Employees of a Wal-Mart store in Louisiana where a wild nutria allegedly attacked a customer may have made the retailer liable for the attack by befriending the rodent, whom they had named Norman.

The doctrine of “ferae naturae” usually shields landowners from liabilty for the acts of indigenous wild animals on their property. Nutrias, also known as “swamp beavers,” are indigenous to Louisiana's marshes and swamps and not the premises of retail establishments.

But victims of wild animal attacks can pierce the shield if the premises owner “has actually reduced the wild animal[ ] to possession or control.” And Rebecca White might have one of those rare cases as a result of her alleged close encounter of the furred kind with Norman the nutria at a Wal-Mart in Abbeville, La., on Oct. 11, 2008.

According to White's petition for damages, she had been shopping for about 30 minutes when “suddenly and without warning a large wild nutria came from behind the coke rack and ran straight towards petitioner.”

“Fearing for her safety,” the lawsuit says, she pulled her shopping cart “towards her to protect her ... and in doing so the cart rolled over her left foot causing her to stumble.” The cart was full of items she was going to purchase and she suffered “disabling injuries to her back and foot.”

White alleges store employees were on first name terms with the nutria, telling her “they could see that she had an encounter with 'Norman,' a name the employees had given to the rat.”

The suit seeks unspecified damages for the employees' alleged failure to “take all appropriate steps to protect petitioner from coming into contact with the nutria,” including capturing or killing Norman before she came to the store. White's husband alleges loss of consortium.

The findings of a Texas appeals court in a case against a retail store where a customer was bitten by a rattlesnake appear favorable to White. A premises owner, the court said in Overstreet v. Gibson Produce Co., 558 S.W.2d 58 (1977),

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.

While nutria are not known to be as dangerous as rattlesnakes, White says her assailant “had been running loose in defendant's store for days and other shoppers had encounters with it before petitioner's encounter.”

On the facts alleged by White, the case is certainly distinguishable from Nichols v. Lowe's Home Center, 407 F.Supp.2d 979 (2006), in which a judge said an Illinois woman could not sue the store where a bird flew into the back of her head because the store did "nothing more than passively allow a wild bird to be on its land."

Another Illinois court in 2007 dismissed the case of a woman who alleged a shopping mall failed to protect her from an aggressive squirrel, finding she had not shown that “the Defendant harbored the squirrel” or “the kind of relationship between the Defendant and the squirrel” that would impose a duty on the defendant.

There was no evidence, at least, that employees of the mall had named the squirrel.

By Matthew Heller
5/17/09