ROCs and the Doctrine of "Ferae Naturae"

Regular followers of my blog recall that I've discussed the challenges resident owned communities face when dealing with animals such as feral cats, muscovy ducks and black bears.

Many of our ROCs in South Sarasota County (and several in Pasco County) have struggled with the problem of another type of unwanted visitor--in this case, wild hogs.

Full-time residents of Florida know that living here requires accepting that our climate and sunshine is shared by all types of wildlife--in most cases, man and beast get along fairly well.   This "live and let live" attitude was displayed in a very entertaining article about a hive of "local" honey bees in today's Sarasota Herald Tribune.

But what happens when the opposite occurs--and a landlord is sued when a tenant dies as a result of a reaction to fire ant bites occurring on the landlord's property?

A recent case from Florida's Fourth District Court of Appeals provides an answer.

A resident in a mobile home park was bitten by fire ants while walking his dog within the park and died from those bites less than two days later.

His estate sued the owner of the mobile home park for wrongful death and alleged that the park owner should have been on notice of a fire ant infestation in the area where the resident was allegedly bitten.  The park owner's community manager testified that she was unaware of any other resident ever having been attacked by fire ants at the park and was also unaware of any fire ant infestation at the area of the park where the attack allegedly occurred.

The park owner did have an exterminator spray insecticide every other month in order to kill ants and an employee of that exterminator testified that he had no knowledge of any ant activity or reason to recommend treating the area where the alleged incident took place.

The exterminator confirmed that red fire ants are "wild animals" and that their natural habitat is outdoors in South Florida and further stated that permanently eradicating fire ants from a property would be impossible.

Other employees of the park owner testified that any visible ant mounds would be treated with granules, that several members of the parks maintenance staff would occasionally be bitten by ants and that the exterminator would be called if park residents reported "something out of the ordinary with too many red ants or anything like that."

The trial court granted the park owner's motion for summary judgment, holding that the park owner was not on notice of a fire ant infestation at the location of the alleged attack and thus did not have a duty to guard against red fire ants.

The Fourth District Court of Appeals affirmed the judgment in favor of the park owner and cited "ferae naturae," which is a doctrine which relates back to the Roman Empire and is based on the fact that wild animals are unpredictable and cannot be controlled.

The Court stated:

"Generally speaking, in Florida, the law does not require the owner or possessor of land to anticipate or guard against harm from animals Ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality."

Because the park owner did not harbor, introduce, or take possession of the fire ants, and attempted to treat any mounds or other infestations of fire ants, the park owner could not be held liable for the resident's death.

The Court did warn that landowners could be responsible in regards to wild animals found in artificial structures or places where they are not normally found if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises and if the landowner cannot expect others to realize the danger or guard against it.

So much for living in "Paradise"!