Against my best judgment, i accepted a guest post (The 10 Commandments of Zombies) from someone trying to advertise her pre-paid cellphone site. A high school friend of mine, who is now a lawyer, asked if i’d give him the same consideration. i said i’d accept nothing less than a post outlining who you could sue for damages in the aftermath of the Zombie Apocalypse. Being awesome, he obliged.

If the Zombie Apocalypse is a real concern for you (and it should be), bone up on your zombie-killing skillz at ZombieGameWorld.com (Twitter: @zombiegameworld), the best source of free zombie games on the Internet.



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Identifying Tortfeasors and Causes of Action in the Probable Event of a Zombie Apocalypse

Sean P. Bawden, B.A. (Hons), LL.B.

Barrister, Solicitor and Notary Public in and for the Province of Ontario

According to an article published in the American newspaper USA Today, “Zombie hordes are everywhere!… There’s no stopping the zombie invasion.” The risk of personal and property damage due to zombie attack has never been higher.

The Zombie Apocalypse: not a question of “if”, but “when?”

Given the number of exclusion clauses currently being inserted into many homeowners’ insurance policies, the chance that you are covered in the event of a zombie uprising is steadily decreasing.

What, then, is an innocent party, suffering damage due to zombie uprising, to do?

The “Ghostbusters” were known for asking “Who ya gonna call?” Certainly to rid oneself of the ghost in question, the answer would be “a ghost buster.” But what if the ghost caused property damage? The Ghostbusters, while concededly learned in the ways of engineering, would be of no value in a court of law. The answer to the latter question therefore must be “a lawyer!” The answer is equally true if the cause of the damage was a zombie and not a ghost.

Who you gonna call? Dewey, Lipschitz and Menderchuck.

This research memorandum therefore canvasses the topic of possible common law tortfeasors against which one could bring a civil action for recovery of damages due to zombie uprising and the causes of action one could advance against such wrongdoers.

This paper starts by considering against whom one could even consider an action. Once the possible defendants are set out, one must also consider on what possible grounds one would be able to advance any such case.

Understandings and Assumptions

For the purposes of this memorandum the author has assumed that the presumptive plaintiff would not have insurance coverage. One should of course consult his or her own insurance policy to ensure whether or not coverage actually exists.

For the purposes of this memorandum, “zombies” will be defined to mean a reanimated human corpse, not controlled by another. Although the actual reanimation itself will by necessity be the result of a living being’s actions, this research will assume that the zombies’ actions following reanimation are the result of the zombies’ own freewill.

This memorandum does not concern itself with zombies whose minds are controlled through Haitian voodoo/vodoun.

Furthermore, this memorandum only considers the issue of liability, not damages. Quanta of damages would have to be assessed on an individual basis.

Defendants

In the event that one suffered “damages”, as the term is defined and understood in law, as the result of a zombie uprising, plaintiffs’ lawyers would be called upon to identify not only likely defendants, but defendants against whom recovery is probable.

Given the operation of joint and several liability, and section 1 of the Ontario Negligence Act, R.S.O. 1990, c. N.1, plaintiffs would only have to establish that a defendant was partially responsible for their damages in order to recover the entire amount of their damages from that defendant. This is to say that provided that one could establish liability against one defendant with the means to satisfy the damages’ award, the plaintiff would be able to be made whole.

For the purposes of this section, the author puts forward possible defendants without consideration of whether or not an action could actually be maintained. Certainly in the case of some, if not all, of the proposed defendants, the defence of remoteness could easily be maintained.

1. Zombies

Joint and several liability is reassuring, as the most obvious defendant to any such action would the zombie itself. Given the novelty of the action, and the uncertainty of the law surrounding this issue, plaintiffs would be wise to name not only the zombie, but also the estate of the person so reanimated when issuing any action. For example, if zombie Ryan Creighton caused property damage, one would be prudent to name all of “Ryan Creighton”; “The Zombie formerly known as Ryan Creighton”; and “The Estate of Ryan Creighton”. By operation of Rules 7 and 9 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, one would also be prudent to name a litigation guardian for the zombie and estate.

Whether or not one’s estate could be liable for damages caused by zombie actions is yet unresolved in Canadian law.

2. Re-animator

Creating life has its consequences. Indeed even if one does not bring the life itself into creation, having care and control of a living being is enough to ground liability if that creature causes damage to another: c.f. Dog Owners’ Liability Act, R.S.O. 1990, c. D. 16. Bringing people back from the dead is inherently risky.

It is this author’s considered opinion that any person who reanimates the dead must be considered a party to any action in which, as a result of that reanimated corpse’s actions, damages result.

3. Family of the Deceased

Zombies only result from reanimated corpses. By logical extension, where there is no corpse there cannot be any zombie. Cremation removes this possibility. By failing to cremate the deceased, families burying their dead have created an undue risk to the living.

Of all the defendants considered in this memorandum, the defence of remoteness is strongest for these defendants.

4. Cemeteries and all those Working at Cemeteries

I ain’t sayin’ he’s a gravedigger …

The geographical starting point for any Ontario zombie uprising will be a cemetery. Home to, in some cases, thousands of corpses, cemeteries are fertile ground for the coming horde. Intuitively one considers the failure to keep zombies within their gates as the grounds upon which one would advance a case for zombie damage. Why else do they build those fences if not to keep the zombies in?

5. Casket Manufacturers

Of course, cemeteries would have less to worry about if casket manufacturers would simply make a sturdier product. The failure to design a casket that would contain a zombie surely puts these parties in the spotlight in any product liability action.

Causes of Action

The rule in Rylands v. Fletcher

When thinking about zombies rushing out of cemetery gates, the first cause of action that comes to one’s mind is the rule in Rylands and Fletcher.

In Rylands v Fletcher, [1868] UKHL 1 the House of Lords established that,

The person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape

Zombies are likely to do mischief if they escape. However, cemeteries do not bring zombies onto their land. Cemeteries bring the dead – not the undead – onto their land. And it is not the escape of the dead about which one is concerned.

As such it is this author’s opinion that one could not successfully use the rule in Rylands and Fletcher to maintain an action against a cemetery for damages resulting from a zombie uprising.

Intentional Torts

It is questionable whether or not the zombies would be committing “intentional” torts. In order to establish liability one would have to establish, likely via expert evidence, that the zombies were capable of understanding the consequences of their actions. It is difficult to comment on whether or not one would be successful in this regard. Furthermore it is questionable against whom one would have the right, or ability, to collect.

Negligence

Without question, the general heading of negligence is the most likely cause of action to be advanced in any such case.

In general, the elements of negligence are duty, standard, and causation. Remoteness, although a defence to the allegation and not a ‘true’ element, must also always be considered in the analysis.

For reasons of remoteness, the family of deceased persons must be stricken from the list of potential defendants. Clearly it is too remote, at least at this time, to hold someone liable for failing to cremate his or her loved one when there is yet to be a single reported case of zombies causing property damage. Similarly, even if one could defeat the remoteness argument, policy reasons would invariably defeat the suit.

Cremation: not necessary to protect against zombie liability

Interestingly, one must consider what the standard of care expected of a zombie is. If the movies provide us any indication, it is that we must expect that zombies will cause damage. No action would therefore lie against the zombie in negligence.

Zombies: off the hook for damages

Clearly persons choosing to reanimate the dead have a duty to the public to ensure that, if successful in their attempts, zombies do no harm. The failure to properly ensure proper safeguards for the public would fail to meet the standard expected of them, the result of which is that if damages result, liability should follow.

Re-animators must perform due diligence to ensure their charges do not commit vandalism

Casket makers must be alive, no pun intended, to the chance of corpse reanimation. Given that the intended user of their product is dead, their duty of care in manufacturing must attach to the living. The living expect that caskets will keep the dead within the confines of the casket. What other purpose is there for a casket if not to keep the dead within it? The failure to manufacture a product that can withstand not only the weight of the deceased during transportation, but also a ravenous zombie hell-bent on destruction fails, in this author’s opinion, to meet the standard expected of a reasonable casket manufacturer.

Ask your casket maker if the product features escape-resistant latches

Similarly, cemeteries must owe a duty to the public to ensure that zombies cannot escape from their grounds. Although conceptually similar to the rule in Rylands and Fletcher, the duty here is different. In negligence the cemetery is asked to foresee the possibility of zombies and then protect against them, even though they are not expressly inviting zombies onto their land. Furthermore, given the fact that most cemeteries already guard against zombie escape (recall earlier comments about fences), the failure to build an adequate containment system may sound in negligence.

Open-concept graveyards like this one may leave their owners vulnerable to litigation

Conclusions and Recommendations

It is never too early to be prepared, and knowledge is power. The purpose of this memorandum has been to consider, in advance of a zombie uprising, against whom to bring an action for property damage in the event of property damage due to zombie.

This memorandum has canvassed both possible defendants and possible causes of action.

Having considered both, this author has reached the conclusion that in the event that one suffers damage at the hands of a zombie, the party so aggrieved should invariably bring suit against the person responsible for the uprising. (With any luck that person will work within a well-insured laboratory against which one could establish vicarious liability.) Out of an abundance of caution, one must also consider bringing suit against both the manufacturer of the casket from which the zombie escapes, and the cemetery that similarly fails to contain it. Both are likely well-funded defendants capable of satisfying any costs award.

Although counter-intuitive, this author does not recommend bringing any action against the zombie itself. The uncertainties that would envelope the litigation would only serve to bog down the process and the chances of recovery seem slim at best. Furthermore, this author has no interest in cross-examining a zombie.