When a brown recluse bit Henry McCall, no one could have anticipated that the aftermath would shape the future of tort litigation. But that may well have happened in the recent Texas Supreme Court case of Hillis v. McCall. In addressing McCall’s spider bite, the court’s opinion sets legal rules that will likely control future cases involving novel coronavirus exposure.
The facts of the case are straightforward and common. McCall lived in a cabin on Homer Hillis’ property. He helped Hillis with maintenance at Hillis’ bed-and-breakfast. While working on a sink, a brown recluse spider bit McCall. McCall sued Hillis “for negligence under a premises-liablity theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition….”
The case turned on the centuries-old ferae naturae (wild animals) doctrine. Based on the fact that “wild animals ‘exist throughout nature’ and are ‘generally not predictable or controllable,’” there is no “general duty on a landowner with respect to ‘indigenous wild animals in their natural habitat, in the normal course of their existence.’”
The doctrine recognizes an exception, however, if a 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.” Based on this exception, McCall argued that because “Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas,” Hillis should have warned him about that risk.
The court rejected his argument, noting in particular that “McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.”
Accordingly, Hillis owed no duty to McCall: “Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not.”
Poisonous-spider litigation is not a growth industry. But the analysis used by Hillis v. McCall is easily applied to a potential claim about novel coronavirus exposure. The plaintiff in such a case would argue that the defendant knew of an unusual risk on its premises; for example, a visitor to a school could argue that the defendant knew of recent confirmed cases involving faculty members.
The defendant would argue that the risk was no greater than any other location, or that that the plaintiff was equally aware of it. In the school example, it could cite recent statements by local authorities that discouraged any unnecessary visits to public locations.
Obviously, any serious litigation about exposure to the COVID-19 virus would involve a host of other legal and public-policy considerations. But the threshold question—the existence of a legal duty—rests on the ferae naturae doctrine as analyzed in Hillis v. McCall.
The case citation is Hillis v. McCall, No. 18-1065 (Tex. March 13, 2020).
David Coale is an appellate lawyer and partner at Lynn Pinker Cox & Hurst.