Abrevaya v. Palace Theatre & Realty Co.
25 Misc. 2d 600, 197 N.Y.S.2d 27, 1960 N.Y. Misc. LEXIS 3604 (1960)
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Rule of Law:
The legal classification of an animal as 'ferae naturae' (wild by nature) for the purposes of imposing strict liability is a question of fact to be determined by a jury, not a question of law to be decided by a court on a motion for summary judgment, especially when legal and scientific authorities disagree.
Facts:
- An infant plaintiff and her father were paying patrons at the Palace Theatre, operated by the defendant.
- The performance included an act called “Bandy’s Greyhounds & Monkeys”.
- During the act, a rhesus monkey riding on a greyhound left the stage.
- The monkey entered the orchestra loge where the plaintiffs were seated and attacked the infant plaintiff.
- The defendant presented evidence that the monkeys in the act were trained, domesticated, and had performed for three years without incident.
- The monkey was reportedly on a leash during the performance.
Procedural Posture:
- The plaintiffs (daughter and father) sued the defendant (Palace Theatre operator) in a New York trial court.
- The complaint alleged causes of action for both negligence and absolute (strict) liability for harboring a wild animal.
- The defendant filed an answer denying that the monkey was a wild animal and detailing the animal's training and the care taken.
- The plaintiffs moved for summary judgment, asking the court to rule that the defendant was strictly liable as a matter of law and to proceed to a trial only on the issue of damages.
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Issue:
Is the question of whether a rhesus monkey is a 'wild animal' (ferae naturae), for the purpose of imposing strict liability, a question of law for a court to decide or a question of fact for a jury?
Opinions:
Majority - Matthew M. Levy, J.
No, this is a question of fact for a jury. The court held that it cannot determine as a matter of law whether a rhesus monkey is a wild animal for the purposes of strict liability. The court reasoned that there was a split of authority in legal texts, with some classifying monkeys as invariably wild and others suggesting they are capable of domestication. The court refused to take judicial notice of the monkey's propensities, stating the issue was not a matter of such 'generalized knowledge as are so notorious as not to be the subject of reasonable dispute.' Given the conflicting legal authorities and lack of precedent in New York, the court concluded that the determination required a factual inquiry, likely aided by expert testimony from a zoologist, which is the province of a jury at trial. Therefore, the defendant's evidence of domestication and care created a triable issue of fact, precluding summary judgment.
Analysis:
This decision clarifies the boundary between questions of law and questions of fact in torts involving animals. It establishes that the classification of an animal as 'wild' or 'domestic' is not a static legal category but a factual inquiry that can depend on the specific species and evidence presented. The ruling signals that for animals not universally considered dangerous (like lions or tigers), a plaintiff may not be able to rely on a pure strict liability theory and may have to overcome factual arguments about the animal's potential for domestication. This case also underscores judicial reluctance to expand the doctrine of judicial notice to disputed scientific or specialized facts, preferring such matters to be resolved through expert testimony at trial.
