Nicholson v. Smith

In Nicholson v. Smith, 986 S.W.2d 54 (Tex. App.--San Antonio 1999, no writ), the plaintiff was stung by fire ants while staying at a recreational park. The Court found that the plaintiff was attacked by indigenous wild animals in their natural habitat, in the normal course of their existence. Nicholson v. Smith, 986 S.W.2d at 62. The defendants did nothing to cause the fire ants to act outside of their expected and normal behavior. Id. The plaintiff was not injured while in an artificial structure, nor was he injured where fire ants would not normally be found, nor was the presence of the fire ants due to any affirmative or negligent act of the defendants bringing them upon the property or drawing them to the area where the plaintiff was stung. Id. The Court in Nicholson noted that the existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question, and the Court did not find that the facts surrounding the occurrence in question supported the imposition of a duty. Nicholson v. Smith, 986 S.W.2d at 62. The Court stated: "We do not say a landowner can never be negligent with regard to the indigenous wild animals found on its property. A premises owner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the 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." Nicholson v. Smith, 986 S.W.2d at 63. Nicholson v. Smith, examined premises liability for personal injuries caused by wild animals in general and fire ants in particular. A resident of a privately owned RV park died after being stung over 1,000 times by fire ants while working under his house trailer. Id. at 57. The appellate court affirmed summary judgment for the landowner. Id. at 64. Relying on the precedent established in Gowen v. Willenborg, the appellate court reasoned that the resident was attacked by indigenous wild animals in their natural habitat, and the landowners did nothing to attract the fire ants onto their property or to incite aberrant behavior. Id. at 62. "A good deal of the vegetation in Texas stings, sticks or stinks. Any number of insects and animals can hurt, or even kill you." Id. "Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person's safety, as well as the extent of that threat. If a landowner was required to affirmatively disclose all risks caused by plants, animals, and insects on his or her property, 'the burden on the landowner would be enormous and would border on establishing an absolute liability.'" Id. at 63-64.