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By: William G. Morris, Esq.

Most animal owners are responsible for actions of their animals but can avail themselves of common law defenses that have been established by court cases over time. Animal owners face liability for action of their animal under the usual rules related to negligence or intentional acts. Unless the owner knows a domesticated animal is vicious (i.e. has bitten before), the owner can raise as a defense that the injured person assumed risk of injury, or contributed to the cause of his or her injuries, thereby reducing liability. They can even use the fireman's rule defense, under which a firefighter or police officer entering property is considered a licensee and the property owner's only duty is to refrain from wanton negligence or wrongful conduct and to warn the firefighter or police officer of any known dangerous condition if that condition is not open and obvious.

Perhaps because dogs are so common, the legislature has given special attention to dogs and their owners. As far back as 1892, Florida's legislature passed a law confirming that owners of dogs are liable for damage done by their dogs to persons, "domestic animals" or "livestock." That law is now Section 767.01 Florida Statutes. In 1949, the legislature felt the need to adopt additional law to specifically address dog bites. That was likely because the common law required a dog owner know of a previous bite by the dog to have liability for a dog bite.

In 1949, the legislature adopted the predecessor to what is now Section 767.04 Florida Statutes, "Dog owner's liability for damages to persons bitten." Under the newer statute, dog owners no longer get "one free bite." The statute makes a dog owner liable for any damages caused by their dog's bite, without regard to knowledge of viciousness. The statute piles on to the liability under Section 767.01, which remains to hold owners of dogs liable for damage done by their dogs to persons, domestic animals and livestock.

The newer statute has a lot of qualifications. First, it makes an owner liable for a dog biting someone who is on or in a public place or lawfully on or in a private place, including the dog owner's property. That excludes trespassers. It offers additional assistance to dog owners by providing if the bitten person's negligence is a proximate cause of the biting incident, liability of the owner is reduced. Negligence of the bitten person can include a wide variety of actions such as approaching a growling dog, teasing a dog, or even throwing a frisbee.

The newer statute provides even more owner protection for dog bites on an owner's premises. If the owner posts a prominently displayed and easily readable sign including the words "Bad Dog" on the owner's premises, the owner is not liable for dog bites except to a child under 6 years old or if the owner's negligence or action proximately causes the damages. That means, every dog owner should post a "Bad Dog" sign, even if their dog is really "good."

The defenses in 767.04 are not listed in 767.01. It would therefore seem those defenses are only applicable in dog bite cases, and not claims for other dog liability. Florida courts disagree and have consistently allowed the defenses under 767.04 to be used under 767.01.

Florida courts have also been owner friendly with respect to the Bad Dog sign. In one case, the owner posted an easily readable sign including the words "Bad Dog," but the victim could not read English. The court ruled the sign was sufficient. And, even though the statute requires the words "Bad Dog," some courts have allowed something less that warns a dog is on site and that visitors should be cautious.

The statute makes it clear that merely posting a sign is not a complete defense. If the owner does something to contribute to the injuries, the sign will not insulate the owner. At least one case has held when the owner tells a visitor to ignore the "Beware of the Dog" sign because the dog was put away, when the visitor followed the instruction and was confronted by and bitten by the dog, the owner was not allowed to use the posted sign as a defense.

The two statutes make dog owners strictly liable for any injuries caused by their dog. Any affirmative action by the dog is sufficient; a bite is not required. In one case, a Great Dane got out of the yard, ran into the street and a car driver, swerving out of the way, lost control of his vehicle and struck a power pole. The dog owner was liable for the driver's injuries.

In another case, a dog owner was liable for a boy's injuries when one boy tied his wagon to the dog's tail and the dog took off chasing another dog and the wagon hit another boy. In one particularly unique case, a woman took her small dog with her, placing the dog in the back seat of the car. The dog got tangled up with a loaded shotgun in the back seat, causing the shotgun to fire into a person standing near the car. The dog owner was liable for the injuries.

There is yet to be a case where the dog owner has been liable where the dog did nothing but sit or sleep.

When someone else is involved in the incident, dog owners have tried to shift blame and liability to the third party. The courts have rejected those efforts, explaining that the statutes make dog owners strictly liable. But, if someone else caused the dog's action, the owner can seek contribution from the third party for any damages due to the injury. Contribution means that when more than one person is liable for injury, if one of them pays more than his or her pro rata share of the total liability, that person may recover the overage from the other person or persons.

An example of contribution is a case where a bicyclist sued a dog owner when the dog, chasing a Frisbee, ran into his bicycle and knocked him down. The bicycle rider did not sue the Frisbee thrower, relying instead on strict liability of the dog owner. The dog owner was allowed to sue the Frisbee thrower in the same case for contribution, even though the bicyclist did not seek a judgment against the Frisbee thrower.

With exception of special statutory treatment of dogs, domestic animals are presumed not to be vicious or dangerous and liability does not arise solely due to ownership. The owner or keeper of the domestic animal is required to be aware of the general propensities of the class to which it belongs and also of the particular propensities of an animal itself which places others in danger is usually required for the owner of a domestic animal to face liability. That is not the case for dog owners. When it comes to dogs, "man's best friend" may turn out to only be the "plaintiff's best friend."

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.