August 22, 2008
Neighbor's wild bees create a buzz in court

By ANDREW BERGH
Special to the Journal

It was an unprovoked attack by wild bees.

The victim of the hostile acts? Dennis Belhumeur, a resident of Dover, N.H., who was minding his own business at home when the senseless assault occurred.

The Case of the Swarming Bees involves a legal doctrine with a weird Latin name that harks all the way back to the Roman empire.

But shame on me for getting ahead of myself.

The fateful day was June 29, 2006, which is when Belhumeur was injured by the attacking bees. The place they called home? A nest in a tree belonging to Belhumeur's neighbors, Jason and Jessica Zilm. Belhumuer had complained to them as early as 2003 that the bees were trespassing on his property and posed a danger. But although Jason Zilm allegedly promised to remove the tree, he never did so before the wanton attack. (Sorry, court records don't describe the nature or extent of Belhumeur's injuries.)

Belhumeur later sued the Zilms for damages in Strafford County Superior Court. For one thing, he alleged that his neighbors had negligently failed to abate the wild bees. He also claimed that by allowing wild bees on their property, the Zilms had maintained a “private nuisance” that “substantially and unreasonably interfered” with the use and enjoyment of his property.

So did the Zilms wave a white flag?

Not hardly, as they later moved for summary judgment. Belhumeur's claims should be dismissed, said the neighbors, because they weren't liable for injuries caused by wild animals, or by hazards occurring naturally on their property that injured someone on another property. Siding with the defendants, the trial court found that they owed no common law duty to abate the wild bees. (Common law denotes the law made by judges rather than statutes.)

Belhumeur fared no better in the ensuing appeal.

The New Hampshire appeals court initially addressed his nuisance claim. Under the common law, said the court, property owners have “no affirmative duty” to remedy conditions of “purely natural origin” on their land, not even if they are dangerous or inconvenient to neighbors. This rule applied, the court continued, because Belhumeur nowhere alleged that the Zilms had “contributed to (the) existence” of the bees or their nest. Since the offending bees were instead a purely natural condition of the Zilms' property, the court ruled that the nuisance claim had been properly dismissed.

With respect to his negligence claim, Belhumeur this time got stung by the doctrine of animals ferae naturae. (Translation: animals “wild by nature.”)

This common law doctrine, said the court, traces its origins back to the Roman empire when wild animals were presumed to be owned “by no one specifically but by the people generally.” It eventually spawned the rule that a landowner has no liability for the acts of indigenous wild animals unless they were “actually reduced to possession or control.”

Since the Romans' heyday ended centuries ago, Belhumeur argued that the ferae naturae rule shouldn't apply to modern times and metropolitan areas where people live in close proximity.

But once again, the appeals court disagreed.

The doctrine, said the court, is based on a “reality” — to wit, the unpredictability and uncontrollability of wild animals — that has been unaffected by the passage of time.

The court also felt an “enormous and unwarranted burden” would be imposed on landowners if they had to abate all harm potentially posed to neighbors by indigenous animals, plants and insects on their own property. So after balancing the competing interests, the court eventually concluded that the social importance of protecting people from wild bee attacks was outweighed by the need to immunize landowners from “extended liability.”

In sum, the doctrine of animals ferae naturae, despite its hoary origins, is quite alive and well.

As for whether the same is true regarding the wild bees on the Zilms' property, I'm sorry to report I've heard no buzz about that.