Liability for Animal Damage – Regulation in Latvia
Liability for Animal Damage – Regulation in Latvia, Draft Common Frame of Reference, Lithuania, Estonia and Germany
Pet keeping has been widespread for a very long time, and as it can be seen every day, the tendency to keep pets has certainly not diminished nowadays. However, once a person chooses to keep a pet, the person also takes responsibility for the behavior of the pet and the harm it can do to others. The scope of this liability and possible exceptions to liability governed by the Civil Law of the Republic of Latvia, as well as the regulation of such liability elsewhere in Europe, will be discussed below.
1. Regulation in Latvia
One of the types of liability for damage caused by the nature of things is the liability for damage caused by animals. The Civil Law of the Republic of Latvia (hereinafter – the Civil Law) distinguishes between compensation for losses caused by animals and tort. Such regulation can also be found in the laws of Estonia and Germany, which will be discussed later. Under the Civil Law, pets are property, except in special, statutory cases. 1 The animal is not the subject of liability and therefore the keeper of the animal or wildlife is liable under Article 2363 of the Civil Law for loss caused by a domestic or wild animal unless the keeper can prove that he or she took all safety measures required by the circumstances, or that the damages would have occurred notwithstanding all of the safety measures. The content of Article 2363 of the Civil Law clearly states that the animal keeper is subject to liability for fault. This is evidenced by the behavioral assessment aspect of the article – “took all safety measures required by the circumstances”. This excuse is a category of behavioral assessment, which thus covers the aspect of fault – whether the person has acted as a responsible and accurate proprietor, taking all necessary safety measures. It is therefore unreasonable to claim that strict liability is established here.2
According to Article 2366 of the Civil Law if its owner entrusted the animal that caused the damages to a keeper or guard, the latter shall be liable for all damages, but the owner shall be liable if and to the extent it is impossible to recover damages in this case3, the owner is subsidiary responsible. In such cases, the person’s guilt is presumed assuming that the person responsible has failed to pay special or particular attention that is necessary in relation to the domestic or wild animal, and this presumption may be rebutted by proving that the person responsible has taken all necessary and possible safety measures4, namely proving the absence of his own guilt.
Case law recognizes that compensation for damages caused by animals is governed by Articles 2363-2388 of the Civil Law, which are special provisions in relation to Articles 1775, 1776 and 1779 of the Civil Law, and therefore the plaintiff does not have to prove the infringer’s unlawful action in damages5. Thus, it can be concluded that in cases of damage caused by animals it is necessary to prove the existence and extent of the loss, as well as causality. On the other hand, the keeper of the animal shall be relieved of the obligation to pay the loss only if he proves that he has taken all necessary safety measures to avoid the damage or proves that the damage would have occurred despite all the safety measures.6
However, not all loss caused by animals, even direct damage, is to be compensated. For example, damages do not have to be compensated if the victim himself knowingly exposed himself to the possibility of self-harm, or if the victim’s actions were unlawful and the damage was caused by preventing such acts, for example by catching the offender.7
In applying the provisions of this chapter it should be noted that the Civil Law is inconsistent with regard to the use of the terms “loss” and “damage”. It would be more appropriate to write “responsible for the loss” rather than just “for the damage”. And the amount of compensation for the loss caused is also determined by the general rules, that is, by Articles 1770-1729 of the Civil Law, as well as Articles 2347-2351 and Article 2354.8
2. Regulation in the Draft Common Frame of Reference
Draft Common Frame of Reference (DCFR) is a substantial document made by the Study Group for a European Civil Code. The DCFR is not a legislative document of the European Union, but is intended to assist the legislative functions of national parliaments. The DCFR is a purely scientific source, the application of which is left to the discretion of each country, and countries may derogate from these principles.9 This document serves as a guide to the development and unification of civil law in the Member States of the European Union, so it is useful get acquainted with the DCFR when studying civil law institutes in Europe.
Article VI.-3: 203 of the DCFR provides for the liability of the animal keeper for the causation by the animal of personal injury and consequential loss, loss suffered by third persons as a result of another’s personal injury or death, and loss resulting from property damage. This article is placed under the heading ‘Liability without intention or negligence’, and also this liability does not contain any list of excuses for retreat of liability. It can thus be concluded that the liability of the keeper of the animal under the DCFR is strict liability and there is no need to look at the person’s fault.
3. Regulation in Lithuania
In the Lithuanian Civil Code10 the liability for damages caused by animals is included in the section on non-contractual (tort) liability. Article 6.267 of the Lithuanian Civil Code states that damage caused by domestic animals or wild animals under the supervision of a person11 must be compensated by their owner (keeper). The person is also liable for the damage caused by the animal that has escaped him or her. The law also provides exceptions from this liability, and the owner will not be liable if he or she can prove that the damage was caused by a superior force or by the victim’s actions (intentional or negligent act).
A peculiarity of the Lithuanian Civil Code is that these exceptions to liability are found in the liability arising from the exercise of hazardous activities, such as (operation of motor vehicles, machinery, electric or atomic energy, use of explosive or poisonous materials, activities in the sphere of construction (Article 6.270 (1)). Such regulation suggests that the Lithuanian Civil Code equates liability for damage caused by animals with liability for a source of increased danger within the meaning of the Latvian Civil Law, and the guilt occurs irrespective of the owner’s safety precautions.
4. Regulation in Estonia
Section 1060 of the Estonian Law12 of Obligations Act stipulates that the keeper of the animal is liable for damages caused by the animal. At first it may seem that such regulation is not much different from the Latvian Civil Law, but looking at the structure of this Estonian law, it can be seen that the liability of the animal keeper is regulated under the section of liability for damage caused by a source of increased danger. And, as required by Section 1056 of the Estonian Law of Obligations Act, the person who manages the hazardous object is responsible for causing the damage, regardless of which person is to blame. Thus, it can be concluded that, contrary to the Latvian Civil Law regulation, which provides that the animal keeper is to be held responsible for the fault, the Estonian law applies liability irrespective of fault.
5. Regulation in Germany
Article 90a of the German Civil Code states13 that animals are not property and are protected by special statutes. However, the rules applicable to property are also applicable to animals, unless otherwise provided.
A peculiarity can be seen in the regulation on the liability of the animal keeper, as it provides both strict liability and liability for fault. Article 833 (1) of the German Civil Code provides that the keeper of the animal is liable to compensate the injured party for the damage arising if a human being is killed by an animal or if the body or the health of a human being is injured by an animal or a thing is damaged by an animal. Strict liability is clearly stated here and there are no exceptions to liability.
Further, the second sentence of the article provides that liability for damage does not apply to cases where the damage is caused by a domestic animal intended to serve the occupation, economic activity or subsistence of the keeper of the animal and either the keeper of the animal in supervising the animal has exercised reasonable care or the damage would also have occurred even if this care had been exercised. Within the meaning of this paragraph, liability is applicable for fault, where, similarly as in Latvian regulation, fault is presumed. It follows that German Civil Code distinguishes between liability in respect of the animal, which caused damage.
A similar liability is also laid down in Article 834 of the German Civil Code, which imposes liability on a person to whom the animal has been entrusted but is not the owner of the animal. In particular, the person who, by contract, is responsible for the care of the animal shall be liable for any loss or injury caused to the animal as provided for in Article 833. The responsibility does not apply if he exercises reasonable care in supervision or if the damage would also have occurred even if such care had been exercised. It can be inferred from this article that, contrary to Article 833 of the German Civil Code, such a person is liable irrespective of the animal under his supervision. Consequently, this article does not distinguish between animal species.14
Considering the previously mentioned, it can be concluded that, although the national rules on damage caused by animals impose the liability on animal owners (keepers), which may initially suggest that the rules on liability do not differ significantly from one country to another, each country has its own conditions. The Civil Law of the Republic of Latvia states that the animal keeper is subject to liability for fault, thus stipulating that the animal owner may be exempted from the obligation to compensate for loss in certain cases. However, there are countries that further distinguish between liability for the animal that caused the damage and countries that provide strict liability for the damage caused by the animal, without fault or exclusions of liability.