The Mississippi Supreme Court recently ruled that the gardener who fell and got hurt, Janet Olier, didn’t have a premises liability case but might have grounds to pursue a dangerous-propensity question. The state court sent the case back to a Jackson County judge to sort out.
Mississippi’s premises liability law applies to slip-and-fall lawsuits and other claims against landowners. It also assumes that a business or homeowner has a duty to provide “a reasonably safe environment.”
Dangerous propensity generally refers to whether Donna Bailey knew her geese had anger issues and whether she was liable for the Olier’s injuries. Dog bites are an example of this kind of case.
A Jackson County judge said he couldn’t find that the geese had been aggressive in the past, so he threw out Olier’s lawsuit, which sought $200,000 in damages.
Olier was visiting Bailey to see some plants. Court records say Bailey had a “Beware-Attack Geese” sign in her yard. Bailey kept several five-gallon buckets of water in the yard lined along the edge of the porch to provide the geese drinking water and keep the birds off the porch.
As Olier stepped over the buckets, a goose squawked at her. Olier said the large goose stretched out its neck as if it meant to bite her. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese.
Bailey said the geese would not bite if the two women walked together, and she offered Olier a bamboo pole to fend them off. When the two women entered the yard, Bailey attempted to lead the geese away. However, the geese saw Olier and approached her, squawking and hissing, according to court records. Frightened and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose nipped her. Olier turned to run, tripped over a bucket and fell, breaking her arm.
Bailey argued the goose that attacked Olier had never bitten or chased anyone before. Olier argued that Bailey had provided a bamboo pole to her for the explicit purpose of fending off the geese, and that meant Bailey knew they were aggressive.
Justice Jim Kitchens said there was no evidence that the particular goose had bitten anyone before. A different, older goose had once chased a police officer out of the Bailey’s yard, Kitchens said.
Kitchens said Bailey saw the geese being aggressive toward Olier so she armed her visitor, trained her to defend herself and volunteered to act as a diversionary decoy.
“Whether a pack of dogs, a herd of rodeo cattle, a swarm of honey bees, or a gaggle of geese — when analyzing the behavior of any grouping of nonhuman creatures with a dangerous propensity collectively, it is unnecessary and counterintuitive to analyze the individualized history of each and every creature in the unit. This has been a truth accepted by mankind since we drew on cave walls,” Kitchens wrote.
“We fear not the wolf, but the pack; not the bee, but the swarm; not the buffalo, but the herd. Janet Olier feared not the goose, but the gaggle,” he wrote. “The bamboo stick was provided for her defense against all of the geese, not just one. Bailey attempted to distract all of the geese, not just one. A jury could find that, under the totality of the circumstances, this incident could have been foreseeable to Bailey.”