Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 26, 2019 by Jennifer Kennedy

Torts — Automobile accident — Livestock straying onto public road — Evidence — Prior incidents — Trial court did not err in granting motion in limine barring introduction of evidence pertaining to prior instances where owner’s livestock had escaped from their enclosed pastures — Plaintiff waived ability to contest exclusion of any incident not specifically proffered in trial court, and the sole escape that was preserved by proffer occurred under circumstances that were not similar to those that led to cows straying onto roadway in instant case, which plaintiff specifically alleged was caused by defendant’s negligence in maintaining gate

44 Fla. L. Weekly D1058b

Torts — Automobile accident — Livestock straying onto public road — Evidence — Prior incidents — Trial court did not err in granting motion in limine barring introduction of evidence pertaining to prior instances where owner’s livestock had escaped from their enclosed pastures — Plaintiff waived ability to contest exclusion of any incident not specifically proffered in trial court, and the sole escape that was preserved by proffer occurred under circumstances that were not similar to those that led to cows straying onto roadway in instant case, which plaintiff specifically alleged was caused by defendant’s negligence in maintaining gate

ERNEST CARNAHAN, Appellant, v. ROBERT W. NORVELL, Appellee. 4th District. Case No. 4D17-3948. April 24, 2019. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Janet C. Croom, Judge; L.T. Case No. 56 2013 CA 000979. Counsel: Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, P.A., Orlando, and Joseph H. Graves and Matthew M. Thomas of Graves Thomas Injury Law Group, Vero Beach, for appellant. Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for appellee.

(LEVINE, J.) Appellant was driving along an unlit road at 4:45 a.m. when he collided with cows that were on the roadway. The nearby gate that enclosed the cows’ pasture was found open. Appellant sued appellee, the cows’ owner, under the Warren Act, which establishes liability for owners of livestock. Under the Warren Act, an owner is liable for injuries due to livestock that come upon public roads due to the owner’s intentional, willful, careless, or negligent actions in permitting the livestock to “stray upon” public roads. See § 588.15, Fla. Stat. (2012). Appellant claimed that the pasture’s gate was left unlocked and unlatched, which allowed the livestock to escape and come upon the unlit road he was driving on. After a trial, the jury found that appellee was not liable under the Warren Act.

Appellant claims that the trial court erred in granting a motion in limine barring the introduction of evidence pertaining to prior instances where appellee’s livestock had escaped their confinement. We find that the trial court did not err in granting the motion in limine. We also find the other issues raised to be without merit and affirm without further discussion. Thus, we affirm the judgment below.

This court reviews a trial court’s decision to admit or exclude evidence for abuse of discretion. Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991). Relatedly, whether an incident is sufficiently similar to be admissible as prior incident evidence is within the trial court’s discretion. Stephenson v. Cobb, 763 So. 2d 1195, 1196 (Fla. 4th DCA 2000).

Pre-trial discovery mentioned multiple instances of appellee’s cows escaping their pastures. During his deposition, appellee recounted several such incidents in general that had occurred over his thirty years raising cows in the area. The reasons for the cows’ escapes were numerous, including hurricanes, hunters, felled trees, neighbors, and vandals, among other causes. Notably, none of the previous escapes were the result of appellee leaving a gate unlocked or unlatched.

Appellee subsequently moved to limit the introduction of any evidence pertaining to previous times his cows had escaped from their enclosed pastures. At the hearing on this motion, the parties discussed only one specific escape: an incident where appellee’s cows escaped from a different pasture onto Carlton Road. Based on appellee’s deposition testimony, the cows had left the pasture when dogs belonging to hunters on a neighbor’s property scared the cows, causing them to run through or over the fence encircling their pasture. Only then did those cows make their way onto a road and become involved in a car collision.

Appellant only brought to the trial court’s attention the facts and circumstances regarding the Carlton Road incident. Appellant did not proffer evidence of any other incidents. Further, neither party even argued any of the other prior incidents at the hearing, nor did appellant file any response to the motion challenging the exclusion of all those incidents from evidence. The trial court granted appellee’s motion in limine, preventing appellant from introducing evidence of any prior escapes at trial.

Appellant, by failing to proffer or argue as to any of the incidents aside from the one that occurred on Carlton Road, waived his ability to contest the exclusion of any incident not specifically proffered in the trial court. See Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla. 4th DCA 2000) (“When the trial court excludes evidence, an offer of proof is generally necessary if the claimed evidentiary error is to be preserved for appellate review. Alternatively, if an adequate record of excluded evidence has been made at the hearing on the motion in limine, it is not necessary to make an offer of proof at trial.”) (citation omitted). Appellant neither proffered evidence as to the other incidents, nor did he argue against their exclusion at the motion in limine hearing. As such, he failed to preserve and cannot challenge the exclusion of any incident except the Carlton Road incident. See id.

As to the evidence regarding the Carlton Road escape, appellant preserved his argument, as evidenced by the record of the motion in limine hearing. See id. However, because that escape was not similar to the circumstances that led to appellant’s crash and not relevant to the theory of negligence pursued at trial, the trial court properly excluded the evidence.

Another Warren Act case, Prevatt v. Carter, 315 So. 2d 503 (Fla. 2d DCA 1975), is instructive. In Prevatt, like in this case, the appellant was driving down a dark road and collided with a black cow. Id. at 504. Importantly, the Second District there noted — and we reiterate here — that the Warren Act is not a “strict liability” statute, but instead hinges upon a showing of negligence:

The mere fact that the defendant’s [livestock] were running at large upon the public highway does not justify an inference that the defendant intentionally, willfully, carelessly or negligently permitted them to so run at large on the highway in violation of [the Warren Act].

See id. (quoting Hughes v. Landers, 215 So. 2d 773, 775 (Fla. 2d DCA 1968)) (alterations added).

In Prevatt, the court determined that the appellant should have been permitted to introduce evidence that the appellee knew that his cows had gotten out of the same pasture before as evidence of appellee’s negligence. Id. at 505-506. However, the instant case differs from Prevatt in several ways. First, the Carlton Road incident simply did not tend to prove or disprove appellee’s negligence. Appellee had nothing to do with that escape; instead, it was dogs belonging to hunters who were on a neighboring property. As the Second District noted in Prevatt, the mere fact that livestock escaped does not establish negligence. See id. at 503. Rather, there must be a nexus to negligence. The Carlton Road escape, where third parties caused appellee’s cows to leave their pasture, did not demonstrate any negligence by appellee, even if those escaped cows ultimately were involved in a car accident.

Additionally, appellant pursued a specific theory of negligence below: that appellee was negligent in maintaining his gate, which allowed the cows to escape and collide with appellant’s car. In light of this theory, the only livestock escape evidence appellant identified and proffered to the trial court was not similar incident evidence that would be probative and consequently admissible. The Carlton Road incident involved a fence; the instant case involves a gate. The Carlton Road incident occurred on a different pasture and the cows escaped onto a different road. Finally, as discussed above, the Carlton Road breakout was precipitated by the acts of third parties, not appellee, so it did not tend to prove “careless or negligent” action. Due to these key differences, the trial court did not abuse its discretion in excluding the Carlton Road incident evidence. See Stephenson, 763 So. 2d at 1196 (observing that determinations of whether incidents are sufficiently similar should be left to the sound discretion of the trial court).

Finally, any error in excluding the prior incident evidence was harmless. As detailed above, none of the proffered evidence actually went to negligence; as such, its exclusion could not have reasonably contributed to the verdict. See Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). We therefore affirm.

Affirmed. (TAYLOR and CIKLIN, JJ., concur.)

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982