about and actions related to the gator will probably be dispositive in the Georgia case.