NELL LANE KNAPP, APPELLANT,
v.
LYGIA L. BALL, A WIDOW, APPELLEE
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A dog owner appeals a partial summary judgment on liability in a personal injury case involving a non-biting dog injury. The Florida District Court of Appeal affirmed, holding that under Florida's dog liability statute, owners are strictly liable for injuries caused by their dogs without requiring proof of scienter, and that contributory negligence is not a defense to statutory liability.
Under Florida Statute § 767.01, dog owners are strictly liable for injuries caused by their dogs regardless of scienter. Contributory negligence is not a defense to this statutory liability. Assumption of risk is also not available unless the injured party unnecessarily and voluntarily put themselves in harm's way knowing the probable consequences and did something to incite or encourage the dog's action.
“Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.”
The statutory basis for strict liability of dog owners, establishing that no scienter or negligence need be proven
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Join FLexlaw to unlock all legal intelligenceNell Lane Knapp sought damages from Lygia L. Ball for injuries caused by Ball's dog. Ball was the dog's owner and Knapp was Ball's sister, visiting as…
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Plaintiff sought damages from a dog owner for injury (other than by biting) occasioned to her by defendant’s dog. Liability in favor of the plaintiff was determined by a partial summary judgment. A jury awarded $10,500 damages to the plaintiff.
*809The defendant appealed and contends the court was in error in granting summary-judgment for the plaintiff on liability because of plaintiff’s failure to allege and prove scienter, and because there were triable issues of contributory negligence and assumption of risk. We hold those contentions to be without merit, and affirm.
The trial judge was eminently correct in ruling that the defendant was responsible for the injury which her dog inflicted on plaintiff, without the need to show scienter. Section 767.01, Fla.Stat., F.S.A. provides: “Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.” See Sweet v. Josephson, Fla.1965, 173 So.2d 444; Josephson v. Sweet, Fla.App.1964, 173 So.2d 463; Vandercar v. David, Fla.App.1957, 96 So.2d 227, 66 A.L.R.2d 912; Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196.
Liability of the owner of a dog for such injuries under § 767.01 is based on an obligation as an insurer rather than on negligence, and contributory negligence as such is not a defense. See Vandercar v. David, supra, wherein this court said:
“ * * * But-the fact that liability is imposed by statute [767.01], and not based on negligence, does not require rejection of an offered defense that the injured party incited and encouraged the dog’s action which caused injury.
“The rule established by the authorities is that while-liability of an owner of a dog is based on an obligation as insurer rather than on negligence, and contributory negligence as such is not a defense, nevertheless, if an injured party unnecessarily and voluntarily puts himself in the way to be hurt, knowing the probable consequences, he may be deemed to have assumed the risk and to have induced his injury.”
Appellant’s contention that there was a triable issue as to assumption of risk is without support in the record, and the trial judge was correct in concluding against the presence of such issue.
The appellant and the appellee are sisters. At the time of this incident the appellee was a social guest temporarily residing in her sister’s home. As pointed out in Van-dercar v. David, supra, the defense of contributory negligence was not available in this action on a liability imposed by statute and not based on negligence. And the facts of the case were insufficient upon which to invoke a defense of assumption of risk. 'It was not shown that appellee did anything to incite or encourage the dog’s actions which resulted in her injury. Her mere presence in the house as a guest did not amount to an assumption of risk of injury by the owner’s dog, and the dog’s prior actions were not shown to be such as to reasonably lead appellee to believe her continued presence would probably lead to her injury from that source.
Affirmed.
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Leora Carroll and Martin Carroll v. Moxley, 241 So. 2d 681 (Fla. 1970)…owner the insurer against damage by his dog with certain exceptions, departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So. 2d 127 (Fla.1951); Vandercar v. David, 96 So. 2d 227 (Fla.App.3rd, 1957); Knapp v. Ball, 175 So. 2d 808 (Fla.App.3rd, 1965). It is concluded that Fla.Stat. § 767.04, F. S.A., supersedes the common law, only in those situations covered by the statute. It is next contended that the statute is unconstitutional, as in violation of the Fla.Const. § 4, Dec…
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Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21 (Fla. 1978)…wner the insurer against damage by his dog with certain exceptions, departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So. 2d 127 (Fla.1951); Vandercar v. David, 96 So. 2d 227 (Fla.App. 3rd, 1957); Knapp v. Ball, 175 So. 2d 808 (Fla.App. 3rd, 1965). It is concluded that Fla.Stat. § 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute. 241 So. 2d at 682. The Court then reversed in part the summary judgment finding that there existed a…
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Sol Brandeis and Lona Brandeis v. Felcher, 211 So. 2d 606 (Fla. 3d DCA 1968)…v. Sweet, Fla.App.1964, 173 So. 2d 463. It has been said that liability imposed by this section is an absolute liability as an insurer and is not contingent upon a showing of the negligence of the owner, or scienter. See Knapp v. Ball, Fla.App.1965, 175 So. 2d 808; Vandercar v. David, Fla.App.1957, 96 So. 2d 227, 66 A.L.R.2d 912; Reid v. Nelson, 154 F. 2d 724 (5th Cir.1946). Liability, if any here, depends upon the question of whether the boy’s death is damage “done by” the appellees’ dogs, i. e. were the do…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ferguson v. Gangwer, 140 Fla. 704 (Fla. 1939)
- Al Goldstein v. Stone, 96 So. 2d 227 (Fla. 3d DCA 1957)
- Nelan Sweet v. Josephson, 173 So. 2d 444 (Fla. 1965)
- Safety Cabs, Inc. v. Bert W. Weiss et ux., 173 So. 2d 463 (Fla. 1st DCA 1965)