Buck Off

A well-fed deer can do a lot of damage.
Joe Forkan

Early this month Robert Longoria headed toward his Bay City home on a semirural stretch of Texas 35 through Brazoria County. In the area of the Bar X Ranch subdivision west of Angleton, a deer darted from the brush into the roadway.

Longoria, 27, slammed into the animal, injuring his back and suffering whiplash. He instantly joined the estimated 500,000 U.S. motorists annually who collide with deer.

A few days later Bar X property owners would become the prey in a hunt not for deer, but for another kind of bucks. Subdivision manager Helen Phillips retrieved the mail and saw the letterhead from the Houston law firm of Robert Kwok, board certified in personal injury law.

It was a formal demand letter to the subdivision. Forward the correspondence to their insurance carrier or attorney within 15 days "or we will have no choice but to institute legal proceedings against Bar X Ranch," it stated.

Phillips says she first thought one of the 250 or so residents was playing a joke on her. "Then I got to the last page and said, 'This man's serious.' "

Kwok's letter contended that the residents were liable for Longoria's accident and therefore should pay unspecified amounts to cover his injuries and damages. On what grounds? Some of the Bar X home owners regularly feed the deer. That attracts the animals from the Brazos River bottomlands to the subdivision -- and they may wander into the nearby roadways in the process.

Had Longoria crashed into cattle, or even somebody's loose gorilla, he could have been in tort heaven. But Bambi and her bunch are largely tort-free under Texas law. "Wildlife, by law, belongs to the people of the state," says Tom Harvey, chief spokesman for the Texas Parks and Wildlife Department.

His agency functions as a "steward" overseeing Texas's abundance of deer, he says. Individual landowners, or even subdivisions, cannot be considered to "own" native wildlife, even if they feed them or provide shelter. The few exceptions are for animals clearly under the control of a person, such as a petting-zoo operator.

Those are the legal standards, dead or alive. Authorities say the state even has control over deer killed in auto crashes. Law enforcement officers have the option of giving the venison-on-the-hoof to the motorist if that driver asks for it -- or they can have it disposed of or donate the edible remains to others.

Officials believe the problem of auto-deer accidents is increasing for a variety of reasons. Research by the Central Insurance Companies found that the U.S. deer population has more than doubled since the '80s. Factors for the Houston area are more cars, and suburban growth bringing more roadways and encroaching on natural deer habitat. The estimated 500,000 collisions with deer annually resulted in more than 100 human deaths, CIC reported. The average insurance claim for an accident is $2,000.

In more than seven years as a plaintiffs' attorney, Kwok says, he has pursued many cases involving animals -- bulls, dogs and horses. Even if deer are considered to be property of the state, there are other potential legal avenues against the subdivision. By feeding the deer, even if the animals are eating only the garbage, Bar X may be negligent for creating a dangerous situation for motorists, he said in a prepared statement.

"There certainly exists a fact issue with regard to whether Bar X residents negligently created a nuisance by reportedly attracting deer to the area," he said in the statement. "Thus, a valid claim does exist under Texas law."

Phillips and some others say the only nuisance would be a frivolous suit by Longoria. Jon Opelt, Houston director of Citizens Against Lawsuit Abuse, termed it an attempt at a "bushy-tail lawsuit reaching to misplace blame." "It is such a farce," he added.

"It's like he runs into a wild animal, then tries to get someone else to blame for his lack of skill in avoiding a road hazard," says Opelt. "He has tried to conjure up a legal theory to steer around the fact that individuals don't own wildlife."

Bar X has to cope with the good and bad of wildlife, Phillips says. Deer have destroyed flower gardens and trees there, but residents aren't going to start shooting them, she says. She believes the attorney "just thought that these people out here at Bar X are just dingy people." Kwok must have felt the group would be spooked by the letter and would pay off, Phillips says.

In the end, the does didn't add up to dough for Longoria. Kwok announced that Longoria's insurance carrier is coming up with the money to cover his medical bills. His statement said the firm won't be pursuing a suit against Bar X "at this time."

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