JULIUS SAND AND CONSOLIDATED MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANTS,
v.
SHARI ANNA GOLD ET AL., APPELLEES
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A dog owner appeals a partial summary judgment finding him liable for injuries inflicted by his German Shepherd dog. The court affirmed liability, holding that a child taking a milk bone from the dog's dish to feed it does not constitute sufficient provocation to exempt the dog owner from strict liability under Florida law.
The court held that taking a milk bone from the dog's dish does not constitute provocation sufficient to exempt the dog owner from liability. Under Florida Statute § 767.04, dog owners are strictly liable for bites except when the injured person mischievously or carelessly provokes or aggravates the dog, and the minor plaintiff's conduct fell short of this exception.
[1] A dog owner is liable for damages when their dog bites someone, unless the injured person mischievously or carelessly provoked or aggravated the dog.
[2] Taking a milk bone from a dog's dish by a minor, who wished to feed the dog, does not constitute provocation that exempts the owner from liability under Florida Statute §…
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Join FLexlaw to unlock all legal intelligence“Subject to the following exception, a dog owner's liability for his dog biting anyone is based upon § 767.04, Fla.Stat., F.S.A.”
Establishes the statutory basis for dog bite liability in Florida
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Join FLexlaw to unlock all legal intelligenceShari Gold, age nine, was bitten by one of defendant Julius Sand's German Shepherd dogs while visiting to play with Sand's daughter Karen, also age ni…
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PER CURIAM.
Defendant-appellants appeal a partial summary judgment as to liability in favor of the plaintiffs.
Plaintiff, Shari Gold, and defendant’s daughter, Karen, both nine years, were friends. Approximately once a week plaintiff went over to Karen’s house to play. Defendant had two German Shepherd dogs which often followed Karen and Shari around and on these occasions never manifested any act of meanness. On one of the occasions when plaintiff went to Karen’s house, she was bitten by one of defendant’s Shepherd dogs. Thereafter, plaintiff filed suit for damages against the defendant, Julius Sand. Plaintiff in her deposition testified that one of the Shepherd dogs just jumped on her for no apparent reason and started biting her. Defendant’s daughter in an affidavit alleged that she was feeding the dogs when plaintiff arrived and said she wanted to feed them too and then went over and took a milk bone out of the dog’s dish whereupon the dog bit her. The trial judge awarded partial summary judgment as to liability and defendants effected this interlocutory appeal therefrom.
Defendant-appellants contend there was a question of fact as to how the accident occurred and thus, it was error to find them liable. We disagree.
Subject to the following exception, a dog owner’s liability for his dog biting anyone is based upon § 767.04, Fla.Stat., F.S.A. “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 damages.”
Reviewing the record in the light most favorable to the defendant, Julius Sand, we conclude that the taking of a milk bone out of the dog’s dish by the minor plaintiff who wished to feed the dog would not constitute a provocation to except the defendants from liability under the above statute.
Accordingly, the partial summary judgment herein appealed is affirmed.
Affirmed.
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Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21 (Fla. 1978)…ntributory negligence. The latter doctrine it is argued is not applicable to dog bite cases where the action is not grounded in negligence; rather, the owner of a dog acts as a virtual insurer with regard to injuries caused by his dog. Sand v. Gold, 301 So. 2d 828 (Fla. 3d DCA 1974); cert. denied 312 So. 2d 752 (Fla.1975); Vandercar v. David, 96 So. 2d 227 (Fla. 3d DCA 1957). We agree with petitioner that the jury should not have been instructed separately on assumption of risk but should have been charged so…
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Harris v. Moriconi, 331 So. 2d 353 (Fla. 1st DCA 1976)…ed) The lack of due diligence or care. . In the legal sense, a violation of the duty to use care. . . . ” Please see also numerous case cites in Words and Phrases, Volume 6, West Publishing Co., carelessness. . See Sand v. Gold, Fla.App. 3rd 1974, 301 So. 2d 828. . By their third point, appellants urge that the trial court prejudicially erred in allowing evidence as to the family relationship between the appellants and appellee Morieoni.…
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Paskel v. Higgins, 337 So. 2d 416 (Fla. 4th DCA 1976)…R., Associate Judge. The defendant-dog owner appeals from a partial summary judgment on the issue of liability entered against him in a dog-bite case brought under the provisions of Fla. Stat., Sec. 767.04. While, on the authority of Sand v. Gold, 301 So. 2d 828 (3 DCA Fla.1974), cert. den., 312 So. 2d 752 (Fla.1975), we hold that the 6-year-old plaintiff was conclusively shown not to have “mischievously . . . provoke[d] or aggravate[d] . . . ” the dog in question, we have concluded that plaintiffs-appellee…
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