JENNIFER FLICK, BY HER MOTHER AND NEXT FRIEND, EVA FLICK, APPELLANT,
v.
PAT MALINO AND RESERVE INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEES
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The court considered whether a wife, who co-owned property with her deceased husband and was not the owner of the dog that bit a child, could be held liable despite the husband potentially being immune under a statute.
The court found that the wife, not being the dog owner, was neither liable under nor exonerated by the statute concerning dog bite liability and immunity.
[1] A "bad dog" sign prominently displayed and easily readable on a property may relieve a dog owner of liability for a dog bite, provided the notice is genuine, effective, a…
[2] A statute imposing liability on dog owners for bites does not displace common law liability for landowners who fail to exercise reasonable care to protect visitors from a…
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Join FLexlaw to unlock all legal intelligenceA three-year-old child was bitten by a dog on property owned by the dog's owner and his wife. The owner had posted 'bad dog' signs, and the trial cour…
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SMITH, Acting Chief Judge.
By her mother and next friend, appellant Jennifer Flick, a three-year-old child, sued appellee Ms. Malino for a dog bite Jennifer suffered on the home property owned by the entireties by Ms. Malino and her husband, since deceased. Ms. Malino’s motion for summary judgment established that her husband was sole owner of the dog that bit Jennifer and that two clearly readable “bad dog” signs were posted on the fence surrounding the property. The trial court found that the “bad dog” signs complied with Section 767.04, Florida Statutes (1975), and that Jennifer’s mother had actual knowledge of the signs and of the dog’s propensities before the accident occurred. The court therefore concluded that Ms. Mal-ino was entitled to immunity from liability under Section 767.04, which provides in relevant part:
The owners of any dog which shall bite any person, while such person is . 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 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 . . 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.”
When Section 767.04 was enacted in 1949, it imposed liability on dogowners for their dogs’ bites where the common law did not— where there was no proof of prior knowledge of the dog’s propensity to bite. Romfh v. Berman, 56 So. 2d 127 (Fla.1951). In expanding that liability, however, the legislature also created a coextensive immunity for the dogowner who prominently placed an easily readable “bad dog” sign on his property where the dog was kept. Thus, appellee Ms. Malino suggests here that her husband, if sued for Jennifer’s dog bite, would have enjoyed the immunity afforded by Section 767.04; and she urges that her own liability cannot logically be greater than that of the dogowner himself.
Ms. Malino’s argument is an appealing one. Of course, we need not here decide whether the statute would protect Mr. Malino from liability to three-year-old Jennifer because he posted “easily readable” signs which she could not read, see Carroll v. Moxley, 241 So. 2d 681, 683 (Fla.1970).1 But we do find it troubling to contemplate that Mr. Malino, owner of a “bad dog,” may be exonerated, while his wife, whose exposure derives wholly from her ownership of home property by the entireties with her husband, is not. Nevertheless, the liability and the exemption created by the statute pertain only to dogowners, and Ms. Malino is neither liable under nor exonerated by the statute. Carroll v. Moxley held that the statute displaces common law concepts of liability for dogbites, but the Court emphasized that the statute displaces the common law only for dogowners, and only to the extent that the statute applies. Here, the record before the trial court on the motion for summary judgment did not establish that Jennifer came to the Malino home property without an express or implied invitation. See Wood v. Camp, 284 So. 2d 691 (Fla.1973). Therefore Ms. Malino remains potentially liable for any failure to use reasonable care to protect her from a dog known to be dangerous on the land. Christie v. Anchorage Yacht Haven, Inc., 287 So. 2d 359 (Fla. 4th DCA 1973).
Ms. Malino’s potential liability for Jennifer’s injury, in this action brought by Jennifer, is unaffected by any contributing negligence by Jennifer’s mother. Burdine’s Inc. v. McConnell, 146 Fla. 512, 1 So. 2d 462 (1941); Jacksonville Elec. Co. v. Adams, 50 Fla. 429, 39 So. 183 (1905). There is a jury issue whether the posting of “bad dog” signs was all that was reasonably required of Ms. Malino to protect young children who occasionally came to visit. Reasonable protection for the safety of an adult, who can read and understand a warning sign, is not necessarily protection of expected children. That determination is for the jury.
The apparent anomaly of exonerating the dogowner but exposing his spouse to liability as a landowner results from developments in the common law which have outpaced the modest purpose of the 1949 statute. Statutes purporting to fix and clarify the liability of dogowners seem to be anomalous as a class. Mapoles v. Mapoles, 350 So. 2d 1137 (Fla. 1st DCA 1977). The solution rests with the legislature, not with the courts.
REVERSED.
ERVIN and BOOTH, JJ., concur. . “[B]efore a dog owner will be relieved of liability, the attempt to give notice that a bad dog is on the premises must be genuine, effective arid bona fide. In every case the factual determination must be made whether the ‘Bad Dog’ sign as posted is in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim” (emphasis add- ’ ed).
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Citator
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Noble v. Yorke, 490 So. 2d 29 (Fla. 1986)…ommon law.” However, in Belcher, we noted that the strict liability of section 767.04 is limited to dog owners and a dog-bite victim may sue the non-owner of the dog upon a theory [*32] of common law liability. Id. at 1112; see also Flick v. Malino, 356 So. 2d 904 (Fla. 1st DCA 1978). Leave to amend shall be freely given. Associated Television and Communications Inc. v. Dutch Village Mobile Homes, Ltd., 347 So. 2d 746 (Fla. 4th DCA 1977). The fact that the trial court denied plaintiffs’ request for leave to…
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Huie v. Wipperfurth, 632 So. 2d 1109 (Fla. 5th DCA 1994)…ty was not liable under the statute although the security guard might be found liable under common-law negligence principles. Prior to Belcher Yacht, district courts similarly restricted the meaning of “owner” under chapter 767. In Flick v. Malino, 356 So. 2d 904, 905 (Fla. 1st DCA 1978), the court concluded that the wife of the now deceased dog owner was not an “owner” under section 767.04 even though the dog resided at the residence of the dog owner and. his wife. In Smith v. Allison, 332 So. 2d 631, 634 (…
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Flick v. Malino, 374 So. 2d 89 (Fla. 5th DCA 1979)…hile on Joseph Malino’s property, she allegedly was bitten by Mr. Malino’s dog. Mr. Malino had a “WARNING BAD DOG” sign posted on his property. The Flicks filed two suits, one of which named Pat Malino individually as defendant. See Flick v. Malino, 356 So. 2d 904 (Fla. 1st DCA 1978). The instant case involves Mrs. Mali-no as personal representative of her husband’s estate. She argued successfully before the lower tribunal that Section 767.04, which imposes a strict liability upon dog owners, also protects f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. Camp, 284 So. 2d 691 (Fla. 1973)
- Burdine's, Inc. v. Enoch Mood McConnell, Jr., 146 Fla. 512 (Fla. 1941)
- Leora Carroll and Martin Carroll v. Moxley, 241 So. 2d 681 (Fla. 1970)
- The Jacksonville Elec. Co. v. Adams, 50 Fla. 429 (Fla. 1905)
- Romfh v. Berman, 56 So. 2d 127 (Fla. 1951)
- Christie v. Anchorage Yacht Haven, Inc., 287 So. 2d 359 (Fla. 4th DCA 1973)
- Cam Mapoles & Auto-Owners Ins. Co. v. Mapoles, 350 So. 2d 1137 (Fla. 1st DCA 1977)