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Andrew Bergh
Andrew Bergh

November 30, 2000

Tennessee rooster runs afowl of the law

By ANDREW BERGH
Special to the Journal

It might have been an Andalusian or a Rhode Island Red. Or maybe a Plymouth Rock or a single-comb White Leghorn.

But whatever its breed, the rooster that brutally attacked James Roden was one mean cock. And although Roden somehow survived the despicable assault, his relations with his next-door neighbor will never be the same.

To set the scene, Roden and his wife, Janet, live in a rural part of southeastern Tennessee. Zoned for agricultural use, the area abounds in farm animals. So to afford as much privacy as possible, a six-foot-high fence was erected between the couple’s property and that of their neighbor.

But while a fence is one thing, a barrier is another.

And on the day in question, one of the neighboring roosters – for reasons we will never know – decided to scale the fence and enter the Rodens’ yard.

All hell broke loose just moments later.

Roden, at the time, was lying underneath his car in the driveway, performing some repairs. And as Roden lay there in that fixed and vulnerable state, the rooster, with malice aforethought, ran under his car and viciously started pecking and biting him.

The defenseless man’s shrieks were likely heard for miles around.

But fortunately, the pecking didn’t prove fatal. So once Roden had sufficiently recovered from his wounds, he retaliated by suing the rooster’s owner, Clark Heck, Jr., in Hamilton County Chancery Court. His neighbor was liable for damages, Roden claimed, for negligently failing to control his chickens and letting them escape from his property.

But Heck had a card or two up his sleeve.

In many jurisdictions, a dog bite victim can’t recover damages unless the dog had “vicious propensities” that were known to its owner. Under this so-called “one-bite” rule, the first bite is basically a freebie (because until that happens, the owner has no reason to know Fido might injure someone).

So Heck argued that a “one-peck” rule should apply. And since there was no evidence his rooster had ever attacked anyone else, Heck soon moved to dismiss his neighbor’s claims.

But Roden didn’t just fold his tent and go home.

The “one-bite” rule might apply to canines, he countered, but farm animals are a different story. Instead, Roden claimed, all he had to show was that Heck, either knowingly or negligently, had allowed the marauding rooster to escape his premises.

In Round One, however, the nod went to Heck. According to the judge, it didn’t make any difference which legal standard applied because Roden couldn’t prove his case under either theory.

Beyond the point of no return, Roden filed an appeal. And barely three weeks ago, a Tennessee appeals court finally issued its long-awaited ruling.

Talk about winning the battle but losing the war!

On the one hand, the appeals court agreed with Roden that the “one-bite” rule only applies to dogs.

The court also accepted his proposition that an owner of an escaped farm animal is liable for injuries caused by that animal if the owner negligently allowed it to escape.

But on the issue of Heck’s negligence, the appeals court sided with the defendant.

According to his sworn affidavit, Heck had restrained his rooster with a nylon tie cord that was attached to a barrel in his yard. He had bought this tie cord only one week prior to the incident. And although his rooster had somehow severed its tether, Heck said he didn’t discover that fact until after the attack took place.

Roden, on the other hand, presented evidence that Heck’s chickens – presumably the female kind – had previously escaped and trespassed on his property between 10 and 15 times. His wife also testified how she once told Heck that one of his chickens had escaped and taken up residence in one of their trees.

But the appeals court was less than impressed.

The fact that some of Heck’s chickens had escaped in the past, said the court, didn’t prove that the offending cock – on the day in question – had escaped as the result of Heck’s negligence. And since the undisputed evidence instead revealed that Heck had taken reasonable steps to contain his rooster the day of the incident, the court ultimately ruled that Roden’s claims were properly dismissed.

Now, according to my very reliable sources, the rooster has been a symbol of courage since ancient times. (Encarta isn’t just for kids, you know.) But Heck’s bird certainly has no reason to strut, given its cowardly assault on a hapless victim.

But in view of his loss in the courtroom, one might say that Roden, too, has little to crow about.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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