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December 2, 2016 by admin

Torts — Dog bite — Strict liability — Where plaintiff asserted statutory damages claim for strict liability against owner of guard dogs which had escaped from client’s premises, trial court erred in entering final summary judgment for owner after finding as matter of law that plaintiff’s actions in feeding and sheltering dogs while she attempted to identify their owners constituted an intervening, superseding proximate cause of plaintiff’s injuries

41
Fla. L. Weekly D2659a
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Torts
— Dog bite — Strict liability — Where plaintiff asserted statutory damages
claim for strict liability against owner of guard dogs which had escaped from
client’s premises, trial court erred in entering final summary judgment for
owner after finding as matter of law that plaintiff’s actions in feeding and
sheltering dogs while she attempted to identify their owners constituted an
intervening, superseding proximate cause of plaintiff’s injuries — Under
statute, dog owner is strictly liable for injuries caused by dog bite, and
owner’s liability is reduced only by percentage of injured party’s comparative negligence
— Whether and to what extent plaintiff is comparatively negligent for her own
injuries generally is question of fact for jury — Remand for further
proceedings

LISA
ARELLANO, Appellant, vs. BROWARD K-9/MIAMI K-9 SERVICES, INC., etc., Appellee. 3rd
District. Case Nos. 3D16-314 & 3D15-2609. L.T. Case No. 13-18732. Opinion
filed November 30, 2016. Appeals from the Circuit Court for Miami-Dade County,
John Schlesinger, Judge. Counsel: Colson Hicks Eidson, and Deborah J. Gander,
Maureen E. Lefebvre, W. Allen Bonner and Barbara A. Silverman, for appellant.
Banker Lopez Gassler, P.A., and Sarah Lahlou-Amine and Mark D. Tinker (Tampa),
for appellee.

(Before
EMAS, FERNANDEZ and SCALES, JJ.)

(SCALES,
J.) Appellant, plaintiff below, Lisa Arellano appeals the trial court’s final
summary judgment determining, as a matter of law, that Arellano’s actions
constituted a superseding, intervening cause, thereby precluding her statutory
dog bite claim against appellee, defendant below, Broward K-9/Miami K-9 Services,
Inc. (“K-9”). Arellano also appeals the trial court’s cost judgment entered
against her in favor of K-9. We reverse because Florida’s dog bite statute
imposes strict liability on dog owners, subject only to a plaintiff’s
comparative negligence, which in this case must be determined by the
trier-of-fact.

I.
Facts1

K-9
supplied two guard dogs to a commercial business located in Miami, Florida. On
a Monday morning, a K-9 employee came to the business to feed and tend to the
dogs, and discovered that the dogs had escaped their fenced yard. Apparently,
the business had been burglarized the night before and the chain-link fence cut,
allowing the dogs to escape into Arellano’s neighborhood.

Believing
that the dogs belonged to one of Arellano’s neighbors, Arellano fed and
sheltered the dogs for about five days, taking steps to find the dogs’ owner.
Specifically, Arellano sent an e-mail to the neighborhood watch group, and
contacted County Animal Services to inquire about reports of missing dogs.

Arellano
had two pet dogs of her own. When Arellano allowed the guard dogs into her
fenced yard, she made sure her own dogs remained inside her home. When Arellano
arrived home from work each evening, she let her dogs out into her yard and
secured the guard dogs in her laundry room. On October 21, 2011, the Friday
following the guard dogs’ escape, Arellano arrived home from work to find the guard
dogs missing. She let her two dogs into her yard. The guard dogs soon returned
to Arellano’s home, one of them jumping the fence. Arellano managed to stow the
two guard dogs in her laundry room, but they broke free and one of the guard
dogs attacked one of Arellano’s dogs in the yard. When Arellano went to
intervene, the attacking guard dog bit Arellano and injured her big toe. An
ambulance took Arellano to the hospital, while Animal Control took custody of
the guard dogs. Eventually, Animal Control determined that K-9 owned the dogs.

Arellano
brought this action, asserting a statutory damages claim for strict liability
against K-9. Arellano’s complaint requested a jury trial. The trial court
entered summary judgment for K-9, determining, as a matter of law, that
Arellano’s actions, albeit well intentioned, constituted an “intervening,
superseding proximate cause,” thereby relieving K-9 from any liability to
Arellano. The trial court also entered a $7,615.36 judgment taxing costs
against Arellano. Arellano timely appealed both the summary judgment (case
number 3D15-2609) and the cost judgment (case number 3D16-314); we consolidated
the appeals. We reverse both judgments.

II.
Analysis2

Arellano’s
claim against K-9 is founded upon Florida’s dog bite statute that reads, in
relevant part, as follows:

The owner of any dog that
bites any person . . . 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.

§
767.04, Fla. Stat. (2011).

As
is clear from the statute, a dog owner is strictly liable for the injuries
caused by the dog’s biting of someone; and that owner’s liability is reduced
only by the percentage of the injured party’s comparative negligence that
contributed to the incident.

In
this case, the trial court essentially determined that Arellano’s actions
effectively dispossessed K-9 of ownership of the dogs, and broke the chain of
proximate causation so as to relieve K-9 from the strict liability imposed by
section 767.04. Put another way, the trial court concluded that K-9 established
the common law defense that Arellano’s damages were caused by an intervening,
superseding cause, rather than by any act or omission of K-9. Thus, the trial
court determined, as a matter of law, that Arellano’s actions as they related
to the dogs reduced K-9’s liability to zero.

The
trial court, however, reversibly erred by removing this issue from the jury and
determining it as a matter of law. German-American Lumber Co. v. Brock,
46 So. 740, 744 (Fla. 1908) (“If the evidence is conflicting, or will admit of
different reasonable inferences, or if there is evidence tending to prove the
issue, it should be submitted to the jury as a question of fact, and not taken
from them and passed upon by the judge as a question of law.”); Plant v.
Podesta
, 579 So. 2d 285 (Fla. 3d DCA 1991). A jury might very well decide
that Arellano’s actions, in whole or in part, were a proximate cause of the
incident, thereby reducing or even eliminating K-9’s liability. In our view,
the statute plainly contemplates the role of the jury in making this call based
on the facts and circumstances of the case.

We
are mindful that, in a common law negligence action, summary judgment is
appropriate when the undisputed facts conclusively establish that an
intervening, superseding event — rather than a tortfeasor’s negligence —
caused the plaintiff’s damages. See, e.g., Valdes v. Miami Herald
Publ’g Co.
, 782 So. 2d 470, 471 (Fla. 3d DCA 2001). Arellano’s claim,
however, is not one sounding in negligence; her claim is founded upon section
767.04, which effects the legislative purpose of imposing on a dog owner strict
liability for dog bite damages. The statute prescribes a limited exception to
such strict liability: the plaintiff’s comparative negligence.3 Whether and to what extent a
plaintiff is comparatively negligent for her own injuries generally is a fact
question for the jury. Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA
1975).

III.
Conclusion

Genuine
issues of material fact exist as to whether, and to what extent, K-9’s
liability for Arellano’s injuries should be reduced because of Arellano’s
actions. We reverse the trial court’s final summary judgment determining that,
as a matter of law, Arellano’s actions reduced to zero K-9’s liability.
Therefore, we also reverse the resulting cost judgment in K-9’s favor. We
remand the case to the trial court for proceedings consistent herewith.

Reversed
and remanded.

__________________

1When
reviewing a summary judgment, we view the facts in a light most favorable to
Arellano, the non-moving party. Markowitz v. Helen Homes of Kendall Corp.,
826 So. 2d 256, 259 (Fla. 2002).

2We
review a trial court’s summary judgment de novo. Sierra v. Shevin, 767
So. 2d 524, 525 (Fla. 3d DCA 2000).

3The
statute provides another limited exception when the dog bite occurs on the
owner’s private property and the owner has posted a “Bad Dog” sign. § 767.04,
Fla. Stat. (2011). We reject K-9’s suggestion that this exception is somehow
applicable to this case.

* *
*

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