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MORRISON v. NOLAN AMUSEMENT CO., 1985 Ohio App. LEXIS 7737 (Ohio Ct. App.

1985)

Judicial History The trial court found in favor of some of the defendants, namely Nolan Amusement Company, that they were not liable for the plaintiffs injuries which were committed by an ape who was residing in a trailer on their property, without their knowledge or consent. Facts On September 15, 1983, Jimmy Estep chained his performing ape to a tree while he readied a new cage for the animal. The ape was spooked by a Morrison who was approaching on a motorcycle. The ape attacked and Morrison sustained several serious injuries. Issue Did the trial court err in its holding that there was no genuine issue as to any material fact as to the liability of the Nolan defendants? Was this holding contrary to the manifest weight of the evidence? a) Is the existence of an animal on a landowners property enough to make the landowner liable for injuries committed by the animal? Rules Absolute liability or strict liability attaches to injuries caused by wild animals that have been reduced to possession and control. Rylands v. Fletcher (1868), L.R. 3 H.L. 330. Such strict liability attaches to one who owns, harbors, keeps, or otherwis e controls a wild animal. 1(A) Personal Injury, Animals, Section 2.01.4 Am. Jur. 2d, Animals, Section 80. Restatement (Second) of Torts, Section 514: Tthe possession of the land on which the animal is kept, even when coupled with permission given to a third person to keep it, is not enough to make the possessor of the land liable as a harborer of the animal. Malloy v. Starin, 191 N.Y. 21, 83 N.E. 588: If the defendant cannot be shown to have been negligent with respect to the public safety, in failing to adopt such reasonable precautions in carrying his freight of wild animals as the nature of the case called for, he has come under no liability to the plaintiff.

Analysis Although there is a duty upon a motor vehicle driver to yield the right of way to a pedestrian in a crosswalk, the pedestrian still has a duty to exercise ordinary care for his or her own safety. This is true whether or not the driver is turning or proceeding forward on a green light, and regardless of whether or not the pedestrian is more than half-way across the street in the crosswalk. Advising the jury of these facts is not erroneous.

Conclusion The Fifth Appellate District of Court of Appeals of Ohio found that the trial court did not err when it found that there was no genuine issue as to any material fact as to the liability of the Nolan Amusement Company defendants. They could not be held liable for the actions of the animal that was residing on their property because strict liability rests with the owner of a wild animal who harbors, keeps, or controls such an animal.

The judgment is affirmed.

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