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LIABILITY FOR ANIMALS CAN DEPEND ON THE ANIMAL

People in Florida have a wide variety of animals. Many are pets. Some are work animals. Some are wild animals and we even have emotional support animals. What kind of animal can be kept on one's property is often regulated by the government. Regulated or not regulated, animals have potential to cause harm if not kept under control. The standard for liability is not the same for every animal. Anyone with an animal is charged with at least a minimal duty of care.

Florida recognizes two primary categories of animals, domestic and wild. Section 768.139 Fla. Stat. defines a domestic animal as a dog, cat, or other animal that is domesticated and may be kept as a household pet. It specifically excludes livestock or other farm animals. The statutes do not clearly define what is a domestic animal and what is a wild animal, which can leave the issue open to debate. That debate has been carried out in court and the general concept is that a wild animal is one that is not usually kept for domestic or agricultural purposes. That does not mean any animal kept as a pet is a domestic animal, but it appears that keeping an animal as a pet goes a long way toward making it domestic. Horses, cattle, bees and even fighting cocks have been judicially determined to be domestic animals. Florida courts confirm snakes, sharks and chimpanzees are wild animals. The test at least partly relies on consideration of how commonplace keeping the animal as a pet might be.

Someone who owns or has possession of a wild animal faces strict liability for any harm caused by the animal. The injured person does not have to prove negligence. Public policy is to protect the public from the wild animals, which are presumed to be dangerous. Someone who owns or keeps a wild animal is charged with the responsibility of protecting the public from danger and that liability continues even after the animal escapes. Strict liability means the owner or possessor of a wild animal is liable for any damage caused by the animal without any proof of negligence or fault.

Florida recognizes some defenses to strict liability for harm caused by wild animals. One comforting exception (at least to the animal owner) is the owner is generally not liable for injuries incurred by a trespasser. That is consistent with Florida law that a property owner has virtually no duty to protect trespassers from danger. But, the owner may be charged with a duty to trespassers when the owner knows they frequent the owner's property. That is the generalized duty of a property owner to known trespassers, which is to not to expose the trespasser to an unexpected dangerous condition.

Florida courts have also considered if the injured person contributed in some fashion to the person's own injuries. If somebody intentionally exposes himself to harm, that person will be charged with responsibility for at least part of his or her own damages.

Owners or those in possession of domestic animals are held to lesser, traditional liability standards. A person injured by a domestic animal must prove the owner or possessor of the animal was negligent by not providing warning or control. Knowledge of the animal's propensity to cause harm becomes relevant. In these cases, Florida courts have confirmed 3 basic questions are decided to determine liability: (1) did the defendant keep the animal on the defendant's property; (2) was the defendant aware of the domestic animal's dangerous propensity; and (3) did the defendant take reasonable care to guard against the harm caused by the animal. There must be a breach of duty to the injured person for the defendant to be liable in a domestic animal case.

Livestock get special treatment by Florida Statutes. Landowners with livestock are required to fence the land in accordance with statutory requirements and keep the fence in good condition because the biggest danger from livestock is when they escape. Many of you may have come across cattle crossing a road after walking through a broken fence. If the livestock owner intentionally or negligently allowed the livestock to run at large, the owner is liable for all injury and property damage caused by the livestock. Otherwise, the owner is protected.

The statute is different from the rule in most other states. In other states, livestock owners are liable for any damage caused by escaping livestock, even where the owner went above and beyond to prevent the livestock from escaping.

Florida dogs get special treatment, even though they are domestic animals. Dogs were treated pretty much like other domestic animals until 1881. Unless the owner knew the dog was vicious, an injured person would have to prove negligence or intentional act by the owner for liability to attach. Florida Statutes now impose strict liability on a dog owner.

Section 767.01 Fla. Stat. now makes dog owners liable for any damage done by their dogs to a person or to any animal included in the definition of domestic animal and livestock. Courts have read the statute quite broadly. In one case, a dog ran into a street and a driver trying to avoid the dog ran into a telephone pole. The dog owner was held liable for the damages. In another case, a dog in the back of a car stepped on a loaded shotgun. The owner was held liable by the court because the undisputed evidence showed damage was caused by the action of the dog even though the dog did not act aggressively.

Section 767.04 Fla. Stat. provides liability for the owner of any dog that bites someone in a public place or lawfully in a private place, including the property of the owner of the dog. Liability attaches even if the owner has no knowledge of viciousness of the dog. But the statute also states that any negligence on the part of the person bitten that contributes to the biting reduces liability of the dog owner by the percentage that the bitten person's negligence contributed to the incident.

The statute only protects those lawfully on property where they are bitten. It makes it clear that trespassers are not protected. That does not mean dog owners are immune from liability to trespassers, but only that trespassers must prove the owner was negligent in a manner similar to that required when other domestic animals are involved.

The dog bite statute provides additional protection for dog (and property) owners when the owner provides warning that a dog is present. If the owner prominently displays an easily readable side including the words "bad dog," the owner can be exempt from liability. The owner might also be exempt if the sign says beware of dogs or similar language that reasonably warns a visitor a dog is present and that the dog may bite. Use of language other than "bad dog" will require a fact determination that can be avoided by simply using the words "bad dog. The legislature apparently understands that young children cannot read as the statute does not provide a defense if the injured person is less than 6 years old. It also does not provide a defense if the owner's negligence caused the injury. The circumstances of each case will determine if the posted sign is sufficient.

When an animal causes damage, the facts of each case will determine liability. People injured by dogs have the clearest path to owner liability. But, everyone who owns or keeps an animal can be liable for injury caused by the animal in Florida. Since even posting a "bad dog" sign is not a ticket to exemption from liability, anyone who owns an animal should take steps to protect others from danger.

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.