RENATE HALL ET AL., APPELLANTS,
v.
MARIA RICARDO, A MINOR, BY AND THROUGH HER FATHER AND NEXT FRIEND, JOSE RICARDO AND JOSE RICARDO, INDIVIDUALLY, APPELLEES
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A minor plaintiff sued for damages from a dog bite under Florida's strict liability statute. The trial court granted a directed verdict for the plaintiff against the dog owner before the defense presented evidence, which the appellate court reversed, holding that directed verdicts for plaintiffs in dog bite cases are improper until the defendant has presented testimony.
A directed verdict for the plaintiff in a dog bite case is improper until the defendant has presented his testimony and evidence. Although strict liability under § 767.04 may apply, defendants may raise affirmative defenses including assumption of risk, proximate causation, and mischievous or careless provocation by the injured party.
[1] A directed verdict for a plaintiff is not permissible until the defendant has presented their evidence.
[2] In Florida, dog bite cases are governed by statute, which imposes strict liability on owners.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“without allowing defendant to give evidence in support of his answer, the trial court is in error. For example, though contributory-negligence may not be raised as a defense under the statutes (§ 767.01 and § 767.04, the latter confined by its terms to dog "bites"), assumption of risk and proximate causation may be raised as defenses.”
Establishes that defendants in dog bite cases have the right to present evidence on available affirmative defenses before a directed verdict can be entered.
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Join FLexlaw to unlock all legal intelligenceMaria Ricardo, a minor, was bitten by a dog owned by Renate Hall and in the custody of Harry Haas. At the conclusion of plaintiff's case and before de…
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PEARSON, Judge.
The appellee, Maria Ricardo, sued the appellant Renate Hall, for damages for a bite by a dog owned by Renate Hall. A third person, Harry Haas, was named as a codefendant because he had custody of the dog at the time of the injury. At the conclusion of the plaintiff’s case and before any defendants’ evidence had been received, defendant Haas moved for a directed verdict upon the theory that a prima fa-cie case had not been made as to that defendant. The trial court heard argument on the motion and not only granted the motion of the defendant, Haas, but at the same time also asked for and received a motion for a directed verdict from the plaintiff. Thereupon, the trial court directed a verdict for the plaintiff against the appellant Hall, and proceeded to the question of damages.
Cases for damages for injuries by dogs are unique in the State of Florida in that they are governed by Fla.Stat. § 767, F.S. A., and specifically § 767.04 with regard to dog bites. In the instant case, the trial judge reached the decision that the liability being imposed by Fla.Stat. § 767.041 was such that no reasonable defense could be presented on behalf of the defendant Hall. He was led to this conclusion by the fact that the defendant Hall had been called to testify as an adverse witness by the plaintiff.
It is possible that the trial court’s conclusion is absolutely correct. Nevertheless, we think that without allowing defendant to give evidence in support of his answer, the trial court is in error. For example, though contributory-negligence may not be raised as a defense under the statutes (§ 767.01 and § 767.04, the latter confined by its terms to dog “bites”), assumption of risk and proximate causation may be raised as defenses. Vandercar v. David, Fla.App.1957, 96 So. 2d 227, 66 A.L.R.2d 912. Also mischievous or careless provocation may be asserted as an affirmative defense if there is sufficient proof to bring the defendant within the exculpatory provisions of the statute. Minisall v. Krysiak, Fla.App.1970, 242 So. 2d 756. As to directed verdicts for the plaintiff, it is our view that they are mot allowed until the case is complete, i.e., until the defendant has presented his testimony. See Ahearn v. Florida Power & Light Co., Fla.App.1959, 113 So. 2d 751, reversed at 118 So. 2d 21 upon other grounds.
Reversed and remanded for a new trial.
. “767.04 Liability of owners. — The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; Provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog.’ ” • .
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Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21 (Fla. 1978)…a number of opinions issued by the District Courts of Appeal of this State stating that the doctrine of assumed risk is a valid defense under the statute. See Allstate Insurance Co. v. Greenstein, 308 So. 2d 561 (Fla. 3d DCA 1975); Hall v. Ricardo, 297 So. 2d 849 (Fla. 3d DCA 1974); Issacs v. Powell, 267 So. 2d 864 (Fla. 2d DCA 1972); English v. Seachord, 243 So. 2d 193 (Fla. 4th DCA 1971); Vandercar v. David, supra. However, a careful reading of those cases will show that the defenses asserted, liberally la…
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Wendland v. Akers, 356 So. 2d 368 (Fla. 4th DCA 1978)…eterinarians who testified readily conceded that being bitten by a dog was a usual hazard of their business and that muzzling a dog before examination or treatment was the accepted measure for protection against such occurrences. . Hall v. Ricardo, 297 So. 2d 849 (Fla. 3d DCA 1974). . Isaacs v. Powell, 267 So. 2d 864 (Fla. 2d DCA 1972). . Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Also see U. of Miami Law Review, Vol. 22, pages 367, et seq. . Fla. Power & Light v. Price, 170 So.…
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Mariana Freire v. Horacio Leon and Olga Leon, 584 So. 2d 98 (Fla. 3d DCA 1991)…of witnesses’ undisputed testimony, we conclude that there is no evidence in the record from which a provocation by the child could be reasonably inferred. Provocation is an affirmative defense that must be proved by the defendant. Hall v. Ricardo, 297 So. 2d 849, 850 (Fla. 3d DCA 1974), overruled on other grounds, Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21 (Fla. 1978). Thus, where the only defense [*100] against a dog-bite claim is that the dog was aggravated by a bitten minor, but none o…
Authorities Cited
- Fla. Power & Light Co. v. Ahearn, 118 So. 2d 21 (Fla. 1960)
- Al Goldstein v. Stone, 96 So. 2d 227 (Fla. 3d DCA 1957)
- Vandercar v. David, 96 So. 2d 227 (Fla. 3d DCA 1957)
- Ahearn v. Fla. Power & Light Co., 113 So. 2d 751 (Fla. 2d DCA 1959)
- Minisall v. Krysiak, 242 So. 2d 756 (Fla. 4th DCA 1970)