§5.2 Harboring Wild Animals

§5.2 Harboring Wild Animals

The Case: Concklin v. Holland , 138 S.W.3d 215 (Tenn. Ct. App. 2003)

The Basic Facts: The Concklin's minor daughter was furnished alcohol and illicit drugs at a house owed by defendants. They brought a wrongful death suit under several theories, including ultra-hazardous activity. The decision is dicta on the liability of one who harbors wild animals, but nevertheless is included for the convenience of the reader. There is no case in Tennessee that is directly on point.

The Bottom Line:

• "Mr. and Mrs. Conklin next argue that it was error for the trial court to dismiss a strict liability claim against Lewis based on the ultra-hazardous activity present at the Fenwick property. Mr. and Mrs. Concklin cite to the [Restatement (Second) of Torts] as support for their assertion of liability against Lewis. Section 519 provides that '[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.' [Restatement (Second) of Torts] § 519 (1977) (emphasis added). In reviewing the Concklin's complaint, it is alleged that Lewis knew or should have known of Will's use of illicit drugs at the Fenwick property. In construing that allegation most favorably towards the plaintiff, this Court cannot infer that his knowledge of drug use is paramount to conducting or 'carrying on' the alleged dangerous activity. Further, '[c]ourts in this state have traditionally classified ultra-hazardous activities as those presenting an abnormally dangerous risk of injury to persons or their property, including the carrying out of blasting operations, the storage of explosives or harmful chemicals, and the harboring of wild animals.' Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App.2003), perm. app. denied (Tenn. Sept. 2, 2003). Although this is not an exclusive list, this Court is not prepared to infer that the use of drugs and alcohol is to be included as an ultra hazardous activity. Accordingly, we affirm the trial court's grant of the 12.02(6) motion as to the ultra hazardous claim against Lewis." 138 S.W.3d at 222-23.