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Man's Best Friend Could Become Their Biggest Liability

Dogs are the most popular animals owned as pets in the United States.  That said, “man’s best friend” can create huge exposure for its owner.  Did you know many homeowner’s policies exclude dog liability?  Every dog owner would be wise to check their insurance policy and discuss this potential exposure with their insurance agent.

The most common potential exposure comes from a dog bite.  Section 767.04, Florida Statutes, is entitled “Dog owner’s liability for damages to persons bitten.”  Some key takeaways from the Statute:

  • It is directed to the owner’s liability. Others can also be liable if they acted negligently in handling or controlling the dog, but the Statute is directed solely to the owner.
  • It covers bites that occur in public places or when the victim is lawfully in a private place (including the owner’s property).
  • In Florida, a dog does not get “one free bite.” The Statute specifically applies “regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness.”
  • Comparative negligence still applies, though, meaning that if the jury determines there was negligence on the part of the person bitten that was a cause of the biting incident, the owner’s liability is reduced by the bite victim’s percentage of negligence.
  • When a bite occurs on the owner’s premises, things become slightly more complex. If there is displayed “in a prominent place” a sign that is “easily readable” that includes the words “Bad Dog,” the owner is not liable, unless:
  • The victim is under the age of 6 or
  • The owner is independently negligent and that is the cause of the damages
  • Put simply, the Statute protects those under the age of 6 as they are the most vulnerable and the least able to protect themselves. Furthermore, a dog owner can always be held liable for acting negligently.  The Statute has its greatest influence when, for example, an otherwise non-negligent owner has a previously docile dog that bites someone.

Another Statute of interest is Section 767.01, Florida Statutes, entitled “Dog owner’s liability for damages to persons, domestic animals, or livestock.”  It is a far simpler Statute and says, “Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of ‘domestic animal’ and ‘livestock’…”  It sounds straightforward, doesn’t it?

In the recent case of Parsons vs. Culp, 46 F.L.W. D2070 (Fla. 2d DCA Sept. 17, 2021), a dog named “Bogey” escaped from his backyard tether and came upon a lady walking her dog, “Diamond.”  Diamond tried to run away and wrapped the leash around her elderly owner’s ankles, causing the owner to fall and fracture her leg.

There was no bite involved, so Section 767.04 did not apply.   The lawyer for Bogey’s owner raised several arguments as to why the injured victim was negligent – as is almost always done by the defense.  Her counsel, in turn, argued the provisions regarding comparative negligence contained in Section 767.04 are not contained in the straightforward provisions of Section 767.01 that seemingly makes the owner’s liability strict and absolute.

Following a lengthy discussion of the caselaw, the three appellate Judges could not even totally agree amongst themselves, with one partially dissenting from the other two.  The majority, however, concluded that a defense of the victim’s comparative negligence, specifically provided for in Section 767.04, was equally applicable in Section 767.01 – even though that Statute is completely silent to it.  The Court further held a “Fabre defense” (seeking to apportion fault to one not a party to the case) is not available under either Statute.  Only those defenses set forth in Section 767.04, and through caselaw extended to Section 767.01, are available.

The moral?  Check your insurance and let sleeping dogs lie.

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