Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01. 

 

HISTORY: RS 2341; ch. 4979, 1901; GS 3142; RGS 4957; CGL 7044; s. 1, ch. 94-339. 

 

LexisNexis (TM) Notes: CASE NOTES TREATISES AND ANALYTICAL MATERIALS

 

CASE NOTES

Torts : Causation

 

Torts : Negligence : Defenses : Assumption of Risk

 

Torts : Negligence : Duty : Animal Owners

 

Torts : Strict Liability : Injuries Caused by Animals

 

Workers' Compensation & SSDI : Benefit Determinations : Medical Benefits : Rehabilitation

 

             Torts : Causation

 

1. Pursuant to Fla. Stat. ch. 767.01, the words "damage done by their dogs to sheep or other domestic animals or livestock, or to persons" do not include cases where the dog does not itself inflict any damage; where the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed. Smith v. Allison, 332 So. 2d 631, 1976 Fla. App. LEXIS 14426 (Fla. Dist. Ct. App. 3d Dist. 1976).

 

Torts : Negligence : Defenses : Assumption of Risk

 

2. Defendant was entitled to rely on the defense of assumption of the risk under Fla. Stat. ch. 767.01 because plaintiff injured party incited and encouraged the dog's actions that resulted in the fall that caused plaintiff's injuries. Vandercar v. David, 96 So. 2d 227, 1957 Fla. App. LEXIS 651, 66 A.L.R.2d 912 (Fla. Dist. Ct. App. 3d Dist. 1957).

 

Torts : Negligence : Duty : Animal Owners

 

3. Trial judge erred in granting a new trial following a jury verdict finding no liability on plaintiff's claim of injury by a dog pursuant to Fla. Stat. ch. 767.01, where the jury could have properly concluded that the defense of careless provocation under Fla. Stat. ch. 767.04 had been met due to plaintiff's behavior directed at the dog's owner, and where because the verdict was a general verdict, it could not be determined that the jury based its decision on the careless provocation defense. Rosenfelt v. Hall, 387 So. 2d 544, 1980 Fla. App. LEXIS 17138 (Fla. Dist. Ct. App. 5th Dist. 1980).

 

4. Property owners could not be held liable to the victim of a dog attack because they did not own the offending animal. Christie v. Anchorage Yacht Haven, Inc., 287 So. 2d 359, 1973 Fla. App. LEXIS 6188 (Fla. Dist. Ct. App. 4th Dist. 1973).

 

5. Fla. Stat. ch. 767.01 was not applicable to situations where a dog did not take affirmative or aggressive action toward an injured party; where a woman injured her back after she tripped over a dog that was lying on a living room floor, and where there was no indication that the dog had been acting aggressively, the statute did not apply. Rutland v. Biel, 277 So. 2d 807, 1973 Fla. App. LEXIS 6805 (Fla. Dist. Ct. App. 2d Dist. 1973).

 

6. Where dog injured plaintiff, but did not bite plaintiff, dog's owner was not required to have prior knowledge of dog's dangerousness for plaintiff to recover. Josephson v. Sweet, 173 So. 2d 463, 1964 Fla. App. LEXIS 3628 (Fla. Dist. Ct. App. 3d Dist. 1964), cert. dismissed, 173 So. 2d 444 (Fla. 1965).

 

Torts : Strict Liability : Injuries Caused by Animals

 

7. Injured party, who was frightened and fell backward over some bicycles when a barking dog ran past her to join some boys who were playing, did not meet her burden of proof on a summary judgment motion, pursuant to Fla. R. Civ. P. 1.510(c), to show an affirmative or aggressive action on the part of a dog. Cohen v. Wall, 576 So. 2d 945, 1991 Fla. App. LEXIS 2663, 16 Fla. L. Weekly D 808 (Fla. Dist. Ct. App. 2d Dist. 1991).

 

8. The Fireman's Rule, as a common law defense, did not apply to claims under Fla. Stat. ch. 767.01 and Fla. Stat. ch. 767.04, nor did any common law defenses apply to the statutory cause of action based on Fla. Stat. ch. 767.01 and Fla. Stat. ch. 767.04, and the only defenses available were those provided under Fla. Stat. ch. 767.04, which defenses also applied to a claim under Fla. Stat. ch. 767.01. Kilpatrick v. Sklar, 548 So. 2d 215, 1989 Fla. LEXIS 735, 14 Fla. L. Weekly 390, 74 A.L.R.4th 1111 (Fla. 1989).

 

9. Fireman's rule does not protect a dog owner in a lawsuit for damages under Fla. Stat. ch. 767.01. Kilpatrick v. Sklar, 497 So. 2d 1289, 1986 Fla. App. LEXIS 10530, 11 Fla. L. Weekly 2352 (Fla. Dist. Ct. App. 3d Dist. 1986).

 

10. Where police officer was injured while being chased by husband's dogs after entering onto husband and wife's property to investigate why a burglar alarm was sounding, trial court properly dismissed claim against wife because wife did not own dogs and was not subject to liability pursuant to Fla. Stat. chs. 767.01 or 767.04; additionally, with no statute superseding it, the common law defense of the fireman's rule was not abrogated and could be asserted by wife. Kilpatrick v. Sklar, 497 So. 2d 1289, 1986 Fla. App. LEXIS 10530, 11 Fla. L. Weekly 2352 (Fla. Dist. Ct. App. 3d Dist. 1986).

 

11. Fla. Stat. ch. 767.01, which was consistently construed to virtually make an owner the insurer of a dog's conduct, did not bar the dog owner from seeking contribution from the active tortfeasor, because Fla. Stat. ch. 768.31, of the Uniform Contribution Among Tortfeasors Act, provided for contribution among tortfeasors even though the liability of the parties rested on different grounds. Wallace v. Strassel, 479 So. 2d 231, 1985 Fla. App. LEXIS 17128, 10 Fla. L. Weekly 2667 (Fla. Dist. Ct. App. 4th Dist. 1985).

 

12. Because Fla. Stat. ch. 767.01 provides that dog owners shall be strictly liable for any damage done by their dogs, it was improper for the lower court to rule that the statute didn't apply in the circumstances of the instant case, where defendant's dog, tied to a wagon, chased after another dog causing the wagon to injure plaintiff's leg; the dog was the proximate cause of the injury, even if the injury was not necessarily the result of some "canine characteristic" and, as such, was covered by the statute. Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1985 Fla. LEXIS 3412, 10 Fla. L. Weekly 159 (Fla. 1985).

 

13. Dog owner was strictly liable under Fla. Stat. ch. 767.01 for injuries caused to a child when a wagon being pulled by the dog struck the child; under ordinary standards of causation, the accident was caused by an affirmative or aggressive act of the dog. Jones v. Utica Mut. Ins. Co., 1984 Fla. LEXIS 2909 (Fla. May 3 1984).

 

14. While chasing another dog present in the area constituted the type of canine characteristic within the contemplation of Fla. Stat. ch. 767.01, it was not that conduct which directly caused injury because, but for the wagon to which the dog was tied and which struck the victim, no injury would have occurred. Utica Mut. Ins. Co. v. Jones, 408 So. 2d 769, 1982 Fla. App. LEXIS 18971 (Fla. Dist. Ct. App. 2d Dist. 1982), quashed, 463 So. 2d 1153 (Fla. 1985).

 

15. Trial judge erred in granting a new trial following a jury verdict finding no liability on plaintiff's claim of injury by a dog pursuant to Fla. Stat. ch. 767.01, where the jury could have properly concluded that the defense of careless provocation under Fla. Stat. ch. 767.04 had been met due to plaintiff's behavior directed at the dog's owner, and where because the verdict was a general verdict, it could not be determined that the jury based its decision on the careless provocation defense. Rosenfelt v. Hall, 387 So. 2d 544, 1980 Fla. App. LEXIS 17138 (Fla. Dist. Ct. App. 5th Dist. 1980).

 

16. Defenses under Fla. Stat. ch. 767.04 where available to dog owner sued pursuant to Fla. Stat. ch. 767.01 by bite victim to recover damages for injuries incurred when victim fled from owner's guard dogs. Rattet v. Dual SEC. Sys., 373 So. 2d 948, 1979 Fla. App. LEXIS 15544 (Fla. Dist. Ct. App. 3d Dist. 1979).

 

17. Although the validity of Fla. Stat. ch. 767.01 cannot now be questioned because of the rules relating to statutory re-enactments, it should be given a restrictive scope because the compiler placed words in the compilation that were not there when the act was adopted. Wendland v. Akers, 356 So. 2d 368, 1978 Fla. App. LEXIS 15129, 4 A.L.R.4th 343 (Fla. Dist. Ct. App. 4th Dist. 1978), cert. denied, 378 So. 2d 342 (Fla. 1979).

 

18. Fla. Stat. ch. 767.01, which imposed liability on dog owners for damage done by their dogs, was construed to impose strict liability on a dog owner for injuries received by a nearby child when the dog passively stepped on a loaded shotgun, causing it to discharge and injure the boy; the strict liability statute was held applicable even though the dog did not act aggressively, but merely became entangled with the shotgun on a car seat. Mapoles v. Mapoles, 350 So. 2d 1137, 1977 Fla. App. LEXIS 16833 (Fla. Dist. Ct. App. 1st Dist. 1977), cert. denied, 364 So. 2d 888 (Fla. 1978).

 

19. Pursuant to Fla. Stat. ch. 767.01, the words "damage done by their dogs to sheep or other domestic animals or livestock, or to persons" do not include cases where the dog does not itself inflict any damage; where the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed. Smith v. Allison, 332 So. 2d 631, 1976 Fla. App. LEXIS 14426 (Fla. Dist. Ct. App. 3d Dist. 1976).

 

20. In a case where injured party jumped over a fence and landed on a dog, breaking his leg, summary judgment in favor of injured party was not proper because it did not appear as a matter of law that the dog did the damage complained of. Scott v. Gordon, 321 So. 2d 619, 1975 Fla. App. LEXIS 15575 (Fla. Dist. Ct. App. 3d Dist. 1975).

 

21. Under Fla. Stat. ch. 767.01 husband and wife were strictly liable for damages caused by their dog to the injured party; evidence did not show that the injured party's speed was the sole proximate cause of the accident which would have removed liability from the husband and wife dog owners to the injured party. Allstate Ins. Co. v. Greenstein, 308 So. 2d 561, 1975 Fla. App. LEXIS 14533 (Fla. Dist. Ct. App. 3d Dist. 1975).

 

22. In connection with a claim that plaintiff was injured as a result of the actions of his neighbor's dog, it was error to instruct the jury to consider the possible negligence of the victim in determining liability; in a dog injury case it is no defense that a plaintiff acted unreasonably unless his behavior was so blatant as to supersede the dog's behavior as the legal or proximate cause of plaintiff's injuries. English v. Seachord, 243 So. 2d 193, 1971 Fla. App. LEXIS 5377 (Fla. Dist. Ct. App. 4th Dist. 1971), cert. dismissed, 259 So. 2d 136 (Fla. 1972).

 

23. Parents of a child who was struck and killed by an automobile after he had been frightened by a dog and had run into the street could maintain an action against the dog owner under Fla. Stat. ch. 767.01; the issue of whether fear of the dog was the cause of the death was for the jury to determine. Brandeis v. Felcher, 211 So. 2d 606, 1968 Fla. App. LEXIS 5485 (Fla. Dist. Ct. App. 3d Dist. 1968), cert. denied, 219 So. 2d 706 (Fla. 1968).

 

24. A dog owner was responsible, pursuant to Fla. Stat. ch. 767.01, for an injury that her dog inflicted on plaintiff; because the liability of dog owners for injuries sustained under 767.01 was based on an obligation as an insurer rather than on negligence, there was no need to show scienter, contributory negligence was not a defense, and there was no triable issue in the record as to assumption of risk. Knapp v. Ball, 175 So. 2d 808, 1965 Fla. App. LEXIS 4235 (Fla. Dist. Ct. App. 3d Dist. 1965).

 

25. Petitioner dog owner could be liable under Fla. Stat. ch. 767.01 to respondent individual who was injured by petitioner's dog even though those injuries were not the result of a bite, as there were no features contained in Fla. Stat. ch. 767.04 which would justify a finding that Fla. Stat. ch. 767.01 had been repealed. Sweet v. Josephson, 173 So. 2d 444, 1965 Fla. LEXIS 3388 (Fla. 1965).

 

Workers' Compensation & SSDI : Benefit Determinations : Medical Benefits : Rehabilitation

 

26. Court properly affirmed an award to employer and worker's compensation carrier, of a proportional share of employee's settlement from a negligent third party tort-feasor because the statutory defense of contributory/ comparative negligence under Fla. Stat. ch. 767.04 was applicable. Associated Home Health Agency, Inc. v. Lore, 484 So. 2d 1389, 1986 Fla. App. LEXIS 7012, 11 Fla. L. Weekly 740 (Fla. Dist. Ct. App. 4th Dist. 1986).

 

 

TREATISES AND ANALYTICAL MATERIALS

 

1. 3-70 Florida Forms of Jury Instruction §  70.02, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.02 Owner's or Keeper's General Liability for Injury Caused by Dog, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

2. 3-70 Florida Forms of Jury Instruction §  70.03, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.03 Owner or Keeper of Dog, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

3. 3-70 Florida Forms of Jury Instruction §  70.04, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.04 Plaintiff's Lawful Entry on Private Property, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

4. 3-70 Florida Forms of Jury Instruction §  70.06, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.06 Burden of Proof, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

5. 3-110 Florida Forms of Jury Instruction §  110.50, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  110.50 Firefighter's Rule, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

6. 2-40 Florida Torts §  40.01, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.01 Introduction, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

7. 2-40 Florida Torts §  40.03, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.03 Statutory Strict Liability for Injuries Caused by Dogs, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

8. 2-40 Florida Torts §  40.04, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.04 Defenses to Strict Liability, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

9. 2-40 Florida Torts §  40.05, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.05 Negligence as Alternative Theory of Recovery, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 

 

§  767.04.  Dog owner's liability for damages to persons bitten

 

   The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words "Bad Dog." The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law. 

 

HISTORY: s. 1, ch. 25109, 1949; s. 1, ch. 93-13; s. 1155, ch. 97-102. 

 

LexisNexis (TM) Notes: CASE NOTES TREATISES AND ANALYTICAL MATERIALS

 

 

CASE NOTES

Contracts Law : Contract Conditions & Provisions : Equitable Estoppel

 

Torts : Negligence : Defenses : Assumption of Risk

 

Torts : Negligence : Duty : Duty Generally

 

Torts : Negligence : Duty : Animal Owners

 

Torts : Real Property Torts : General Premises Liability

 

Torts : Strict Liability : Injuries Caused by Animals

 

 

 

Contracts Law : Contract Conditions & Provisions : Equitable Estoppel

 

1. Defendants were estopped from raising the defense that plaintiffs' had ignored a "Bad Dog" sign in an action for strict liability for dog bites under Fla. Stat. ch. 767.04 by the doctrine of equitable estoppel; defendants had assured plaintiffs, invited business guests, that the "bad dog" on their property would be secured. Yorke v. Noble, 466 So. 2d 349, 1985 Fla. App. LEXIS 12776, 10 Fla. L. Weekly 613 (Fla. Dist. Ct. App. 4th Dist. 1985).

 

Torts : Negligence : Defenses : Assumption of Risk

 

2. In a negligence action involving an injury caused by a dog, a grant of summary judgment in favor of the dog owners was reversed because the statutory defense in Fla. Stat. ch. 767.04 that a plaintiff mischievously or carelessly provoked or aggravated a dog was a question of fact for the jury. Staniszeski v. Walker, 550 So. 2d 19, 1989 Fla. App. LEXIS 4093, 14 Fla. L. Weekly 1742 (Fla. Dist. Ct. App. 2d Dist. 1989).

 

3. Assumption of risk jury instruction was improperly allowed in dog bite victim's negligence action against dog owner and insurer because Fla. Stat. ch. 767.04 modified the common law action and superseded common law defenses. Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21, 1978 Fla. LEXIS 4771 (Fla. 1978).

 

Torts : Negligence : Duty : Duty Generally

 

4. Because the legislature in enacting Fla. Stat. ch. 767.04, imposing a requirement for a sign "easily readable," was clearly intending a sign that was "legible" and "capable of being read," and the requirement was for a sign that was capable of being read and was not a requirement that any possible victim of a dog-bite be "capable of reading" the sign, a sign was effective to protect property owner from liability regardless of injured victim's failure to understand the warning solely because of an inability to read or write english. Registe v. Porter, 557 So. 2d 214, 1990 Fla. App. LEXIS 1104, 15 Fla. L. Weekly D 522 (Fla. Dist. Ct. App. 2d Dist. 1990).

 

Torts : Negligence : Duty : Animal Owners

 

5. Dog owner was liable under Fla. Stat. ch. 767.04 for plaintiff's injury suffered when she fell while running from owner's dog, which had been ordered to attack by owner. Thomas v. Wyatt, 405 So. 2d 1369, 1981 Fla. App. LEXIS 21689 (Fla. Dist. Ct. App. 4th Dist. 1981).

 

6. Trial judge erred in granting a new trial following a jury verdict finding no liability on plaintiff's claim of injury by a dog pursuant to Fla. Stat. ch. 767.01, where the jury could have properly concluded that the defense of careless provocation under Fla. Stat. ch. 767.04 had been met due to plaintiff's behavior directed at the dog's owner, and where because the verdict was a general verdict, it could not be determined that the jury based its decision on the careless provocation defense. Rosenfelt v. Hall, 387 So. 2d 544, 1980 Fla. App. LEXIS 17138 (Fla. Dist. Ct. App. 5th Dist. 1980).

 

7. Liability and exemption created by Fla. Stat. ch. 767.04 pertained only to dog owners, and where property owner was not also dog owner, she was neither liable under nor exonerated by the statute such that common law made homeowner liable for child's dog bite even though warning signs were posted. Flick v. Malino, 356 So. 2d 904, 1978 Fla. App. LEXIS 15559 (Fla. Dist. Ct. App. 1st Dist. 1978).

 

8. An appellate court determined that the taking of a milk bone out of a dog's dish by a minor who wished to feed the dog did not constitute a provocation to except dog owners' liability under Fla. Stat. ch. 767.04, which provided that no owner of any dog was to be liable for any damages to any person or his property when the person mischievously or carelessly provoked or aggravated the dog inflicting the damage. Sand v. Gold, 301 So. 2d 828, 1974 Fla. App. LEXIS 8632 (Fla. Dist. Ct. App. 3d Dist. 1974), cert. denied, 312 So. 2d 752 (Fla. 1975).

 

9. Where the defendant failed to present any evidence to support his affirmative defense that the plaintiff was bitten and injured by the defendant's dog as a result of the plaintiff's provocation of the dog, the defendant's liability was governed by Fla. Stat. ch. 767.04 and the plaintiff was entitled to a directed verdict. Minisall v. Krysiak, 242 So. 2d 756, 1970 Fla. App. LEXIS 5386 (Fla. Dist. Ct. App. 4th Dist. 1970).

 

10. Dog owner was not liable for dog bite injuries inflicted on a person who was lawfully on the owner's premises although the owner did not display a sign containing the words "bad dog" as required by Fla. Stat. ch. 767.04, where the owner displayed in a prominent place on the premises an easily readable sign bearing the words "beware of dogs." Romfh v. Berman, 56 So. 2d 127, 1951 Fla. LEXIS 1008 (Fla. 1951), overruled, Sweet v. Josephson, 173 So. 2d 444 (Fla. 1965).

 

Torts : Real Property Torts : General Premises Liability

 

11. Economic invitee who was bitten by a dog while on the business premises had a common law cause of action against the business establishment which owned the dog. Stickney v. Belcher Yacht, Inc., 424 So. 2d 962, 1983 Fla. App. LEXIS 18456 (Fla. Dist. Ct. App. 3d Dist. 1983), approved, in part, quashed, in part, 450 So. 2d 1111 (Fla. 1984).

 

Torts : Strict Liability : Injuries Caused by Animals

 

12. In plaintiff kennel worker's suit against defendant dog owner for damages for dog's bites under Fla. Stat. ch. 767.04, the independent contractor exception to the dangerous instrumentality doctrine was not available to dog owner as a defense. Wipperfurth v. Huie, 654 So. 2d 116, 1995 Fla. LEXIS 374, 20 Fla. L. Weekly S 109 (Fla. 1995).

 

13. The term "owner", as used in Fla. Stat. ch. 767.04, does not include a kennel owner or veterinarian who undertakes the care, custody, and control of a dog pursuant to an agreement with the dog's actual owner. Wipperfurth v. Huie, 654 So. 2d 116, 1995 Fla. LEXIS 374, 20 Fla. L. Weekly S 109 (Fla. 1995).

 

14. Absent some special or relationship between the landlord and a dog kept on the premises by an occupant, the landowner was not liable for injuries that the dog caused away from the property under Fla. Stat. ch. 767.04. Ny Tran v. Bancroft, 648 So. 2d 314, 1995 Fla. App. LEXIS 91, 20 Fla. L. Weekly D 191 (Fla. Dist. Ct. App. 4th Dist. 1995).

 

15. Independent contractor defense was no longer viable in an action brought against a dog owner under Fla. Stat. ch. 767.04 and did not bar recovery by an employee of a dog kennel. Huie v. Wipperfurth, 632 So. 2d 1109, 1994 Fla. App. LEXIS 1682, 19 Fla. L. Weekly D 484 (Fla. Dist. Ct. App. 5th Dist. 1994).

 

16. Florida's dog-bite statute, Fla. Stat. ch. 767.04 recognizes only two statutory defenses, which are that the owner is not liable when the person bitten has mischievously or carelessly provoked or aggravated the dog, or where the owner prominently displays a "Bad Dog" sign; provocation is an affirmative defense that must be proved by the defendant, so where the only defense against a dog-bite claim is that the dog was aggravated by a bitten minor, but none of the evidence supports the provocation defense, the minor plaintiff is entitled to a directed verdict on the issue. Freire v. Leon, 584 So. 2d 98, 1991 Fla. App. LEXIS 7350, 16 Fla. L. Weekly D 1982 (Fla. Dist. Ct. App. 3d Dist. 1991).

 

17. The Fireman's Rule, as a common law defense, did not apply to claims under Fla. Stat. ch. 767.01 and Fla. Stat. ch. 767.04, nor did any common law defenses apply to the statutory cause of action based on Fla. Stat. ch. 767.01 and Fla. Stat. ch. 767.04, and the only defenses available were those provided under Fla. Stat. ch. 767.04, which defenses also applied to a claim under Fla. Stat. ch. 767.01. Kilpatrick v. Sklar, 548 So. 2d 215, 1989 Fla. LEXIS 735, 14 Fla. L. Weekly 390, 74 A.L.R.4th 1111 (Fla. 1989).

 

18. In a negligence action involving an injury caused by a dog, a grant of summary judgment in favor of the dog owners was reversed because the statutory defense in Fla. Stat. ch. 767.04 that a plaintiff mischievously or carelessly provoked or aggravated a dog was a question of fact for the jury. Staniszeski v. Walker, 550 So. 2d 19, 1989 Fla. App. LEXIS 4093, 14 Fla. L. Weekly 1742 (Fla. Dist. Ct. App. 2d Dist. 1989).

 

19. Victim of a dog bite could pursue the non-owner of the dog upon a common law liability claim because the insulation from dog bite liability provided a dog owner through compliance with Fla. Stat. ch. 767.04 did not extinguish the possibility of pursuing the non-owner who could be linked to the dog. Ward v. Young, 504 So. 2d 528, 1987 Fla. App. LEXIS 7398, 12 Fla. L. Weekly 882 (Fla. Dist. Ct. App. 2d Dist. 1987).

 

20. Under the dog bite statute, Fla. Stat. ch. 767.04, a child of tender years could mischievously provoke a dog; thus, a dog owner's liability was precluded under the statute where the jury determined that a child mischievously provoked the dog prior to being bitten. Porter v. Allstate Ins. Co., 497 So. 2d 927, 1986 Fla. App. LEXIS 10529, 11 Fla. L. Weekly 2366 (Fla. Dist. Ct. App. 5th Dist. 1986).

 

21. Where police officer was injured while being chased by husband's dogs after entering onto husband and wife's property to investigate why a burglar alarm was sounding, trial court properly dismissed claim against wife because wife did not own dogs and was not subject to liability pursuant to Fla. Stat. chs. 767.01 or 767.04; additionally, with no statute superseding it, the common law defense of the fireman's rule was not abrogated and could be asserted by wife. Kilpatrick v. Sklar, 497 So. 2d 1289, 1986 Fla. App. LEXIS 10530, 11 Fla. L. Weekly 2352 (Fla. Dist. Ct. App. 3d Dist. 1986).

 

22. In a dog attack case, the trial court correctly instructed the jury that they could consider all the circumstances surrounding the incident, including the age and maturity of the child, in deciding whether the child mischievously or carelessly provoked or aggravated the dog as contemplated by Fla. Stat. ch. 767.04. Reed v. Bowen, 503 So. 2d 1265, 1986 Fla. App. LEXIS 11535, 11 Fla. L. Weekly 2254 (Fla. Dist. Ct. App. 2d Dist. 1986).

 

23. Dog owner was liable for damages to one bitten by his dog despite his posting a "beware of dog" sign; the protection afforded dog owners by Fla. Stat. ch. 767.04 did not preclude the application of equitable estoppel, and the owner's statements to the victim that the dog was old and arthritic and that the sign was posted merely to prevent intruders estopped him from claiming the protection of Fla. Stat. ch. 767.04. Godbey v. Dresner, 492 So. 2d 800, 1986 Fla. App. LEXIS 9227, 11 Fla. L. Weekly 1742 (Fla. Dist. Ct. App. 2d Dist. 1986).

 

24. The tort immunity of Fla. Stat. ch. 767.04 does not extend to a dog owner who affirmatively directs a business invitee to ignore a "Bad Dog" sign displayed on the premises; as a matter of law, a dog owner who tells a victim to ignore the "Bad Dog" sign and pretend it does not exist has not provided the genuine, effective and bona fide notice required by the dog bite statute, and the Florida Supreme Court will not allow a party who disavows the tenor of the "Bad Dog" sign to take advantage of its wording. Noble v. Yorke, 490 So. 2d 29, 1986 Fla. LEXIS 2014, 11 Fla. L. Weekly 196 (Fla. 1986).

 

25. In an action by a mailman to recover for injuries incurred when he was bitten by a dog that jumped over a four-foot fence, which fence had a bad dog warning sign affixed in accordance with Fla. Stat. ch. 767.04, the verdict form was improper in that it preempted the jury from deciding whether the sign sufficiently warned of the actual danger. Kaiser v. Baley, 474 So. 2d 906, 1985 Fla. App. LEXIS 15644, 10 Fla. L. Weekly 2050 (Fla. Dist. Ct. App. 5th Dist. 1985).

 

26. Business owner was liable to economic invitee bitten by dog at the store under Fla. Stat. ch. 767.04; security guard who managed the dog was not strictly liable under the statute, but could be found negligent. Belcher Yacht, Inc. v. Stickney, 450 So. 2d 1111, 1984 Fla. LEXIS 2906 (Fla. 1984).

 

27. Economic invitee who was bitten by a dog while on the business premises had a common law cause of action against the business establishment which owned the dog. Stickney v. Belcher Yacht, Inc., 424 So. 2d 962, 1983 Fla. App. LEXIS 18456 (Fla. Dist. Ct. App. 3d Dist. 1983), approved, in part, quashed, in part, 450 So. 2d 1111 (Fla. 1984).

 

28. Dog owner was liable under Fla. Stat. ch. 767.04 for plaintiff's injury suffered when she fell while running from owner's dog, which had been ordered to attack by owner. Thomas v. Wyatt, 405 So. 2d 1369, 1981 Fla. App. LEXIS 21689 (Fla. Dist. Ct. App. 4th Dist. 1981).

 

29. Trial judge erred in granting a new trial following a jury verdict finding no liability on plaintiff's claim of injury by a dog pursuant to Fla. Stat. ch. 767.01, where the jury could have properly concluded that the defense of careless provocation under Fla. Stat. ch. 767.04 had been met due to plaintiff's behavior directed at the dog's owner, and where because the verdict was a general verdict, it could not be determined that the jury based its decision on the careless provocation defense. Rosenfelt v. Hall, 387 So. 2d 544, 1980 Fla. App. LEXIS 17138 (Fla. Dist. Ct. App. 5th Dist. 1980).

 

30. Defendant's decedent was not immune from liability by virtue of Fla. Stat. ch. 767.04 because it could not be said as a matter of law that a sign, even though posted in a prominent place, was easily readable to plaintiff, a three-year-old child. Flick v. Malino, 374 So. 2d 89, 1979 Fla. App. LEXIS 15446 (Fla. Dist. Ct. App. 5th Dist. 1979).

 

31. Defenses under Fla. Stat. ch. 767.04 were available to dog owner sued pursuant to Fla. Stat. ch. 767.01 by bite victim to recover damages for injuries incurred when victim fled from owner's guard dogs. Rattet v. Dual SEC. Sys., 373 So. 2d 948, 1979 Fla. App. LEXIS 15544 (Fla. Dist. Ct. App. 3d Dist. 1979).

 

32. Nothing in Fla. Stat. ch. 767.04 holds a dog owner strictly liable in a dog bite case where the proximate cause of the injury is the intervening negligence of another person. Wendland v. Akers, 356 So. 2d 368, 1978 Fla. App. LEXIS 15129, 4 A.L.R.4th 343 (Fla. Dist. Ct. App. 4th Dist. 1978), cert. denied, 378 So. 2d 342 (Fla. 1979).

 

33. Dog was carelessly aggravated and provoked within the meaning of Fla. Stat. ch. 767.04 where two strangers in strange surroundings held a large German Shepherd dog's neck to immobilize a front leg for insertion of a needle and pressed his head down; such intervening efficient independent fault solely caused or resulted in injury to the veterinarian's employee and relieved the owner of the dog from liability. Wendland v. Akers, 356 So. 2d 368, 1978 Fla. App. LEXIS 15129, 4 A.L.R.4th 343 (Fla. Dist. Ct. App. 4th Dist. 1978), cert. denied, 378 So. 2d 342 (Fla. 1979).

 

34. Owner of a dog is not liable to a third party under Fla. Stat. ch. 767.04 for damages from being injured by the dog subsequent to the delivery of possession and control of the dog to a qualified veterinarian for care or treatment and the acceptance of employment and possession by the veterinarian, in the absence of a showing of active negligence by the owner which contributes directly to and becomes the proximate cause of the injury. Wendland v. Akers, 356 So. 2d 368, 1978 Fla. App. LEXIS 15129, 4 A.L.R.4th 343 (Fla. Dist. Ct. App. 4th Dist. 1978), cert. denied, 378 So. 2d 342 (Fla. 1979).

 

35. Fla. Stat. ch. 767.04, under which defendant mother was sued by plaintiff daughter after daughter was bitten by mother's dog, did not violate Fla. Const. art. I, §  21, as the statute did not take away a right of redress for injury; rather, it provided that a dog owner should be liable even without the common law requirement of scienter for injuries caused by his dog, and that under certain circumstances, including injury which resulted after notice was given by a posted "bad dog" sign, no liability would lie. Carroll v. Moxley, 241 So. 2d 681, 1970 Fla. LEXIS 2310 (Fla. 1970).

 

36. Petitioner dog owner could be liable under Fla. Stat. ch. 767.01 to respondent individual who was injured by petitioner's dog even though those injuries were not the result of a bite, as there were no features contained in Fla. Stat. ch. 767.04 which would justify a finding that Fla. Stat. ch. 767.01 had been repealed. Sweet v. Josephson, 173 So. 2d 444, 1965 Fla. LEXIS 3388 (Fla. 1965).

 

 

TREATISES AND ANALYTICAL MATERIALS

 

1. Florida Civil Procedure 3d §  7-13c, FLORIDA CIVIL PROCEDURE 3d, Chapter 7. Pleadings and Motions, §  7-13c Affirmative Defenses, Copyright 2002 LEXIS Law Publishing, a div of Reed Elsevier, Inc.

 

2. 1-14 Florida Forms of Jury Instruction §  14.01, Florida Forms of Jury Instruction, Division I INSTRUCTIONS USED IN ALL CIVIL ACTIONS, §  14.01 Negligence of Child (Fla. Std. Jury Instr. [Civ.] 3.5, 3.5a, 3.6c, 4.1), Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

3. 3-70 Florida Forms of Jury Instruction §  70.01, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.01 Owner's or Keeper's Liability for Dog Bite, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

4. 3-70 Florida Forms of Jury Instruction §  70.02, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.02 Owner's or Keeper's General Liability for Injury Caused by Dog, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

5. 3-70 Florida Forms of Jury Instruction §  70.03, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.03 Owner or Keeper of Dog, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

6. 3-70 Florida Forms of Jury Instruction §  70.04, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.04 Plaintiff's Lawful Entry on Private Property, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

7. 3-70 Florida Forms of Jury Instruction §  70.07, Florida Forms of Jury Instruction, Division III TORT ACTIONS, §  70.07 Defendant: Posting of Warning Sign, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

8. Florida Residential Landlord Tenant Manual §  10.03, FLORIDA RESIDENTIAL LANDLORD TENANT MANUAL, VOLUME 1A, §  10.03. Landlordenant Negligence in Florida, Copyright §  2001 LEXIS Law Publishing, a Division of Reed Elsevier, Inc.

 

9. 2-40 Florida Torts §  40.03, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.03 Statutory Strict Liability for Injuries Caused by Dogs, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

 

10. 2-40 Florida Torts §  40.04, Florida Torts, DIVISION III ACTIONS BASED ON STRICT LIABILITY, §  40.04 Defenses to Strict Liability, Copyright 2002, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 

TITLE 45.  TORTS

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CHAPTER 767.  DAMAGE BY DOGS

 

Fla. Stat. §  767.11  (2002)

 

§  767.11.  Definitions

 

   As used in this act, unless the context clearly requires otherwise:

(1) "Dangerous dog" means any dog that according to the records of the appropriate authority:

   (a) Has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property;

   (b) Has more than once severely injured or killed a domestic animal while off the owner's property;

   (c) Has been used primarily or in part for the purpose of dog fighting or is a dog trained for dog fighting; or

   (d) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.

(2) "Unprovoked" means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog.

(3) "Severe injury" means any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery.

(4) "Proper enclosure of a dangerous dog" means, while on the owner's property, a dangerous dog is securely confined indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the animal from escaping. Such pen or structure shall have secure sides and a secure top to prevent the dog from escaping over, under, or through the structure and shall also provide protection from the elements.

(5) "Animal control authority" means an entity acting alone or in concert with other local governmental units and authorized by them to enforce the animal control laws of the city, county, or state. In those areas not served by an animal control authority, the sheriff shall carry out the duties of the animal control authority under this act.

(6) "Animal control officer" means any individual employed, contracted with, or appointed by the animal control authority for the purpose of aiding in the enforcement of this act or any other law or ordinance relating to the licensure of animals, control of animals, or seizure and impoundment of animals and includes any state or local law enforcement officer or other employee whose duties in whole or in part include assignments that involve the seizure and impoundment of any animal.