Moerman versus Pierson: The Nexus of Occupancy in Animals Ferae Naturae and Liability in Tort

In Moerman v. State of California, a California appellate court found the state was not liable for damages caused by wild elk involved with a state-guided relocation program. In so doing, the court relied upon a narrow and alternative interpretation of Pierson v. Post’s long-established precedence on the rules of occupancy for animals ferae naturae. This article attempts to illuminate the differences between the appellate court’s interpretation and previous interpretations of those rules. The issues of focus are when can a person acquire an animal ferae naturae, and if acquired, can that person then be held liable for the injuries caused by that wildlife? In particular, these issues were encountered in Moerman and this article reviews the decision of that case and finds it at odds with traditional jurisprudence. This paper finds a clear tradition in common law on when persons can acquire an animal ferae naturae and also finds that such an owner can in some cases be held liable for the tortious acts of that animal. This paper finds that Moerman’s handling of the rule was too narrow and thus incorrectly applied. Had the rule been correctly applied, it is found that the state might have reasonably been found liable for property damage.