Another thought in the vast chorus of thoughts surrounding the death of Harambe, the western lowland gorilla at the Cincinnati Zoo - last September I was fortunate to be able to follow a life-long dream and go Mountain Gorilla trekking in Rwanda. Mountain gorillas are only found in three countries in East Africa (Rwanda, Uganda, and the Democratic Republic of Congo) and are not able to survive in captivity. In the 60's and 70's, many adult mountain gorillas were killed so that their babies (the entire family unit will fight to the death to save a baby) could be taken to a zoo - where it was thought they would be preserved from extinction. None survived. Why is unknown, although they do live in highly structured family groups - that structure is more complex than western lowland gorillas. While other gorilla populations are shrinking at an unsustainable rate, the mountain gorilla population is flourishing – so much so we have to consider whether the loss of their habitat will enable them to keep flourishing at the current rate. But this has taken decades to accomplish and has to address a huge issue: poverty.
The Dian Fossey Gorilla Fund International has done an incredible amount of work to educate people about the plight of mountain gorillas. There is a monument of mountain gorillas as you enter the volcanoes region that states: "If you give us peace, we will give you prosperity." Our porters may have been poachers 10 to 20 years ago - now they make a good living wage acting as porters. While there were fewer than 300 mountain gorillas 20+ years ago, now there are close to 900! I'm not advocating a position on zoos and their role with endangered species. It is wonderful, however, that without a single mountain gorilla in a zoo, that their population is actually thriving. Maybe this will have a positive effect and get more people contributing to groups that are actively working to save our endangered species on the ground and tackling the complexity of issues preventing our endangered species from thriving.
On the loss of the western lowland silverback, Harambe - it is sad all around. Generally, silverbacks are very gentle and loving fathers. They do get aggressive when another silverback is trying to take over a family unit - and they may kill babies to bring the mother into season - if they win the battle. It does not always happen, however, and silverbacks have adopted those babies fathered by other silverbacks. They also can posture aggressively to keep the family in line or safe - we heard the silverback of one group stop two females from quarreling with his behavior. I would have liked to see the zoo officials have the chance to try to lure Harambe away from the boy, but the crowd was out of control and causing more distress to him by screaming and shouting. There was no time to educate the crowd about gorilla etiquette - the mom screaming out to the child did not help, either. It might not have been safe for the zoo to take other action if Harambe was not habituated to the zoo keepers. We were clearly instructed to follow all of the trackers/warden's instructions - do not maintain eye contact, speak in a calm cadence, make submissive noises - the gorilla is in charge! Our wardens had years of contact with their gorilla family and can translate their actions/communications - it's not clear that this is the relationship that the zoo had with Harambe.
Was there negligence?
In 38 years, no child had ever gotten into the gorilla enclosure. To get in the enclosure, the boy had to climb over a three foot tall horizontal barrier, some bushes and then he was on the ledge above the moat. It seems that this was not sufficient to protect the gorillas or visitors, but was it negligent? The mom was at the zoo with four children (I do not know their ages). This child told his mother he was going to get in the moat with the gorilla. She told him he was not going to get in the moat with the gorilla. She turned her attention away, from eyewitness accounts, for a minute. Tragedy resulted. She knows her child -- if he is a willful child who follows through with his pre-announced intentions -- she was negligent. If this was a new behavior, then she was not negligent. An eyewitness has said that after the boy made his declaration, he actively began trying to break through the barriers. An eyewitness said, she tried to grab the boy when his mother failed to act. I realize accidents happen in a split second; I felt my mother had the arms of an octopus when she had three young children to watch - if she was carrying one child, then she had the hand of another who had the hand of the other - especially when we suggested we were tempted to do something we should not do! But accidents do happen. This mother may or may not have been negligent; I don't have the facts to judge. It is sad people are suggesting that she should be killed or the child's father should be killed or that the child should have been killed! It is sad that people are quick to advocate death. It is sad we cannot always co-exist with animals as we were meant to exist.
Whether the mother was criminally negligent is being examined by the Cincinnati Police Department.
On the other hand, many are asking if the zoo was negligent by not making the gorilla enclosure inaccessible. The likely standard the zoo will be judged by in a civil lawsuit, if one is brought by the parents, is whether the zoo had knowledge of the defect and failed to take reasonable precautions to protect its guests. Two years ago, the Pittsburgh Zoo settled a lawsuit with parents who lost their two year old child when he was mauled to death by endangered painted dogs after he fell into their enclosure. The child's mother lifted him up over a 4 foot wooden railing so he could better see into the enclosure. He lunged forward and slipped from his mother's grasp. He bounced off a net meant to catch debris and trash and fell into the exhibit. The zoo claimed that the mother was solely responsible for the loss of her son. The parents claimed that the zoo was aware of the defect in the exhibit - and produced safety committee meeting minutes from five years before the tragic accident - observing that on four occasions, parents had been observed dangling their children over the enclosure. The settlement was confidential.
Like the Pittsburgh case, the Cincinnati Zoo could argue that their liability, if any, was the result of the parent's negligence. If the doctrine of comparative fault is available, the zoo's damages can be reduced by the amount of the parent's fault. For example, if a jury decides that the zoo is 25% at fault and the parents were 75% at fault, and the jury awards the family $5,000 in damages, the zoo would only be responsible for $1,250.
A major difference between the two cases: in Harambe's case, the child suffered only a minor concussion from falling into the moat. In the Pittsburgh case, the child died. The amount of legal damages is vastly different.
Some states have laws making the owners of wild animals, including zoos, strictly liable (a guest is hurt by an animal, the zoo is automatically responsible for their damages). I am not aware whether this is the standard in Ohio.
It does take quite a bit of time for a tranquilizer to take effect - during that time, who knows what could have ensued. The zoo chose the option it felt best given their knowledge of Harambe under exigent circumstances in order to protect the child. No doubt the actions of the zoo were dictated, in part, by results of zoo lawsuits. This was a very sad situation all around. I, along with many others, including his gorilla family, mourn for the loss of Harambe and for the zoo officials who had to make a horrible decision. If you have read through my tome, perhaps you will consider supporting a group like the Dian Fossey Gorilla Fund International or Gorilla Docs or The Center for Whale Research or some other group studying and advocating for endangered species in the wild.
Diane Russell is an attorney who is committed to serving her clients with the highest standard in the legal community. In her spare time, she enjoys hiking, traveling, photography, cooking, is the mom to Spanky, and an avid Seahawks fan. Blog posts will eventually get around to some legal issue, but not in ways you might typically expect from an attorney.