To: Prof. Lang From: A. Foster Date: November 23, 2010 Re: Smith’s defenses to dog bite Questions Presented: 1) Under Florida Statute Section 767. 4 which sets the defenses in which a dog owner can avoid liability due to injury caused by a dog bite, can dog owner avoid liability by using the defense of provocation for injuries caused by a dog bite when the owner’s dog bit an 8 year old child, when said minor while dressed in a cat costume came onto our client’s property, noticed client’s Yorkshire Terrier puppy, ran up to the window in which he viewed the puppy, while knocking on client’s window and yelling “trick or treat” with other costumed children on Halloween and was bitten when the owner opened the door to hand out treats to children, and the minor was trying to retrieve treats for Halloween? 2) Under Florida Statute Section 767. 4 which sets the defenses in which a dog owner can avoid liability due to injury caused by a dog bite, can dog owner avoid liability for a dog bite injury to a 8 year old child by employing the defense of the presence of a proper warning sign when the 8? ” x11” cardboard warning sign in which he posted in the upper pane of his living room window, which was decorated with webbing, situated on the right side of the front of his house stated “Warning “The Beast’ Lives Here”, with a picture of a Yorkshire Terrier, where the minor failed to see the sign, and after owner opened the door, minor getting bit when dog jumped up and bit his finger when minor was trying to retrieve treats for Halloween? Short Answer(s): 1) It is most improbable that our client can avoid liability for the dog bite injury due to the requirements in the dog bite statute.

The statute provides “a defense when any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident. ” Fla. Stat. § 767. 04. In this instance the court may reject that Plaintiff was negligent in contributing to the dog bite injury. The court may believe that Plaintiff did not expressly exhibit any threatening behavior directed at the Beast, nor our client. The jury may find that Plaintiff was merely trick or treating with friends and the fact that Plaintiff wore a cat costume may have been enough to set Beast off. In addition, Plaintiff never entered our client’s house. It is highly improbable that our client may be able to use the defense of provocation to be relieved from liability for injuries caused by the dog bite in this instance. ) It is unlikely that the court will find that our client may prevail in using the defense of the presence of a proper warning sign to avoid liability for the dog bite injury to Plaintiff. According to Florida Statute Section 767. 04, “the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words ‘Bad Dog. ’” Here the court may find that the sign was not posted in a prominent place because the sign was posted in the upper pane of our client’s living room window, situated on the far right side of the front of his house with a picture of a Yorkie.

The court may find that the sign was missing the required statutory language which included the words, Bad Dog, because instead it stated, “Warning “The Beast’ Lives Here”. The court may find that the sign was not easily readable because, Plaintiff has alleged he did not see the sign even though he was knocking at the window in which the sign was posted, and since it was Halloween, our client had many home decorations up, including webbing in the windows, which may have made it more difficult to read the warning sign that he had posted in his window. It is unlikely our client will prevail on the theory of the presence of a proper warning sign. Facts:

Our client, Lawrence Vincent Smith has hired to defend him in a lawsuit involving a dog bite incident that took place on his property on October 31, 2009. Plaintiff, Dobbie Brown, a minor child, has brought a cause of action with his parents, Michael and Tina Brown against our client, defendant, Lawrence Vincent Smith for statutory liability under Florida’s dog bite statute. On October 31, 2009, around 9:30 p. m. , Plaintiff, along with seven other children came running up to our client’s property to trick or treat. Plaintiff ran to the glass window where owner’s dog Beast was. Plaintiff began to pound on the window yelling, “Trick or Treat!! ” while Beast barked, an back and forth and jumped around. Our client answered the door a few minutes after he went to retrieve his hot biscuits from the oven. When our client answered the door, the kids were screaming “Trick or Treat” at the top of their lungs. Plaintiff was dressed up in a cat costume. When our client opened the door, and handed Plaintiff a biscuit, Beast sprang up from the door and bit off Plaintiff’s finger. Our client quickly restrained Beast, wrapped up Plaintiff’s hand along with the severed finger and took Plaintiff to the hospital where doctors were able to successfully reattach the severed finger. Our client had purchased Beast about eight months before the incident.

The Beast is an eight to ten pound Yorkie who has bitten our client’s niece on a prior occasion, although the bite was minor. The Beast has been around children in our client’s extended family in the past. Our client had posted a cardboard warning sign on his premises on the upper pane of the living room window on the right side of the front of the home which states, “Warning “the Beast’ Lives Here”, with a picture of a Yorkie, because his brother in law insisted he do so after his daughter was bitten. Our client has comprehensive insurance in which he believes may cover the expenses to the injury if he is shown to be liable. Plaintiff went to other homes that night where dogs were present, but he had no problems with dogs until he was bitten by The Beast.

He has never had any prior dog bites and Plaintiff himself owns a dog, a large mutt. Plaintiff wants The Beast put down. Plaintiff had admitted during his interview that he did not read the warning sign on the client’s window and he stated that he never saw the sign. Additionally, he refused to read the sign aloud or interpret the sign’s meaning during the interview. Plaintiff alleges that he stays home most of the time because of the dog bite injury. Discussion: The issue we are addressing is whether or not our client has a statutory defense to avoid liability for the dog bite injury that occurred on his premises on October 31, 2009. Florida’s current dog bite statute, Florida Statute Section 767. 4 recognizes only two statutory defenses; (1) “when there is any negligence on the part of the person bitten that is a proximate cause of the biting incident, it reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed the biting incident; and (2) if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words ‘Bad Dog. ’” The court may find that our client has failed to meet the requirements to employ the defense of provocation. The court may also find that our client cannot employ the statutory defense of the presence of a proper warning sign. It is highly improbable that our client may be able to employ either one of these defenses.

The first issue is whether our client will prevail using the defense of plaintiff’s negligence to limit his liability of the dog bite injury that occurred on his property on October 31, 2009. Florida Statute Section 767. 04 provides that “any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident. ” In order to use this defense we must prove that Plaintiff’s actions were negligent and that it was the proximate cause of the biting incident. This defense is a question for the jury to answer. Staniszeski v. Walker, 550 So. 2d 19, 20 (Fla. Dist. Ct. App. 1989). The previous version of Florida Statute Section 767. 4 provided that “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. ” In a negligence action involving an injury caused by a dog, whether a plaintiff mischievously or carelessly provoked or aggravated a dog was a question of fact for the jury. Id at 20. Provocation is an affirmative defense that must be proved by the defendant. Fla. Stat. § 767. 04. Where none of the evidence supports the provocation defense, the minor plaintiff is entitled to a directed verdict. Freire v. Leon, 584 So. 2d 98, 100 (Fla. Dist. Ct. App. 1991).

Although Florida’s legislature has amended in its statutory language, and provocation is not a total defense any longer, there have been no new cases that address the new statutory language, and the cases that follow the old provocation standards are still helpful because carelessness equates to negligence in determining whether Plaintiff was diligent in exercising due care. Under the prior dog bite statute, Fla. Stat. § 767. 04, a child of tender years could mischievously provoke a dog; thus, a dog owner’s liability was precluded under the statute where the jury determined that a child mischievously provoked the dog prior to being bitten. Porter v. Allstate Ins. Co. , 497 So. 2d 927, 930 (Fla. Dist. Ct. App. 1986).

In a dog attack cases, juries should consider all the circumstances surrounding the incident, including the age and maturity of the child, in deciding whether the child mischievously or carelessly provoked or aggravated the dog as contemplated by Florida Statute Section 767. 04. Reed v. Bowen, 503 So. 2d 1265, 1269 (Fla. Dist. Ct. App. 1986); see also Teddleton v. Florida Power & Light Co. ,145 Fla. 671, 679, 200 So. 546, 550 (1941). (Where in determining contributory negligence, the court looks at whether a person is capable, by reason of maturity, intelligence, experience, training, discretion, and alertness, of exercising care in a given situation). Id.

In one case in which the plaintiff’s acts did constitute provocation, the plaintiff had intruded on defendant’s property, and was screaming and flailing his arms in an apparent shouting match with the dog’s owner. The court refused to construe the statute narrowly, holding that the provocation could include acts directed toward a dog’s master in a dog’s presence, as well as physical acts directed toward a dog. Rosenfelt v. Hall, 387 So. 2d 544, 546 (Fla. Dist. Ct. App. 1980). Where the injured party is a child, the child’s age may affect the determination whether specific acts constitute provocation. Thus, for example, a nine-year-old who took food from a dog’s dish with the intent to feed it did not mischievously or carelessly provoke the dog. Sand v. Gold, 301 So. 2d 828, 829 (Fla. Dist. Ct. App. 1974).

In another instance, a five-year-old who accidentally rode over a dog’s tail, and then parked her bicycle and returned to comfort the dog, was found not to have provoked the dog. Harris v. Moriconi, 331 So. 2d 353, 356 (Fla. Dist. Ct. App. 1976). The First Circuit Court of Appeals has held, as a matter of law, that a child under six cannot be guilty of careless provocation because such child cannot legally be held liable for negligence under the common law. However, the dissent contended that the statute abrogated the common law and that the words “any person” were intended to include all plaintiffs, regardless of age. Id. In addition, defendant has to prove that plaintiff’s lack of due care was the proximate cause of plaintiff’s injury. The existence of proximate cause is an issue for the trier of fact.

Harm is “proximate” in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question. A defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for negligence because proximate causation cannot be proven. McCain v. Fla. Power Corp. , 593 So. 2d 500, 503 (Fla. 1992). Client’s Argument: Our client may argue that he believes that Plaintiff was negligent in contributing to his dog bite injury because he violently pounded on the glass window while wearing a cat costume and the Beast may have interpreted that as a threat. By Plaintiff yelling at the top of his lungs, his actions may have made the Beast feel as if he needed to protect his owner’s premises.

Our client may say that Plaintiff was the only one who banged on the window out of the seven other trick or treaters and therefore Plaintiff was the only child that got bitten because the Beast was only threatened by Plaintiff. He may say that Plaintiff was negligent in his conduct before our client even opened the door. Our client may argue that Plaintiff did not act as a reasonable person in the situation, compared with the other trick or treaters who did not knock violently on the window, thus causing Beast to be fearful. Our client may also allege that due to Plaintiff’s costume, and his tormenting of the Beast, that he could not be liable because Plaintiff’s actions, contributed to the situation where the Beast felt that he needed to be aggressive in order to protect his owner and premises.

Plaintiff’s Argument: Plaintiff may argue that our client may not use the defense of comparative negligence because he did not do act negligently to cause the injury to his finger. Plaintiff may argue that he acted as a reasonable child in his situation and his actions did not proximately cause the dog bite injury to his finger. He will argue that he used the palm of his hand to hit the living room window to say “Hi” to the Beast. He will state that the dog looked happy and barked jumping up and down, excited to see him. He may argue that he was not a threat to the dog or our client because he never even entered the house. He simply waited on the porch until our client opened the door.

He may argue that he was trying to retrieve the biscuit that our client was trying to hand to him, and it was then and there that the Beast jumped up and bit his finger off. Plaintiff will allege that he has never had any problems with dogs until he was bitten by the Beast. In this present instance, it will be hard to prove that Plaintiff was negligent in contributing to the dog bite injury prior to Beast biting off Plaintiff’s finger. Although Plaintiff pounded on the window and yelled Trick or Treat and was dressed in a cat costume, the Beast jumped up and severed Plaintiff’s finger when Plaintiff appeared to be of no risk to our client, or the Beast.

Those may be the reasons why the defense of comparative fault or comparative negligence may not be accepted by the jury. Conclusion on the use of the defense of comparative negligence: It can be inferred that our client has not met the requirements to employ the defense of comparative negligence, because clearly Plaintiff’s actions in knocking on the window, yelling “Trick or Treat” and being dressed in a cat costume was not enough to allege that he had contributed in any way to the dog bite injury. The remaining issue is whether or not our client may prevail in using the alternative defense of the presence of a proper warning sign to avoid statutory liability for the dog bite injury that was inflicted to Plaintiff on October 31, 2009.

The owner is not liable, except as to a person under the age of 6, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words “Bad Dog. ” Fla. Stat. § 767. 04. In order to use the defense of a proper warning sign, we must prove that it was in a prominent place on our client’s premises, easily readable and the language was clear in stating, “Bad Dog” or “Beware of Dog”. The purpose of the statutory requirement that dog owner post “bad dog” sign in a prominent place and that sign be “easily readable” is to make certain that before dog owner will be relieved of liability, the attempt to give notice that bad dog is on the premises must be genuine, effective and bona fide. First, the sign must be in a prominent place. Presently, there are no cases that define prominent place.

However in one case, the dog owner was not liable for dog bite injuries inflicted on a person who was lawfully on the owner’s premises although the owner did not display a sign containing the words “bad dog” as required by Id. , because the owner displayed the “Beware of Dogs” warning sign in a prominent place. In this case, the court found that by Defendant hanging the sign a few feet inside the gate to defendant’s securely enclosed estate that satisfied the requirement of having a proper warning sign in a prominent place. Romfh v. Berman, 56 So. 2d 127, 129 (Fla. 1951). In another case, the dog owner’s mailbox was outside the four-foot fence which had the sign attached to it. The dog jumped the fence and bit the plaintiff. The jury could find in this case that the defendant did have prominently displayed sign on his premises but that the defendant is still liable because the sign did not adequately warn. The fence was obviously there to keep the dog in and the sign to warn those who would enter the area within the fence. Because the defendant had his mailbox outside the fence the plaintiff was not unreasonable to assume he was safe from the bad dog in the fenced-in area. The court did not hold that the sign was insufficient to warn, as a matter of law, but they held that the adequacy of the warning is a jury question. Kaiser v. Baley, 474 So. 2d 906, 907 (Fla. Dist. Ct. App. 1985). Secondly, the sign must be easily readable. Because the legislature in enacting Florida Statute Section 767. 04. imposing a requirement for a sign “easily readable,” was clearly intending a sign that was “legible” and “capable of being read,” and the requirement was for a sign that was capable of being read and was not a requirement that any possible victim of a dog-bite be “capable of reading” the sign, a sign was effective to protect property owner from liability regardless of injured victim’s failure to understand the warning solely because of an inability to read or write English. Registe v. Porter, 557 So. 2d 214, 215 (Fla. Dist. Ct. App. 1990). For purposes of determining whether sign posted by dog owner provides actual notice so as to avoid liability under this section imposing liability for dog bites, “easily readable” means that plaintiff must have had ability and opportunity to read warning sign. In another instance, the court found that Defendant’s decedent was not immune from liability by virtue of Fla. Stat. § 767. 4 because it could not be said as a matter of law that a sign, even though posted in a prominent place, was easily readable to plaintiff, a three-year-old child. Flick v. Malino, 374 So. 2d 89, 90 (Fla. Dist. Ct. App. 1979). Finally, the language must be clear in stating, Bad Dog. However, the court has held in some cases that the sign may also state “Beware of Dogs,” or some similar legend, as long as it puts a visitor on notice that there are dogs on the premises that may bite. However, a “bad dog” sign is not a defense if the victim is under the age of six or if the damages are proximately caused by a negligent act or omission of the owner.

In one case the court held that the sole purpose of the sign was to put one entering the premises on notice that there were dangerous dogs on the place and it would seem that the legend “Beware of the Dogs” would serve that purpose as well or better than the legend, “Bad Dog. ” It appears that the legislature proceeded on the theory that if one disregards the sign and enters the premises he is guilty of contributory negligence and assumes the risk. Romfh v. Berman, 56 So. 2d 127, 129 (Fla. 1951). In another case, Defendant owned and kept a German Shepard dog at her restaurant. Plaintiff went to a counter which had a gate next to it, with signs on it, “Beware of Dog” and “Keep Out. As Plaintiff stood at the counter, the dog, which had not been previously seen or heard, lunged and bit her on the face. According to the court, the language on the sign was clear enough, however there were other problems that made the dog owner liable for the injuries. Not every sign, even if seen, is sufficient to put a potential victim on notice of the risk he assumes by being present on the premises. Carroll v. Moxley, 241 So. 2d 681, 683 (Fla. 1970); see also Godbey v. Dresner, 492 So. 2d 800, 801 (Fla. Dist. Ct. App. 1986). (Defendant son owned property containing a house and a separate rental apartment. Defendant mother lived in the house and owned a large dog.

There was a “beware of the dog” sign posted on the property. When plaintiff, a prospective tenant, inquired about the dog, both defendants told her that the dog was no problem. Defendant mother characterized the dog as being very old and very arthritic. As plaintiff was attempting to move into the rental apartment, the dog attacked and bit her on the arm. Defendants moved for summary judgment in plaintiff’s suit for personal injuries, contending that the prominently displayed “beware of dog” sign provided an absolute defense to the dog attack pursuant to Florida Statute Section 767. 04. The trial court granted defendants’ motion. The court reversed and remanded.

In sum, it is important as to whether a sign existed on Defendant’s property that warned of the danger of a dog on the premises; whether the sign was displayed in a prominent place on the premises; and whether the sign could be easily read. The sign must provide actual notice to the visitor of the risk of bite before the dog owner may avoid liability. Such a sign will thus be ineffective when the victim of a dog bite cannot read. Registe, 557 So. 2d at 215. Client’s Argument: Our client may argue that he satisfied the requirement of having the presence of a proper warning sign posted in a prominent location that was easily readable to the public. He may argue that although it did not contain the words “Bad Dog”, or “Beware of Dog”, his sign’s language was equivalent in advising the public, by stating, “Warning ‘The Beast’ Lives Here! Our client will say that the sign gave notice that there was a small dog in the home, and by the name on the posting, one may assume that the Beast was there and that Plaintiff assumed the risk once he entered our client’s property and began banging on the window. Our client may argue that the sign was in front of the house in a window which was clear to the eye. He may allege that in order to avoid liability he was prudent in putting up notice that there was a dog that lived in his home. He may argue that he was justified in not having the Beast restrained because many other dogs live in the neighborhood and many of them routinely wander about, without their owners.

Plaintiff’s Argument: Plaintiff may argue that our client did not satisfy the requirement of having the presence of a proper warning sign. He may say that he never even saw the sign which our client states was in a place where the public may have been put on notice. He might argue that the sign which had a picture of a puppy, and stated “Warning ‘The Beast’ Lives Here”, might have been taken as a joke. Plaintiff may also argue that the sign was located to the very far right of the house, on the top window, blocked by webbing, so therefore it was not in a prominent place, nor easily readable, nor indicating that a “Bad Dog” was on the premises.

He may state that the sign was not easily readable because if it were, he would have noticed the sign because it was on the same window in which he knocked on to say hi to the Beast. He may also say that our client had a lot of Halloween decorations up and the sign may have been hidden beneath the webbing and other decorations. Conclusion on the use of the defense of the presence of a proper warning sign: It is unlikely that our client will prevail on the defense of the presence of a proper warning sign, because the sign that our client had posted did not have the required language of “Bad Dog” or “Beware of Dog”, instead it only said, “Warning ‘The Beast’ Lives Here”.

Also, since the sign was posted on the upper window to the far right of our client’s house and may also have been blocked by his Halloween decorations, the sign may not have been easily readable to the Plaintiff, and the plaintiff stated that he did not even see the sign, although he had banged on the same window where the sign was located. Final Conclusion: It is highly improbable that our client will be able to prevail by using either of the statutory defenses that we have addressed, comparative fault or negligence and the presence of a proper warning sign. The facts in the case may lead the jury to render judgment in plaintiff’s favor and our client may be statutory liable for the injuries sustained to Plaintiff.