Males not Inherently Dangerous

Every once in a while an opinion comes along that reminds me why we endure the intermittent drudgery of reading the advance sheets. The recent decision by the Washington Court of Appeals in Rhodes v. MacHugh[1] is one such decision. Without making light of the serious injuries Mr. Rhodes suffered, which were not at all funny, males everywhere thank Mr. Rhodes for the sacrifice he made in service to the gender.

Plaintiff Rhodes and Defendant MacHugh were long-time friends, neighbors, and farmers. MacHugh had bred sheep for decades. Rhodes had raised cows, horses, pigs, and goats, but the events that led to suit were his “first excursion with sheep. And an unfortunate one.”[2]

Rhodes agreed to pasture MacHugh’s new ram (a youngish one, referred to as a “lamb ram”), which showed no vicious tendencies and initially was friendly and caused no problems. Then, without warning, the ram attacked Rhodes from behind, knocking him to the ground in a prolonged attack.[3]

During the attack, a neighbor stopped by to bring Rhodes some cantaloupes and saw what was going on. Rhodes told her not to come into the pasture, but “she began throwing her cantaloupes at the ram, which was sufficiently distracted that Mr. Rhodes was able to crawl to the gate.”[4]

Rhodes suffered very serious injuries. He sued MacHugh but did not contend that the lamb ram was abnormally dangerous, “and he refused to accuse his friend of negligence, testifying, ‘I don’t think Mr. MacHugh thought there was anything wrong’ with the ram.”[5]

Hence the question: will the owner of a ram not known to have abnormally dangerous tendencies be strictly liable, based solely on the ram’s gender, for injuries caused by the ram?

The Court of Appeals gave the question the serious analysis it deserves. It began by noting the general rule that owners are strictly liable for injuries caused by domestic animals known to be abnormally dangerous; otherwise, the owner must be negligent for liability to arise.[6] Rhodes asked for a gender- or breed-based modification of the general rule based on a comment to Section 23 of the Restatement (Third) of Torts, which suggests that “[i]n the future, courts might wish to give consideration to particular genders or breeds of a species that involve danger levels uncommon for the species itself.[7] If so, it might be appropriate to impose strict liability, without individualized scienter, on the owner of such an animal.”[8]

The Court of Appeals responded by noting that prior versions of the Restatement had not ignored the relatively more dangerous propensities of male domestic animals but pointed out that strict liability had been rejected to date “because often it is the very characteristics that cause the males to be dangerous that make them useful to society.”[9] Thus:

[T]he virility which makes [bulls, stallions, and rams] dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, justifies the risk involved in their keeping. Therefore the law has not regarded bulls, stallions and rams as being abnormally dangerous animals to be kept under the strict liability stated in this Section.[10]

Persuaded that this reasoning remains sound, the court refused to change the historically limited scope for strict liability: maleness does not lead to strict liability for injuries.

And so it goes. Males everywhere breathed a sigh of relief. Their distaff handlers, perhaps not so much.

–David N. Bruce


[1] __ Wn. App. __, 361 P.3d 260 (2015).

[2] Id. at 261.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 262.

[7] Id.

[8] Id.

[9] Id. at 263.

[10] Id.

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