Student Blog: Thoughts On The Law And The Legal Field
"DINING WITH SHAMU"
While eating poolside in a marine animal park, at a tourist event called “Dining with Shamu,” a ten-year-old girl looks up from her meal in horror. Between the locked jaws of a killer whale is a woman trainer being thrashed about until she is dead. Park officials had known that the killer whale was connected to two previous deaths.
No, law students. This isn’t an exercise in issue-spotting. It is not a fact-pattern presenting the opportunity to IRAC strict liability for the owner of a wild animal in Torts, or negligent infliction of emotional distress, or abandoned and malignant heart murder in Criminal Law. It is real life. See Helen Kennedy, Killer Whale Kills Trainer at Orlando’s Sea World; Whale Tilikum Linked to Two Other Human Deaths, http://www.nydailynews.com/news/national/2010/02/24/2010-02-24_killer_whale_kills_trainer_at_orlandos_sea_world.html.
Yet in People v. Knoller, 41 Cal.4th 139 (2007), the defendant was charged with murder when her dog mauled and killed a neighbor. The Court ruled that a defendant need not be aware that his or her conduct has “a high probability of causing death” to be guilty of implied malice murder. Instead, it would be enough for one to act with a “conscious disregard for human life.” Id. at 157. Additionally, we know from Torts that the owners of wild animals are strictly liable for damages caused by the wild animal. So, who else was shocked in hearing that, other than added safety measures for the trainers, the killer whale responsible for three deaths is not being treated any differently? That must be some assumption of risk contract that trainers sign! After just one death, wouldn’t the owner of the killer whale responsible be acting with “conscious disregard for human life” in continuing to have the killer whale around people at all? If not, wouldn’t the risk to human life be clear after three deaths, the latest of which was clearly an attack?
I heard on the news that the trainer “would not want anything done to that whale.” But what about the other victims? I wonder if any of the little kids who witnessed the killing have been experiencing nightmares? Would it be negligent infliction of emotional distress that the owners of the killer whale still had poolside meals with this killer whale after it had been involved in two previous deaths? Or has growing up knowing cute, good, ol’ Shamu made us close our eyes to better judgment?
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