ROBERT PASKEL ET AL., APPELLANTS,
v.
SHARON I. HIGGINS, ETC., APPELLEES
SCHWARTZ, ALAN 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-appellees did not meet this burden, of course necessary to sustain a summary judgment, to establish that the child was on the defendants’ premises, where the bite occurred, “. upon invitation, expressed or implied, of the owner thereof . . . .” Since recovery under Fla.Stat., Sec. 767.04 requires such a showing, we reverse for a trial on this liability issue and, if appropriate, on that of damages.
AFFIRMED in part; REVERSED in part, with directions.
DOWNEY, J., and MORROW, RUSSELL 0., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Porter v. Allstate Ins. Co., 497 So. 2d 927 (Fla. 5th DCA 1986)…subject to the statutory defense of mischievous provocation. Additionally, two cases from the Fourth DCA have implicitly applied this defense to small children. In both Minisall v. Krysiak, 242 So. 2d 756 (Fla. 4th DCA 1970), and Paskel v. Higgins, 337 So. 2d 416 (Fla. 4th DCA 1976), the court recognized the existence of this defense, but reversed for the plaintiff in both eases based on insufficient proof of provocation. Appellant relies on Harris v. Moriconi, 331 So. 2d 353 (Fla. 1st DCA), cert. dismissed…
Authorities Cited
- Williams v. State, 301 So. 2d 828 (Fla. 1st DCA 1974)
- Sand v. Gold, 301 So. 2d 828 (Fla. 3d DCA 1974)
- Park v. Osceola Cnty., 312 So. 2d 752 (Fla. 1975)
- Orval H. Murdock & Volkswagen Ins. Co. v. Aurelio Gutierrez et ux., 312 So. 2d 752 (Fla. 1975)