Florida/Georgia Personal Injury & Workers Compensation

...Jones, 408 So.2d 769 (Fla. 2d DCA 1982), which we find expressly conflicts with Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla. 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue concerns the applicability of section 767.01, Florida Statutes (1979), which provides that dog owners shall be strictly liable for any damage done by their dogs....

...d been playing with the dog which they had tied to a small wagon. Davis' dog spotted another dog and ran after it. As the dog ran past Donnie, the wagon struck him causing a permanent injury to his leg. The suit filed by petitioner was predicated on section 767.01, which provides: "Owners of dogs shall be liable for any damage done by their dogs to persons." The trial court directed a verdict in favor of petitioner on the issue of liability, finding Davis to be strictly liable for petitioner's injury under the statute. In reversing and holding that section 767.01 did not apply under the facts of this case, the district court noted the well-established rule that "[s]trict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility." 408 So.2d at 771 (quoting Prosser, Law of Torts, 518 (4th ed....

...The court then determined that, based upon a review of the statute's history, the legislature intended to impose strict liability upon a dog owner only for those risks created by the act of ownership. The court expressly held that "[s]tatutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury." Id....

...Nor was the dog found to have taken any affirmative or aggressive action toward Donnie. Id. at 772 (citing Rutland v. Biel, 277 So.2d 807, 809 (Fla. 2d DCA 1973), and Smith v. Allison ). The district court concluded that Donnie's injury was not the result of the risk created by dog ownership, and held that section 767.01 did not apply to create strict owner liability....

...The district court acknowledged that its decision conflicts with Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla. 1978), and without any additional reasoning or analysis, adopted Judge Smith's dissent in Mapoles because "the Mapoles decision extends the liability under section 767.01 far beyond that contemplated by the legislature ..." 408 So.2d at 772. In Mapoles, a St. Bernard dog was placed on the rear seat of a Volkswagon next to a loaded shotgun. The dog's movements in the car caused the gun to discharge and injure someone outside the car. The Mapoles court noted that section 767.01 "virtually makes an owner the insurer of the dog's conduct" and *1156 found the owner to be liable because the injury resulted from the affirmative act of the dog....

...og but acting less like a dog because it was tied to a wagon? We think not. The trial of a suit for damages should never degenerate to a battle of experts giving opinions as to whether a dog exercised canine characteristics or human characteristics. Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog's conduct....

...The implications of attempting to administer any of these alternative standards to this case in an attempt to distinguish this case on any of those bases would quickly become mired in metaphysics. Our reasoning is in line with a number of previous cases decided under section 767.01....

...passive. That affirmative behavior brought the dog into direct contact with the petitioner in a manner which caused injury to petitioner's leg. Thus, we find the respondent's insured, Davis, as owner of the dog, to be liable to the petitioner under section 767.01....

...As Shane ran past Donnie, the wagon struck Donnie, causing a permanent injury to his leg. Shane never came in contact with Donnie. In concluding that strict liability is not applicable in this case, I agree with the district court that it was the intent of the legislature that "[s]tatutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury." Utica Mutual Insurance Co....

...The respondent was attacked by the petitioner's dog and knocked to the pavement of a public way receiving injury though she was not bitten by the animal. The trial judge entered a summary judgment in favor of the defendant, petitioner, as he entertained the view that since Sec. 767.01, F.S.A., had been repealed by Sec....

...versy. It was the judge's conviction that the latter statute was held in Romfh v. Berman, Fla., 56 So.2d 127, to have superseded the former one. Before proceeding with the thought, it is well to take a look at the two statutes. The earlier one, Sec. 767.01, enacted in 1901, simply provided that "owners of dogs shall be liable for any damage done by their dogs to * * * animals * * * or to persons." The later statute, Sec....

...Berman, supra, with reference to the effect of the later statute upon the earlier one, that when the title of Sec. 767.04 was read with the body of the Act the court did "not think the conclusion [could] * * * be escaped that as to injury to persons by dogs Chapter 25109 [Sec. 767.04] repealed and superseded Section 767.01, F.S.A., and is now the governing law." We, too, think the expression was obiter dictum inasmuch as the court was dealing with a case in which damage had resulted from the bite of a vicious dog and an element of the case was the owner's knowledge or ignorance of the dog's propensities....

...ncy between the two, or that the last was clearly intended to prescribe the only governing rule, or that it revises the subject matter of the former.'" We do not discover any of these features in Sec. 767.04 which would justify our holding that Sec. 767.01 was meant to be repealed, and we recede from the obiter dictum in Romfh v....

...The first statute imposing liability on a dog owner read: "Owners of dogs shall be held liable for damages to persons and stock killed or injured by their dogs." Rev.St. 1892, Sec. 2341. The language was changed, as shown by Section 3142, Gen.St. 1906, and still appears, as Section 767.01, F.S.A., as follows: "Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." In 1949 the legislature enacted Chapter 25109, Laws of Florida, now Section 767.04,...

...by Dogs and Creating a Liability of the Owners of Such Dogs.' When this title is read with the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law." By its express wording the 1949 Act, Section 767.04, F.S.A., is concerned with a dog owner's liability for dog bites, but the instant case involves an injury other than by biting....

...nd, as well as in a dog bite injury. Appellee argues that the 1949 act applies only to dog bite damage; that the Romfh case dealt with a dog bite injury and that the Supreme Court's ruling above quoted should be considered as holding that it repeals Section 767.01 only as to dog bite damage, leaving Section 767.01 in effect for other injury by dogs; and that under Section 767.01 the liability imposed is absolute and precludes the use of the defenses of contributory negligence or assumption of risk. We are not required to pass upon the conflicting contentions of the parties as to whether or not the 1949 act has superseded the earlier act for injuries by dogs other than by biting, because even under the latter, Section 767.01, the defense of assumption of risk can be raised. Section 767.01 eliminated scienter as a necessary element for liability....

...Consequently, he refrained from touching her. Shortly thereafter, petitioner returned to the location of the kitchen, began stroking the dog on the top of the head and scratching her under the chin, whereupon petitioner was bitten on the lip. Pursuant to Sections 767.01 and 767.04, Florida Statutes (1975), [1] petitioner sought *23 damages from respondents....

...The evidence on that issue included some facts of a kind which could have been relied on to establish assumption of risk by the plaintiff, through inciting and provoking or inducing the dog's playful conduct which caused her to fall. (Emphasis supplied) 96 So.2d at 228. The court then went on to distinguish Section 767.01 from Section 767.04, noting that the latter by its express wording is concerned with a dog owner's liability for dog bites while the former applies to injuries to a person caused by a dog other than by biting....

...Appellant argued that Section 767.04 expressly allowing statutory defenses was applicable to an injury caused by an animal other than a dog bite injury. Appellee contended that Section 767.04 applied only to dog bite damage and that if Section 767.04 repealed and superseded Section 767.01 pursuant to this Court's holding in Romfh v. Berman, 56 So.2d 127 (Fla. 1951), it did so only as to dog bite damage leaving Section 767.01 in effect for other injury by dogs. This Court then held that: We are not required to pass upon the conflicting contentions of the parties as to whether or not the 1949 act has superseded the earlier act for injuries by dogs other than by biting, because even under the latter, Section 767.01, the defense of assumption of risk can be raised....

...s cause is remanded to that court, with instructions to remand to the trial court for further proceedings not inconsistent with the views expressed herein. It is so ordered. BOYD, ENGLAND and HATCHETT, JJ., concur. OVERTON, C.J., dissents. NOTES [1] § 767.01, Fla....

...was frequently difficult for them to do; their inability in that regard often resulting practically in a denial of justice." [3] Fla.Rev.Gen.Stat. § 2341 (1892) was included as Sec. 7044 of Compiled General Laws, 1927, and was reenacted in 1941 as § 767.01, Fla....

...Sanderson is before this Court on the same issue based upon certified conflict with Whitlock v. Elich, 409 So.2d 110 (Fla. 5th DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. This case concerns application of the Fireman's Rule both as a defense for a dog owner regarding a claim for injuries under section 767.01, Florida Statutes (1981), and as a defense for the owner of the premises *216 where dogs are located but who does not own the dogs. We agree with the district court that the Fireman's Rule, as a common law defense, does not apply to claims under sections 767.01 and 767.04, Florida Statutes (1981)....

...the dark. Kilpatrick ran back to the fence and, while climbing over the top, caught his trousers and impaled himself in the calf on one of the spikes. Officer Kilpatrick brought his claim against Mr. Sklar and Dr. Ferrer on two counts: first, under section 767.01, asserting the statute renders dog owners strictly liable for any injury or damage caused by their dog; second, under a theory of common law negligence, alleging that because the Great Danes were improperly trained and not confined in...

...e dogs and by climbing over the fence to get out of the backyard. It is undisputed that the dogs were owned by Alfred Sklar individually and Dr. Olga Ferrer had no ownership interest in the animals. The district court, in considering the claim under section 767.01, held the defenses available in section 767.04 are also applicable to causes of action accruing under 767.01....

...We find no reasonable justification to change this principle that has become well established in this state. The reasons justifying its existence are still viable. The Instant Case In this case, Alfred Sklar asserts he is entitled to the Fireman's Rule defense in the claim against him under section 767.01, as the owner of the four Great Danes....

...court was considering personal injuries which did not involve a statutory cause of action. We agree with the Third District Court of Appeal in the instant case that there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04, Florida Statutes (1981)....

...action. We find the same principle and reasoning applies to common law defenses. We also agree with the Third District that only those defenses provided by statute under section 767.04 apply. We also agree that those defenses apply to a claim under section 767.01....

...EHRLICH, C.J., concurs in part and dissents in part with an opinion. EHRLICH, Chief Justice, concurring in part and dissenting in part. I agree with the majority that the Fireman's Rule, however defined, is not a defense to actions brought under sections 767.01 and 767.04, Florida Statutes (1981)....

...s' twelve year old son. The instant action was then instituted against the dog owners and the driver, among others, for the alleged wrongful death of the plaintiffs' son. The sole question to be determined on this appeal is whether, under Fla. Stat. § 767.01, F.S.A., liability might be imposed upon the owners of the dogs for the boy's death. The driver of the car is not a party to this appeal and the question of liability on his part has not been determined below and is not before us. Fla. Stat. § 767.01, F.S.A....

...The lower court held as a matter of law, that the dogs were not the cause of the damage. Our problem is to consider whether the dogs' participation in or contribution to the end result was sufficient for a jury to consider the question of liability under Fla. Stat. § 767.01, F.S.A., supra....

...y fence was not maintained rather than consequential damage incurred through fright of the animal. It has been held in Florida, however, as noted above, that non-bite damages suffered in an attack by a dog were within the contemplation of Fla. Stat. § 767.01, F.S.A....

...* * * We cannot say, as a matter of law, that the defendant Nicholson's act in permitting the dog * * * [to run free] *609 was not one of the proximate causes of the plaintiff's injuries. * * *" Although the plaintiffs proceed in the instant case upon the theory of absolute liability enunciated in Fla. Stat. § 767.01, F.S.A., rather than a theory of negligence, the question with respect to causation is the same....

...Carroll v. Moxley et al., Fla. 1970, opinion filed September 16, 1970; Vandercar v. David, Fla.App. 1957, 96 So.2d 227; Knapp v. Ball, Fla.App. 1965, 175 So.2d 808. Liability for non-bite damages suffered in an attack by a dog is within the contemplation of Section 767.01 of the statute, and under that section knowledge of the vicious propensities of the dog is not necessary....

...In a dog injury case, it is no defense that a plaintiff acted unreasonably (was contributorily negligent), unless his behavior was so blatant as to supersede the dog's behavior as the legal or proximate cause of plaintiff's injuries. In view of F.S. §§ 767.01 and 767.04, F.S.A....

...For the foregoing reasons the judgment appealed from is reversed and the cause remanded for a new trial under proper instructions consistent herewith. Reversed and remanded. CROSS, C.J., concurs. ADAMS, ALTO (Retired), Associate Judge, dissents, without opinion. NOTES [1] F.S. § 767.01, F.S.A....

...From a verdict and judgment of $25,000 in favor the plaintiff against the defendants Robert and Donna Wendland this appeal has been taken. Plaintiff's case is bottomed on Section 767.04, Florida Statutes. [2] That statute was first enacted in 1949. In Romfh v. Berman, 56 So.2d 127 (Fla. 1952) it was said to impliedly repeal Section 767.01, Florida Statutes. [3] Later, in Sweet v. Josephson, 173 So.2d 444 (Fla. 1965), the Supreme Court decided that the two statutes were not inconsistent. In that case the Court said: "In sum, the first statute [Section 767.01] fixes liability on the owner for any damage at all caused by his dog; the second statute [Section 767.04] puts upon him responsibility only for injury caused by the bite of his dog." (Emphasis supplied.) 173 So.2d at 446. Hence, it is unnecessary to discuss Section 767.01, supra, and the numerous cases [4] involving damages occasioned by other acts of dogs. [5] *370 Turning now to Sec. 767.04, it is clear that this enactment was a recognition that the need to protect an agrarian society from depredations of dogs on live stock and crops, as was the purpose of the then existing statute, 767.01, was no longer the main purpose to be served and that such statute should be revised, not only for the purpose of protecting those damaged by acts of dogs but to relieve the owners of dogs used for pets and protection of the owners in modern society from the harshness of the strict liability created by the former statute....

...ggravate the dog inflicting such damage; nor shall any such owner be so liable 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.'" Sec. 767.04, Fla. Stat. [3] 767.01 "Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." [4] Sweet v....

...their dogs to sheep or other domestic animals or live stock, or to person. " (Emphasis supplied.) Thus once again the compiler placed words in the Compilation which were not there when the act was adopted by the legislature. Although the validity of Section 767.01, Florida Statutes (1975), cannot now be questioned because of the rules relating to statutory re-enactments, Section 767.01 should be given a restrictive scope because the legislature never specifically included damage to persons within the purview of the statute, at the time of the enactment of these laws....

...[This] Statute purports to require that Plaintiffs, herein, prove by the greater weight of the evidence that defendants were careless or negligent in allowing their cattle to run at large upon or stray upon the highway upon which the accident occurred, which is the subject matter of this suit. "3 ... Florida Statute 767.01 provides as follows: "......

...assumption of risk. We hold those contentions to be without merit, and affirm. The trial judge was eminently correct in ruling that the defendant was responsible for the injury which her dog inflicted on plaintiff, without the need to show scienter. Section 767.01, Fla....

...Josephson, Fla. 1965, 173 So.2d 444; Josephson v. Sweet, Fla.App. 1964, 173 So.2d 463; Vandercar v. David, Fla.App. 1957, 96 So.2d 227, 66 A.L.R.2d 912; Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196. Liability of the owner of a dog for such injuries under § 767.01 is based on an obligation as an insurer rather than on negligence, and contributory negligence as such is not a defense. See Vandercar v. David, supra, wherein this court said: "* * * But the fact that liability is imposed by statute [767.01], and not based on negligence, does not require rejection of an offered defense that the injured party incited and encouraged the dog's action which caused injury....

...church. While viewing an aquarium in the living room with other guests, she heard a dog yelp. She looked down, just a little to her side and back of her and saw the dog. She took a step backward, tripped over the dog, and fell flat on her back. F.S. Section 767.01 F.S.A. provides: "Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." While liability of the dog owner imposed by F.S. § 767.01 F.S.A....

...So it is clear that she saw the dog behind her before she took the step backward. Under the circumstances we believe that there was a genuine issue as to a material fact, and that the lower court erred in entering the partial summary judgment as to liability. Appellant next contends, and we so hold, that F.S. § 767.01 F.S.A....

...Tomasetti estimated Greenstein's car to be traveling at 60 miles per hour. Greenstein testified to the contrary, estimating his speed just prior to the accident at 30 miles per hour. In directing a verdict for Greenstein, the trial court concluded that under Fla. Stat. § 767.01, F.S.A....

...1973, 280 So.2d 431, to both the liability and damage aspects of this case. For reasons to follow, we hold that no reversible error was committed, and the judgment accordingly is affirmed. We see little difficulty in upholding the trial court's conclusion that Section 767.01 applies to this case. Appellants' reliance on Rutland v. Biel, Fla.App. 1973, 277 So.2d 807, is not justified in the case at bar. In that decision, the Second District Court of Appeal held that 767.01 is inapplicable where the dog takes no affirmative or aggressive action toward the injured person....

...In considering this point, it is essential to keep in mind the principles of law which we think the trial court properly applied, and also to discuss together the appellants' contention that comparative negligence should have been considered by the jury. Under the statutory liability created by Section 767.01, the owner of a dog is cast virtually in the role of an insurer, and he is strictly liable for damage done to persons by his dog....

...Loveless, as managing officer of Anchorage Yacht Haven, Inc., was aware that the dog had been on the premises for over a year, and although he described the dog as gentle, an employee testified that the animal was vicious. Appellant first contends that under F.S. Section 767.01, F.S.A., [1] whereby the owner of a dog is liable for any damage done to persons, "owner" should be defined or construed broadly so as to include not only the actual owner, but the possessor, keeper or custodian of the animal....

...n this case. The evidence shows without dispute that none of the appellees owned the dog, nor were any of them the keeper, custodian or possessor of the dog. Thus, there was no basis for imposing liability upon any of the appellees by virtue of F.S. Section 767.01, F.S.A., and the court did not err in directing a verdict in favor of appellees on this count of the complaint....

...The judgment as to appellee-Anchorage Yacht Haven, Inc. is reversed, and this cause is remanded for a new trial on Count II of the complaint as against such appellee. Affirmed in part; reversed in part and remanded. WALDEN and DOWNEY, JJ., concur. NOTES [1] "767.01 Owners responsible....

...Keeling, 1 Ld. Raym, 606, 91 Eng. Rep. 1307 (1700); I Smith v. Pelah, 2 Strange 1264, 93 Eng.Rep. 1171 (1747). Such was the law in Florida until the passage of Chapter 3294, Acts of 1881, revised by Chapter 4979, Acts of 1901, and subsequent acts, now Section 767.01, F.S.A....

...by Dogs and Creating a Liability of the Owners of Such Dogs." When this title is read with the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law....

...tioner's dog growl. It is not clear whether the dog was growling at the plaintiff or the plaintiff's dog. The plaintiff jumped on top of his car, and he injured his back which had been operated on three weeks earlier. He brought an action under F.S. Section 767.01, F.S.A....

...clearly improper in an action brought under Chapter 767, Florida Statutes." I disagree. Florida courts previously have held assumption of risk which is closely aligned with contributory negligence is a proper defense to an action brought under F.S. Section 767.01, F.S.A....

...Animals § 150, pages 1254 and 1255. The District Court erroneously misapplied Carroll v. Moxley, Fla., 241 So.2d 681, in support of its position negating contributory negligence. That case involved a dog bite and construed F.S. Section 767.04, F.S.A., and not F.S. Section 767.01, F.S.A. It did not purport to construe F.S. Section 767.01, F.S.A....

...Accordingly, if a jury believes from the weight of the evidence in *138 a dog injury case the plaintiff's injury was the proximate result of his own negligence, the injury and damage ought not to be charged to the dog's owner. The statute does not otherwise provide. Section 767.01 does not state that it is imposing absolute liability upon dog owners, and I do not believe the Legislature intended such a construction....

...ute or settled in this jurisdiction. Common law rules will prevail in the absence of an express, unequivocal statutory mandate to the contrary. Bryan v. Landis, 1932, 106 Fla. 19, 142 So. 650. The mandate of absolute liability is not present in F.S. Section 767.01, F.S.A....

...justify it. I think we have now judicially amended and unjustifiably extended the statute by imposing absolute liability on dog owners in all cases where dogs are involved — even in very remote situations — including non-dog bite ones. NOTES [1] "767.01 Owners responsible....

...Myrna George fell from her bicycle when a small dog ran into her path. She suffered a broken hip and claimed that the dog had also bitten her. George sued Frederick and Alicia Mann, alleging that they were the owners of the offending dog and were thus strictly liable for her damages pursuant to section 767.01, Florida Statutes (1989)....

...Gagnon, 597 So.2d 305 (Fla. 4th DCA) (improper closing argument cannot be deemed harmless where issue to be decided by jury is close), rev. denied, 604 So.2d 487 (Fla. 1992). Accordingly, we reverse and remand for a new trial. NOTES [1] See generally §§ 767.01 and 767.04, Fla....

...[2] A few seconds after the dog was placed in the Volkswagen, the loaded shotgun discharged severely injuring appellee-plaintiff Clayton Mapoles, III, who was standing near the car. The instant judgment as to liability on the part of Cam Mapoles was entered by the trial court upon the theory that Section 767.01, Florida Statutes, imposed strict liability upon the dog owner under the facts of this case. [3] Section 767.01, Florida Statutes, provides, inter alia: "......

...Mapoles, 332 So.2d 373 (Fla. 1st DCA 1976), this court, in reversing a summary judgment as to liability, stated: "... This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01, Florida Statutes, of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon." [4] English v....

...[4] Chapter 767 of the Florida Statutes is titled "Damage by Dogs" and governs owner liability. In Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1156 (Fla.1985), the Supreme Court of Florida explained that where a dog acts in an affirmative and aggressive manner, Section 767.01 becomes "a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog's conduct." In the Joint Statement of Factual Matters submitted by the parties at trial, the debtors concede th...

...travel on the roadway. The principal point on appeal urges error upon the trial court's denial of defendants' motions for a directed verdict at the end of all the evidence. The plaintiff relies for affirmance on several cases interpreting Fla. Stat. § 767.01, the "Damage [Done] by Dogs" statute, which hold that a dogowner has an absolute liability for damage done by his dog....

...ner in cases where the damage done by the dog, although not as a result of an attack, is the direct cause of injury. It can reasonably be argued, as plaintiff-appellee does argue here, that reasoning by analogy the courts have interpreted Fla. Stat. § 767.01 to impose an absolute liability in every case where the actions of the dog are a factor in plaintiff's ultimate injury....

...ned in front of me to run over to the other side. * * * [I moved] to the right. * * It was a sharp swing to the right. I guess I turned a little bit too far in avoiding him and I crashed." The Florida "Damage [Done] by Dogs" statutes is Chapter 767. Section 767.01 thereunder, concerning "Owners responsible," provides that "[o]wners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." This statute, passed in 1901, obviously has as its intent the protection of an agrarian society....

...he future. In Rutland v. Biel, Fla.App. 1973, 277 So.2d 807, the Court of Appeal, Second District, in reversing a partial summary judgment on the issue of liability in favor of the plaintiff, held: "Appellant next contends, and we so hold, that F.S. § 767.01 F.S.A....

...a dog injury case, it is no defense that a plaintiff acted unreasonably (was contributorily negligent), unless his behavior was so blatant as to supersede the dog's behavior as the legal or proximate cause of plaintiff's injuries. In view of F.S. §§ 767.01 and 767.04, F.S.A....

...erseding the behavior of the dog would have to be shown to be more than a mistake on the plaintiff's part as to the intention of the dog to bite or attack him. " [Emphasis added] Accordingly, we hold that the absolute liability imposed by Fla. Stat. § 767.01 is inapplicable to the facts of this case and, therefore, we reverse the judgment appealed....

...Appellee, in his brief and upon oral argument, urged (1) the presumption of the correctness of the judgment, and urged (2) that motions for directed verdicts are not to be granted where there is conflict upon a material fact, (3) that the Florida "Damage [Done] by Dogs" statute (Fla. Stat. § 767.01) has been held to make dog owners virtually insurers with regard to injuries caused by a dog, and (4) that, assuming arguendo, Smith was not the owner of the dog, then the question of his negligence was a question for the jury....

...Appellant subsequently filed a third-party complaint for negligence and contribution against Steven Strassel, who threw the frisbee. Third-party defendant Strassel then filed a motion for summary judgment, alleging that appellant was strictly liable for the actions of his dog under section 767.01, Florida Statutes (1983). Guest then moved to amend his complaint to state a cause of action in strict liability under section 767.01....

...In Jones, a dog was tied to a wagon by a child. The dog saw another dog and began to chase it, causing the wagon to run over another child, resulting in permanent injury to his leg. The court found that the owner *233 of the dog was strictly liable under section 767.01, [1] stating: Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog's conduct....

...ohibiting or permitting contribution in such a case. We can think of no policy reason for denying it; and appellee provided us with none. Appellant would still be liable to Mr. Guest for the full amount of the judgment. As to the quote in Jones that section 767.01 "virtually make[s] an owner the insurer of a dog's conduct," even an insurer is entitled to contribution under the Act....

...led to contribution from city found to have acted negligently in same occurrence); see also Ladwig v. Ermanco Incorporated, *236 504 F. Supp. 1229, 1237, 1239 (E.D.Wis. 1981). WALDEN, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur. NOTES [1] Section 767.01, Florida Statutes (1983), states: 767.01 Owners responsible Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons....

...the dog. It is appellant's contention that such an allegation is not necessary. Appellee claims failure to set forth and prove such allegation is fatal to the cause of action. We are called on to resolve the dispute. In 1881 the legislature adopted § 767.01 Fla....

...ed by persons bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness." The determinative question on appeal, is what effect, if any, did the subsequent legislation (§ 767.04) have on the prior statute (§ 767.01)....

...by Dogs and Creating a Liability of the Owners of Such Dogs.' When this title is read with the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law." 56 So.2d at 128. It is our conclusion that Romfh is distinguishable from the present case, in that, here the plaintiff was not bitten by the dog while in Romfh the injury occurred by bite. It is obvious from the careful reading of the two sections that § 767.01 was superseded by § 767.04 only in regard to dog bites, because § 767.04 says "bite" not injury....

...bite case, and as a result Justice Drew found it necessary to write a dissent claiming that the trial judge erred in making the following rulings: "This suit is based on 767.04, Florida Statutes, F.S.A. This section is to be read in connection with 767.01 as both of these Statutes are in effect." 102 So.2d at 618....

...We similarly concur in the trial court's interpretation as stated above. In our case, the trial court erred in requiring the plaintiff to allege prior knowledge by the owner of the vicious propensity of the dog by its owner, in the complaint. This result obtains because this case is controlled by § 767.01 in that it is a dog injury case not a dog bite case, thus, the rule existing prior to § 767.04 applies, to-wit, the owner is responsible for the acts of his dog regardless of any prior knowledge of vicious propensity....

...Beik of Pitts, Eubanks & Ross, P.A., Orlando, for appellants. *545 James R. Lavigne, P.A., Winter Park, for appellee. COBB, Judge. The defendant below appeals the granting of a new trial by the trial judge following a jury verdict finding no liability on the plaintiff's claim of injury by a dog pursuant to section 767.01, Florida Statutes (1977)....

...ndants. QUASHED and REMANDED. ORFINGER, J., and GREEN, OLIVER L., Associate Judge, concur. NOTES [1] Owners Responsible. Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons. § 767.01, Fla. Stat. (1977). [2] The defenses set forth in section 767.04, which concerns dog bites, are also applicable to other damages caused by a dog under section 767.01....

...As Shane ran past Donnie, who was slightly ahead of Shane and the other two boys, some portion of the wagon struck Donnie, resulting in permanent injury to his leg. The instant lawsuit against Davis and appellant, his insurer, ultimately ensued. The complaint was predicated on Section 767.01, Florida Statutes (1979), which provides: "Owners of dogs shall be liable for any damage done by their dogs to sheep or *771 other domestic animals or livestock, or to persons." In construing a statute, the court should where possible...

...he object to be obtained. Englewood Water District v. Tate, 334 So.2d 626 (Fla. 2d DCA 1976). The Fourth District Court of Appeal in Wendland v. Akers, 356 So.2d 368 (Fla. 4th DCA 1978), cert. denied, 378 So.2d 342 (Fla. 1979), traced the history of section 767.01 as follows: As originally enacted in 1881, the wording was: "that all owners of dogs shall be held liable and responsible for damages to sheep or other stock killed or maimed by their dogs." Chapter 3294, Laws of Florida (1881)....

...their dogs to sheep or other domestic animals or live stock, or to person. " (Emphasis supplied.) Thus once again the compiler placed words in the Compilation which were not there when the act was adopted by the legislature. Although the validity of Section 767.01, Florida Statutes (1975), cannot now be questioned because of the rules relating to statutory re-enactments, Section 767.01 should be given a restrictive scope because the legislature never specifically included damage to persons within the purview of the statute at the time of the enactment of these laws....

...at 369-370, n. 5. Prosser, Law of Torts, 581 (4th ed. 1971), states: "Strict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility." Consequently, appellant argues, section 767.01 should be construed to render dog owners liable only for the risk they created by owning the dog....

...the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed." Smith v. Allison, 332 So.2d 631, 634 (Fla. 3d DCA 1976). We agree. Statutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury....

...nie's injury. But for the wagon, no injury would have occurred when Shane ran past Donnie, inasmuch as the dog never came in contact with the boy. Because this injury was not caused as a result of the risk created by dog *772 ownership, we hold that section 767.01 does not apply here....

...Shortly thereafter, the dog's movements caused the gun to discharge and severely injure the plaintiff, who was standing outside the vehicle. The court held that the damage to the plaintiff was caused by the affirmative act of the dog. We believe the Mapoles decision extends the liability under section 767.01 far beyond that contemplated by the legislature and that Judge Smith's dissent expresses the better view. It has also been held that section 767.01 is inapplicable "where the dog takes no affirmative or aggressive action toward the injured party." Rutland v....

...Suddenly the dogs charged Rattet who immediately leaped to the top of the cage and then to the nearby fence. He jumped down from the top of the fence and suffered physical injuries as a result. Rattet filed the present lawsuit for damages against Dual Security Systems and alleged liability pursuant to Section 767.01 and 767.04, Florida Statutes (1975) and common law negligence....

...e on his premises a sign easily readable including the words "Bad Dog." ..... Rattet's injuries having been sustained as a result of jumping from the fence, the trial judge was correct in determining that liability, if any, may only be imposed under Section 767.01, Florida Statutes (1975)....

...Hereunder we are called upon to determine whether the defenses under Section 767.04 are also available to a dog owner who is sued pursuant to Section 767. 01. Rattet argues these defenses are not available. Under the statutory liability created by Section 767.01 and 767.04, the owner of a dog is cast in the role of an insurer and he *951 is liable for damages caused by his dog....

...able to an owner. [3] Allstate Insurance Company v. Greenstein, 308 So.2d 561, 563 (Fla. 3d DCA 1975), supra, and 2 Fla.Jur.2d Animals § 37 (1977). The defenses of assumption of the risk and proximate causation in the past were valid defenses under Section 767.01....

...pursuant to Section 767.04 and has available to him only those defenses expressed in the statute. The court did not, however, determine the availability of these defenses to a dog owner for injuries caused to a person other than a dog bite. Sections 767.01 and 767.04 having made an owner the insurer against damage done by his dog, we conclude that these statutory defenses are also available to the owner of a dog brought to trial under Section 767.01. Holding to the contrary would bring about the absurd results of (1) having proximate causation being the only defense available under Section 767.01, [4] and (2) permitting a plaintiff to recover damages under Section 767.01 despite the fact that he or she provoked the dog or "bad dog" signs had been properly posted....

...We find that the trial court erred in granting the summary judgment and, accordingly, reverse. The Walls filed an action against the Cohens as a result of injuries sustained by Mrs. Wall after encountering the Cohens' dog, Bogart. The complaint alleged that the Cohens were liable pursuant to section 767.01, Florida Statutes (1987), for injuries sustained by Mrs....

...The dog had escaped from the house and was running toward Mrs. Wall, apparently on his way to join some boys playing ball across the street. It was also alleged that Mrs. Wall was frightened and stumbled backwards falling over unattended bicycles and that the Cohens were liable pursuant to section 767.01 which provides that dog owners are liable for any damage caused to persons by their dog....

...xist, summary judgment is improper. Gomes; Snyder. In this case, the Walls did not meet their burden. We agree with the Walls' contention that it is not necessary to prove that the dog actually touched Mrs. Wall in order to establish liability under section 767.01....

...PARKER, Judge. Betty S. Staniszeski and Henry Staniszeski, appellants, appeal a final summary judgment entered against them and in favor of Ruth Walker and Estell Walker, appellees. We reverse. Appellants filed a complaint against appellees pursuant to sections 767.01 and 767.04, [1] Florida Statutes (1987) for damages *20 which resulted when a dog owned by appellees knocked down Mrs....

...Because this court must review any inference in the light most favorable to the nonmoving party, we are compelled to reverse. Reversed and remanded. DANAHY, A.C.J., and THREADGILL, J., concur. NOTES [1] The pertinent parts of these statutes are as follows: 767.01 Dog owner's liability for damages to persons or domestic animals....

...rs' knowledge of such viciousness . ..; 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 damage.... §§ 767.01 and 767.04, Fla. Stat. (1987). [2] This defense, found in section 767.04, is applicable to an action filed pursuant to section 767.01....

...It is possible that the trial court's conclusion is absolutely correct. Nevertheless, we think that without allowing defendant to give evidence in support of his answer, the trial court is in error. For example, though contributory negligence may not be raised as a defense under the statutes (§ 767.01 and § 767.04, the latter confined by its terms to dog "bites"), assumption of risk and proximate causation may be raised as defenses....

VAN NORTWICK, J. Keith Jordan and Lesley Jordan, defendants in a statutory liability suit filed by Terry Lee Brown and her husband, John E. Brown, Jr., appellees, pursuant to section 767.01, Florida Statutes (1995), appeal an amended final order determining that the jury verdict in their favor was against the manifest weight of the evidence and awarding the Browns a new trial....

...While at the Jordans’ home, the Jordans’ dog aggressively jumped on Mrs. Brown, causing her to fall. She finished work that day. Over the next few days Mrs. Brown saw several physicians complaining of back pain. The Browns filed an action against the Jordans seeking damages for statutory liability under section 767.01, Florida Statutes (1995)(“Owners of dogs shall be liable for any damage done by their dogs to a person....”). The Jordans acknowledged that their dog caused Mrs. Brown to fall, admitted liability under section 767.01, but denied that she suffered any injury....

...Department"); Officer Richard Keith Dorough ("Officer Dorough"), individually; and the City of Jacksonville Beach Florida (the "City"). Before the Court are: 1. Trammell's Motion for Summary Judgment on Counts I and II against the City — Fla. Stat. § 767.01 (Strict Liability) and § 767.04 (Strict Liability) (Dkt....

...g party." Id. at 1260. III. THE PENDING MOTIONS Following his release from Shands, Trammell filed suit in this Court. His Amended Complaint (Dkt. 42) contains six-counts: Counts I and II against the City for alleged violations of Fla. Stat. Sections 767.01 and 767.04 (Strict Liability); Count III against the City for Negligence; Count IV against the City pursuant to § 1983 for violations of Trammell's Fourth and Fourteenth Amendment rights to be free from unreasonable seizure and from excessive...

...§ 1983 (the "Section 1983 Claims"). Trammell's Motion (Dkt. 46) Trammell's Motion asks the Court to grant summary judgment on Counts I and II of the Amended Complaint because the City is "strictly liable for [Trammell's] damages" pursuant to Fla. Stat. Sections 767.01 and 767.04....

...Specifically, Trammell claims that "the Department's policy in regard to K-9 warning was the `moving force' behind Yacco's attack on" him. (Dkt. 62 at p. 9). IV. DISCUSSION A. The State Law Claims Counts I and II of the State Law Claims Chapter 767, Florida Statutes, governs damages caused by dogs. In particular, Section 767.01 reads as follows, "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" as provided s....

...former viciousness of the dog or the owner's knowledge of such viciousness. Trammell claims that when interpreting these statutes, courts have held that Fla. Stat. Section 767.04 makes dog owners strictly liable to any person bitten by their dog and Section 767.01 makes dog owners strictly liable to any person whom their dogs damage. (Dkt. 46 at p. 3, internal citations omitted ). Essentially, Trammell claims that the plain meaning of Fla. Stat. Sections 767.01 and 767.04 makes every law enforcement agency strictly liable to every suspect apprehended by use of a police dog....

...ability regardless of how the legal responsibility is determined. The plain language of Section 768.28 requires the Court to deny Trammell's Motion the ground that it is barred by the City's sovereign immunity. The legislative intent behind Sections 767.01 and 767.04 makes clear that the strict liability statutes Trammell references are not meant to ensnare working police dogs....

...NOTES [1] Trammell claims that because the pleadings, discovery and disclosure material establish that there is no genuine issue of fact that he was lawfully in Cooper's back yard; Yacco was owned by the City; Yacco bit him; and as a result of that bite, Trammell sustained damages, Sections 767.01 and 767.04 would seem to make the City strictly liable for Plaintiff's damages.....

...The relationship between Murphy and the dogs was disputed, but the evidence showed that the dogs were kept—except when they wandered about the neighborhood—on property owned by Murphy. The Ostrich Farm asserted a claim against Shook and Murphy under section 767.01, Florida Statutes (2000), for liability as owners of the dogs....

...ACE HUNTER, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Adrian G. Soud, Judge. September 22, 2021 B.L. THOMAS, J. Appellee sought damages under section 767.01, Florida Statutes (2017), alleging Appellant’s dog, a nine-year-old Weimaraner named Finley, caused him both physical and neurological injuries....

...onflicting or if different conclusions and inferences can be drawn from it.’” Duclos v. Richardson, 113 So. 3d 1001, 1004 (Fla. 1st DCA 2013) (quoting Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So. 2d 398, 399 (Fla. 2d DCA 1988)). Under section 767.01, dog owners are strictly liable “for any damage done by their dogs to a person.” § 767.01, Fla....

...And, in canine wont, Diamond tucked her tail and tried to run. In doing so, Diamond wrapped her leash around Ms. Culp's ankles, and Ms. Culp, an elderly lady, fell to the ground, breaking her femur and left leg. Ms. Culp filed a claim against the Parsons premised on section 767.01, Florida Statutes (2016), a statute that, in pertinent part, states "[o]wners of dogs shall be liable for any damage done by their dogs to a person." The jury returned a million-dollar verdict in Ms. Culp's favor, and the Parsons now appeal the final judgment entered against them....

...Of course, that was a Third DCA case prior to Jones versus Utica Insurance Company[, 463 So. 2d 1153 (Fla. 1985)]. . . . The Rattet court indicates that it is appropriate to do so and that comparative negligence considerations are available under a 767.01 case because they are available under a 767.[0]4 case. ....

...Parsons now bring this appeal. A. We turn first to the circuit court's decision to preclude the Parsons from presenting a comparative negligence defense. That decision stemmed from the court's construction of section 767.01 5 and the case law interpreting it, and so we review this issue de novo....

...Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla. 2010))); Champagne v. State, 269 So. 3d 629, 632 (Fla. 2d DCA 2019) ("Questions of statutory interpretation are reviewed de novo . . . ." (quoting Eustache v. State, 248 So. 3d 1097, 1100 (Fla. 2018))). Section 767.01 reads, in its entirety: "Owners of dogs shall be liable for any damage done by their dogs to a person or to any animals included in the definitions of 'domestic animal' and 'livestock' as provided by s. 585.01." Florida courts have had several occasions to interpret section 767.01 over the years, and stare decisis binds us to follow their analysis. With respect to the section we are directly concerned with, 767.01, the view of this statute's relatively succinct statement of dog owners' liability for their dogs has evolved over the years. After the statute was first enacted in 1881, the courts in Florida initially viewed the section as simply ha...

...6 high a bar to prove in many cases) so that dog owners became "insurers" for their dog's vicious acts. See Donner v. Arkwright- Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21, 23-24 (Fla. 1978) (explaining that sections 767.01 and .04 were enacted in response to the historic difficulty of proving a dog owner's scienter, which the English common law had traditionally required); Josephson v. Sweet, 173 So. 2d 463, 464 (Fla. 3d DCA 1964) ("This statute [section 767.01] has been interpreted to constitute a dog owner as an insurer for the acts of his dog. As a result, the common law requirement of establishing prior knowledge of the owner of the vicious propensity of the dog was not necessary in order to recover for injury caused by such dog." (footnote omitted)). The observation that section 767.01 made dog owners "insurers" of their dogs was likened to imposing "absolute liability" that "is not contingent upon a showing of the negligence of the owner, or scienter." See Brandeis v....

...Felcher, 211 So. 2d 606, 607 (Fla. 3d DCA 1968) (citing Knapp v. Ball, 175 So. 2d 808, 809 (Fla. 3d DCA 1965), Vandercar v. David, 96 So. 2d 227, 229 (Fla. 3d DCA 1957), and Reid v. Nelson, 154 F.2d 724, 725 (5th Cir. 1946)). Other courts construed section 767.01 as creating a form of strict 7 liability. See Allstate Ins. Co. v. Greenstein, 308 So. 2d 561, 563 (Fla. 3d DCA 1975) (affirming trial court's decision not to apply consideration of comparative negligence because "[u]nder the statutory liability created by Section 767.01, the owner of a dog is cast virtually in the role of an insurer, and he is strictly liable for damage done to persons by his dog"). A plaintiff would still need to prove causation, see Bozarth v. Barreto, 399 So....

...any aggressive or affirmative act directed against said plaintiff by the defendant’s dog"); that is, the plaintiff would have to show that the dog's acts were a legal cause of the damage the injured plaintiff claimed. The role that causation should hold under this construction of section 767.01, however, created an analytical challenge—dogs being dogs, when can it be said that a dog's acts (apart from biting) are the cause of a subsequent injury? The Florida Supreme Court provided guidance on that issue in Jones v....

...was tied to a wagon? We think not. The trial of a suit for damages should never degenerate to a battle of experts giving opinions as to whether a dog exercised canine characteristics or human characteristics. Id. at 1156. The Jones court reaffirmed that section 767.01 "is a strict liability statute" but offered a caveat about that pronouncement, as well as a new approach as to how causation ought to be viewed in these cases: We reject the view that the legislature intended strict liabi...

...affirmative act" that could be said to be a legal cause of the injury. See Cohen v. Wall, 576 So. 2d 945, 946 (Fla. 2d DCA 1991) ("[I]t is not necessary to prove that the dog actually touched Mrs. Wall in 10 order to establish liability under section 767.01....

...part of the dog, and to show that such action was the proximate cause of Mrs. Wall's injuries." (citations omitted)). B. So far the decisions we have canvassed are, like the case before us, cases that arose under section 767.01, where a dog caused injury to someone, but not by biting them....

...to Governor re Implementation of Amendment 4, the Voting Restoration Amendment, 12 288 So. 3d 1070, 1078 (Fla. 2020))); Josephson, 173 So. 2d at 465 ("It is obvious from the careful reading of the two sections that § 767.01 was superseded by § 767.04 only in regard to dog bites, because § 767.04 says 'bite' not injury. It is inconceivable that the legislature intended bite to be synonymous with injury and as inclusive."). We are, however, bound to hold otherwise because the provisions in sections 767.01 and .04 have come to be intertangled in our common law....

...Dual Security Systems, Inc., 373 So. 2d 948, 949 (Fla. 3d DCA 1979), a car dealership employee injured himself when guard dogs at the dealership's lot chased him up a fence. The plaintiff filed separate counts against the security company that provided the dogs under sections 767.01 and .04.2 2 By the time Rattet came before the Third District, the Florida Supreme Court had concluded that section 767.04 was a stand- alone, statutory cause of action that superseded any common law claim of negligence in circumstances covered by the statute....

...13 Id. at 950. The Third District disposed of the plaintiff's section 767.04 claim (because the plaintiff had not been bitten; he fell from a fence). Id. at 950. The court also affirmed the summary judgment against the plaintiff's section 767.01 claim because the dealership had posted "bad dog" signs around the lot. Id. at 950- 51. Although the posting of such signs would constitute a defense under a section 767.04 dog bite claim, the Rattet court reasoned that the statutory defenses listed under section 767.04 should also be available to a section 767.01 claim. Id. at 951. "Holding to the contrary," the court remarked, "would bring about the absurd results of (1) having proximate causation being the only defense available under Section 767.01, and (2) permitting a plaintiff to recover damages under Section 767.01 despite the fact that he or she provoked the dog or 'bad dog' signs had been properly posted." Id....

...Great Danes, who chased him up a wrought iron fence that impaled the officer’s calf. Id. Consistent with Rattet, the Third District held that the Fireman's Rule, a defense based in the common law,3 was not available to the homeowners because sections 767.01 and .04 had supplanted any common law claims or defenses....

...firefighter for injuries sustained during the discharge of the duties for which the policeman or fireman was called to the property."). 15  by statute under section 767.04 apply. We also agree that those defenses apply to a claim under section 767.01. Id. at 218 (emphasis added). Sklar's holding concerning the applicability of section 767.04 defenses to section 767.01 claims has not been modified or altered since its issuance. C. With this backdrop, we can now turn to the merits of the Parsons' argument....

...for the avoidance of liability on the ground that the plaintiff or the owner or some third party also contributed to the injury," 463 So. 2d at 1157, or Sklar's holding that the defenses of section 767.04— which now include comparative negligence—are available in a section 767.01 claim? Although the judge gave this issue careful deliberation, we believe the court erred when it deprived the Parsons of their comparative negligence defense under section 767.04. 16  Granted, Sklar did not purport to recede from Jones. But Sklar substantively altered the interplay between sections 767.01 and .04, and it did so in a way that had not been contemplated when Jones was issued....

...4th DCA 1995) ("[H]istorically, tort liability for injuries caused by dogs has evolved with its very own unique set of statutory and common law rules."). And Sklar's pronouncement was unequivocal and unqualified: the defenses of section 767.04, whatever they may be, are available to defendants in a section 767.01 claim. Comparative negligence was added to section 767.04 in 1993, some four years after Sklar, see ch....

...17 intent to otherwise alter the common law that had developed prior to the amendment's passage), we conclude that the comparative negligence defense provided under section 767.04 is available to a litigant defending against a section 767.01 claim. It is true, as Ms....

...We have to believe the Sklar court was aware of the potential linguistic awkwardness of applying the bite-related section's defenses to non-bite related claims when it adopted Rattet's rationale. Consistent with Sklar and how our sister district courts of appeal have viewed its application of sections 767.01 and .04, we hold that a defendant to a section 767.01 claim is entitled to present all the defenses, including comparative negligence, that are set forth in section 767.04. Accord Davison v. Berg, 243 So. 3d 489, 490 n.1 (Fla. 1st DCA 2018) ("The defenses found in section 767.04, which concerns dog bites, are equally applicable to 'damage' from 18 dogs as set out in section 767.01." (citing Sklar, 548 So. 2d at 218)); Associated Home Health Agency, Inc. v. Lore, 484 So. 2d 1389, 1390 (Fla. 4th DCA 1986) (citing Rattet and noting that the statutory defenses of section 767.04 applied to an action under section 767.01). Our dissenting colleague would prefer not to follow Sklar. While acknowledging that we, as a lower court, should not "lightly brush aside the contents of an opinion of the Florida Supreme Court," that is precisely what the dissent does....

...20  II. Our view of how this facet of the law has developed leads us to conclude that the circuit court properly excluded the Parsons' proffered Fabre defense. Again, the premise that sections 767.01 and .04 supplanted common law negligence claims in cases within the statutes' ambit is well settled....

...There has been no action by the 21 legislature to amend this law and we are not disposed to revisit the issue."). Only those defenses set forth under section 767.04— which, under Sklar, have become applicable to section 767.01 claims—are available to avoid the "absolute" or "strict" liability section 767.01 imposes....

...(a), Florida Statutes (2016), includes the preface, "[i]n a negligence action"—which, under Florida precedent, is not the cause of action at issue here. Thus, she argues, a third party's alleged comparative fault is not a lawful defense to her section 767.01 claim....

...29 LABRIT, J., Concurs. ATKINSON, J., Concurs in part and dissents in part. ATKINSON, J., Concurring in part and dissenting in part. I agree with the majority that, according to a proper interpretation of sections 767.04 and 767.01, Florida Statutes (2016), the statutory defenses set forth in the former—the dog-bite statute—should not apply to causes of action brought under the latter—the dog-damage statute. The majority is also correct to note that the Florida Supreme Court has pronounced that the statutory defenses in section 767.04 do apply to a claim brought under section 767.01. See Kilpatrick v. Sklar, 548 So. 2d 215, 218 (Fla. 1989). However, unlike the majority, I do not believe that the pronouncement in Sklar compels us to apply section 767.04's comparative negligence defense to causes of actions brought under section 767.01....

...ding in the case" and is "not binding on this court."). The only defense at issue in Sklar was a common law defense. The question was whether the Fireman's Rule was an available "defense for a dog owner regarding a claim for injuries under section 767.01," Sklar, 548 So. 2d at 215, and none of the statutory defenses in section 767.04 were at issue. See id. at 218 (holding that the defense did not apply to the claim because "there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04"). As such, the court's unnecessary expression of agreement "with the Third District that only those defenses provided by statute under section 767.04 apply" and "that those defenses [also] apply to a claim under section 767.01," id. (citing Rattet v....

...resolution of the issue before the court" constitutes dicta and is "not controlling judicial precedent." Cirelli v. Ent, 885 So. 2d 423, 427 (Fla. 5th DCA 2004). The statement in Sklar that the statutory defenses of section 767.04 apply to causes of action brought under section 767.01 does not have the weight of controlling precedent. While I would agree that district courts should not lightly brush aside the contents of an opinion of the Florida Supreme Court, district courts are not bound to follow those pronouncements that constitute dicta....

...contrary decision by that court should be accorded persuasive weight by us." (emphasis added) (citing Milligan v. State, 177 So. 2d 75 (Fla. 1965))). As acknowledged by the majority, the pronouncement in Sklar that the section 767.04 defenses apply to section 767.01 claims is contrary to the Florida Supreme Court's earlier Jones opinion, in which the Court held that there is no "room in this strict liability statute[, section 767.01,] for the avoidance of liability on the ground that the plaintiff or the owner or some third party also contributed to the injury." Jones v....

...3d 787, 792 (Fla. 34 2017); Barthelemy v. Safeco Ins. Co. of Illinois, 257 So. 3d 1029, 1031–32 (Fla. 4th DCA 2018). It must be noted that the holding of Jones—that comparative negligence is not available as a defense to an action based on section 767.01—was addressing the common law defense, because the statutory comparative negligence defense had not yet been added to either statute at the time the opinion was issued. However, because the statutory comparative negligence defense was added only to section 767.04, the dicta in Sklar—generally pronouncing that the defenses in section 767.04 apply to claims under section 767.01—is in irreconcilable tension with Jones's specific holding that comparative negligence is inapplicable to claims under section 767.01. The issue on appeal in Sklar had nothing to do with statutory defenses, but rather the question of whether a common law defense applied to the statutory cause of action under section 767.01. Sklar, 548 So. 2d at 215 (addressing "application of the Fireman’s Rule . . . as a defense for a dog owner regarding a claim for injuries under section 767.01"). We should not give more weight to the Sklar opinion's inessential reference to the applicability of section 767.04 defenses to section 767.01 claims 35 than we do the Florida Legislature's decision to add a comparative negligence defense only to section 767.04....

...Tandem Health Care of Fla., Inc., 899 So. 2d 369, 374 (Fla. 1st DCA 2005)). Because we should not apply the dicta in Sklar to the question of whether the comparative negligence defense in section 767.04 should be applied to cases brought under section 767.01, I would affirm the judgment of the trial court....

...the majority opinion concluding that the circuit court did not err by excluding the Parsons' comparative fault (Fabre) defense based on the products liability of a third party because such common law defenses are inapplicable to claims brought under section 767.01....

ancient “damage [done] by dogs” statute, Fla.Stat. § 767.01. We feel that the trial judge was premature in

...John Kilpatrick was chased by four Great Danes. Fleeing from the dogs, Kilpatrick tried to vault over a wrought-iron fence, became impaled on a spike, and sustained injuries to his calf. He sued appellees for damages, predicating their liability on section 767.01, Florida Statutes (1981), 1 and common law....

...Olga Ferrer] asserted, in a separate motion, that she was exonerated from statutory liability because she did not own the dogs. The trial court granted the motions, and Kilpa-trick appealed. In his appeal, Kilpatrick asserts that the trial court erred as a matter of law in entering an adverse summary judgment because section 767.01 abrogates the fireman’s rule as a defense....

...property. We agree that genuine issues of fact exist and reverse the summary judgment in favor of Sklar; we affirm, however, as to Dr. Ferrer. Chapter 767 renders dog owners strictly liable for damages or injuries to persons caused by their dogs. §§ 767.01, 767.04....

...�� § 767.04. In Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979), cause dismissed, 447 So.2d 887 (Fla.1984), this court held that the defenses available in section 767.04 are also applicable to causes of action accruing under section 767.01. Ac *1291 cordingly, in light of the interrelationship of the two statutes, and the case law interpreting section 767.04, we hold that the fireman’s rule does not protect a dog owner in a lawsuit for damages under section 767.01. Because the fireman’s rule is not a defense under sections 767.01 or 767.04, appellees may avoid liability in this case only if they prove one of the statutory defenses in section 767.04 or if they do not own the dogs....

...ent). We therefore reverse the summary judgment as to Alfred Sklar and remand the cause for further proceedings. As to Dr. Ferrer, however, the record demonstrates that she did not own the Great Danes and thus is not subject to liability pursuant to section 767.01....

...denied, 364 So.2d 894 (Fla.1978); see generally W. Prosser & W. Keeton, Torts § 61 (5th ed. 1984). We therefore affirm that portion of the summary judgment exonerating Dr. Ferrer. We find no merit in the other points. Affirmed in part; reversed in part; remanded with directions. . Section 767.01, Florida Statutes (1981), provides: Owners responsible....

PER CURIAM. The final judgment entered in favor of the defendants Ronald Barreto and his insurer Travelers Insurance Company [upon a jury verdict rendered in their favor below in an action brought under Section 767.01, Florida Statutes (1979)] is affirmed upon a holding that the trial court correctly denied the plaintiffs Evelyn Bozarth and Ralph Bozarth’s motion for a directed verdict at trial on the issue of liability....

determine whether, under the facts of this case, Section 767.01, Florida Statutes, makes Cam absolutely liable

severe, potential consequences inherent in [section 767.01],4 there is a clear burden on the plaintiff

(1983). Appellants first contend that under section 767.01, Florida Statutes (1983), the owner of a dog

...park. Three years later, Rebecca Berg’s canine companion was chasing other dogs at the park when it collided with Davison, resulting in Davison suffering a broken leg and requiring extensive medical care. Davison filed an action against Berg under section 767.01, Florida Statutes (2014), which imposes liability on dog owners for damage their dogs cause to other persons or animals....

...sufficiently warned Davison of the risks inside, and 2) Davison actually consented to, or assumed the risk of, potential injuries. We agree with Davison that the trial court erred in granting summary judgment, and reverse.  I. “Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog’s conduct.” Jones v....

...2d 21, 23 (Fla. 1978) (“[T]he Florida Legislature enacted statutes designed to obviate the element of scienter, and make the dog owner the insurer against damage done by his dog.” (footnote omitted))). The only total defense to liability available in a section 767.01 action is for a dog owner to have “displayed in a prominent place on his or her premises a sign easily readable including the words ‘Bad Dog.’” § 767.04, Fla....

...1951), overruled in part by Sweet v. Josephson, 173 So. 2d 444 (Fla. 1965) (“The sole purpose of the legend was to put one 1 The defenses found in section 767.04, which concerns dog bites, are equally applicable to “damage” from dogs as set out in section 767.01....

...2d at 129 (holding that “Beware of Dogs” sign is equivalent to “Bad Dog” sign and precludes liability). We conclude that the trial court erred in finding that the Dog Park Rules signs were sufficiently equivalent to “Bad Dog” signs to preclude liability under section 767.01. II. The trial court also found actual consent or assumption of risk on Davison’s part, noting that it was “about as strong as we could ever have.” In Kilpatrick v....

...The Florida Supreme Court held that the Fireman’s Rule—which precludes policemen and firemen from recovering from a property owner for injuries arising from their professional duties—was inapplicable, noting that “there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04, Florida Statutes (1981).” Id....

...with section 767.04. For these reasons, we reverse the trial court’s entry of final summary judgment in favor of Berg. REVERSED. RAY, BILBREY, and WINOKUR, JJ., concur. 5th DCA 1994), approved, 654 So. 2d 116 (Fla. 1995). Similarly, section 767.01 was amended in 1994 to clarify which “domestic animals” and “livestock” dog owners could be held liable for. See Ch. 94-339, § 1, at 2433, Laws of Fla. These amendments do not reflect any changes in the strict liability nature of section 767.01 or the defenses available under section 767.04, aside from permitting a broader range of a plaintiff’s conduct to be presented to juries as comparative negligence. 4  _________________...

...Defendants alleged that under 2 section 767.04, Florida Statutes (2018), the owner of a dog that bites any person while such person is on or in a public place or lawfully on or in a private place is liable for the damages suffered. They also claimed that under section 767.01, the owner of a dog is strictly liable for damages done to persons or to any animal by his dog. In May 2021, the county court held a hearing on defendant’s summary judgment motion and entered summary judgment in favor of the defendant.1 In the final judgment, the trial court stated that sections 767.01 and 767.04 are strict liability statutes....

...a matter of law in favor of the defendants. The trial court found that these two statutes prohibited Ramos’s negligence claims against both defendants. After the final judgment was entered, Ramos appealed. Among his arguments on appeal, Ramos contends that sections 767.01 and 767.04 are inapplicable in this case because neither of the defendants were actual owners of the dog that injured Ramos’s dog....

...re is no transcript. 3 760 So. 2d 126, 130 (Fla. 2000). The trial court improperly granted defendants’ motion for summary judgment because it erred with respect to the application of sections 767.04 and 767.01. Section 767.01 states, “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’ ....

...Ramos 4 alleged two counts of common law negligence in his amended complaint. His amended complaint was not based upon the strict statutory liability of a dog owner, as he did not allege a claim under either section 767.01 or section 767.04. Thus, although Ramos could have sued the owner of the attacking dog, he did not. Sections 767.01 and 767.04 are silent as to keepers or custodians of dogs, which allows for a common law negligence action against a business and business owner by a business invitee for damages sustained at the business premises....

...the owner when the posted sign bears the legend ‘Beware of Dogs’, so there is no reason for construction.” In a separate discussion, later recognized as mere obiter dictum, the Romfh court held that section 767.04 (dog bite statute) superseded section 767.01 (applicable statute where dog causes damage by other than bite)....

...3d DCA 1957), the question before the court was whether the defenses of contributory negligence and assumption of risk were available in a statutory action where a dog causes injury by other than a bite. The Vandercar court held, without addressing the question whether section 767.04 supersedes sectiop 767.01, the fact that liability is imposed by statute does not require rejection of a contributory negligence or assumption of the risk defense....

...Sweet, 173 So.2d 463 (Fla. 3d DCA 1964) that the Romfh court unnecessarily held that section 767.04 superseded section 767.-01. Later, the supreme court agreed and expressly receded from the Romfh obiter dictum; it held that section 767.04 supersedes section 767.01 only where the dog-caused injury is the result of a bite....

...Josephson, 173 So.2d 444 (Fla.1965). Again in Knapp v. Ball, 175 So.2d 808 (Fla. 3d DCA 1965), the question before this court was whether there were triable issues as to assumption of risk and contributory negligence in an action brought pursuant to section 767.01 for a non-bite, dog-caused injury....

228. The court then went on to distinguish Section 767.01 from Section 767.04, noting that the latter