by Phyllis Coleman
Florida recently recorded the highest average amount ($38,400) per dog bite insurance claim in the country, with 146 payments totaling $5.6 million.1 While the number of claims nationwide vacillates, the average value of each has climbed higher every year with the aggregate topping $489.7 million in 2012.2 This article provides a springboard into this dynamic area of law, explaining the general legal principles involved and alerting practitioners to potential pitfalls in the Florida statutes and case law.3
Experts estimate that, in one year, dogs bite more than 4.7 million people in the United States. While the numbers vary, approximately 50 percent to 72 percent of the victims are children.4 The elderly, at around 20 percent, account for the next largest group. Annually, about 800,000 bites require emergency medical treatment.5 Roughly 16, or only about 0.0002 percent of the total bites, are fatal.6 Of the reported 78.2 million pet dogs living in 46.3 million U.S. homes in 2012,7 approximately 11.15 million resided in Florida.8 Based on these numbers, a relatively recent report states that “[e]very year more than 500 Florida residents are bitten severely enough to require hospitalization, and on average two Floridians die due to injuries sustained from bites by dogs.”9
Common Law to Strict Liability
English courts created the “one bite rule” several hundred years ago, based on the theory that an individual should be responsible for the damages his or her dog caused.10 Liability was premised on the guardian’s11 scienter, or knowledge, that his or her animal was dangerous.12 Consequently, to recover, the plaintiff had to prove that 1) the guardian owned the dog; 2) the animal was dangerous; 3) the guardian knew of his or her dog’s propensities because the dog had previously bitten someone else under similar circumstances; and 4) the victim was injured. The guardian could raise the defenses that the victim “provoked” the dog or was unlawfully on the owner’s property.
This standard sometimes allowed guardians to escape responsibility unfairly because the injured person could not prove the dog was dangerous or that the guardian knew about the animal’s predilection for violence.13 A Georgia judge explained the theory’s primary flaw: “A dog should have no greater right to a first bite than one has to a first murder. And as between the dog owner and a blameless victim, the owner is almost certainly in the better position to judge the dog’s proclivity to bite.”14 Thus, the common law rule was problematic because the victim of an animal’s first attack had no recourse and the dog’s guardian had “little incentive to guard against this potentially deadly event.”15
The Florida Legislature created Ch. 767 in the 1890s. Dissatisfaction with the common law rule led to the enactment of F.S. §767.04, the dog bite provision, in 1949.16 From its inception, this provision imposed strict liability, removing the need for victims to prove the “former viciousness of the dog or the owners’ knowledge of such viciousness.” Lawmakers served notice that guardians were absolutely responsible for damages their dogs inflicted by biting. Nevertheless, the original enactment allowed a guardian to avoid financial accountability if 1) the person bitten “mischievously or carelessly provoke[d] or aggravate[d] the dog,” or 2) “the owner had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog.’”17
In 1993, this section was revised in three significant ways. First, lawmakers struck the protection based on provocation. Second, they added a comparative negligence provision. While the statute still provides for strict liability, “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.”18 As a result, the Fifth District, in Huie v. Wipperfurth, 632 So. 2d 1109 (Fla. 5th DCA 1994), remarked that comparative negligence “replac[ed] the defense of provocation.”19
The third noteworthy modification was including a statement that strict liability “is in addition to and cumulative with any other remedy provided by statute or common law.”20 This is important because cases interpreting the earlier version of the law determined exactly the opposite — that §767.04 was the exclusive means of recovery where the statute applied.21 Legislators disagreed and, as a result, now dog bite victims in Florida can bring not only an action under the statute, but they can also bring common law claims, including negligence,22 negligence per se, and intentional tort.23
Unfortunately, these amendments make it difficult to look to court decisions to interpret the statute. Thus, some early cases have limited or no precedential value.24 Nevertheless, opinions applying the “new” language, and those addressing issues that were not altered, provide guidance about what to consider in dog bite litigation under §767.04.
• Ownership — Section 767.04 is explicitly limited to “[t]he owner of any dog that bites any person.”25 In view of that, in Belcher Yacht, Inc. v. Stickney, 450 So. 2d 1111 (Fla. 1984), the Florida Supreme Court held this provision “pertains only to the owner” of the animal who actually caused the injury by biting plaintiff.26 In fact, the opinion contrasts this language with §767.05 that “specifically refers to ‘an owner or keeper of any dog.’”27
But, in 1990, §767.11(7) was added. It defined an “owner” as “any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal.”28 In Wipperfurth v. Huie, 654 So. 2d 116 (Fla. 1995), the Florida Supreme Court refused to address this change because the incident took place prior to its effective date. Thus, the justices determined a “kennel owner or veterinarian undertaking care, custody, and control of a dog” pursuant to an agreement with the animal’s guardian was not a “dog owner.”29 Notably, no later Florida cases cite Wipperfurth30 or even discuss the “new” statutory language.31
• Lawfully on the Property — The statutory language imposes strict liability on the dog’s guardian if the victim is “on or in a public place, or lawfully on or in a private place”32 when the bite occurs. In other words, those who are illegally on the premises (including the guardian’s property) where they were bitten cannot recover for their injuries.33 A person “on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner” is there legally.34 So, in Paskel v. Higgins, 337 So. 2d 416 (Fla. 4th DCA 1976), the Fourth District reversed summary judgment in favor of the plaintiffs because they failed to meet their burden of showing that when the bite occurred, the minor victim was on defendants’ property “‘upon invitation, expressed or implied, of the owner.’”
Although the Florida Supreme Court once remarked that it could “easily envision situations where a jury might be called upon to decide whether the victim was lawfully on the land,”35 in truth, this issue is rarely addressed.36
• Posting a “Bad Dog” Sign — Florida appears to be unique in allowing a dog’s guardian to escape strict liability by posting a sign that includes the phrase “bad dog.”37 But merely displaying a sign does not ensure the dog owner will avoid liability. Kaiser v. Baley, 474 So. 2d 906 (Fla. 5th DCA 1985), for example, established that whether the warning is adequate is a jury question. In that case, it was not clear whether a bad dog sign within a fence was adequate to warn a mail carrier of danger outside the enclosure. The Fifth District required the jury be given the opportunity to decide that issue.38
Moreover, “(n)ot every sign, even if seen, is sufficient to put a potential victim on notice of the risk he [or she] assumes by being on the premises,” according to Carroll v. Moxley, 241 So. 2d 681, 683 (Fla. 1970). In fact, early on, in Romfh v. Berman, 56 So. 2d 127 (Fla. 1951), the Florida Supreme Court faced the issue of whether it was necessary to use the specific words “bad dog” to satisfy the statutory requirement. The majority concluded “[t]he sole purpose of the legend 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.’”39
In Registe v. Porter, 557 So. 2d 214 (Fla. 2d DCA 1990), the evidence “clearly and irrefutably established” that four “bad dog” signs were visible on the property. But the adult dog bite victim spoke and read only Creole French. Thus, the issue became whether protection from liability arose when the victim could not actually read and understand the sign.40 The Second District concluded the statutory requirement that a sign be “easily readable” meant it should be “legible” and “capable of being read.” The law does not require “any possible victim of a dog-bite be ‘capable of reading’ the sign.”41
However, because young children typically cannot read, the legislature explicitly provided that posting a sign did not shield a dog’s guardian from liability when the victim is “under the age of 6.”42 Notably, even before this rule was codified, the Fifth District in Flick v. Malino, 374 So. 2d 89 (Fla. 5th DCA 1979), had come to the same conclusion in a case involving a three-year-old dog bite victim.43
It is also important to recognize that a property owner may be estopped from relying on a bad dog sign when he or she has assured a visitor that he or she may ignore the sign. In Noble v. Yorke, 490 So. 2d 29 (Fla. 1996), the sign “was in strict compliance” with the law, but the defendants were held liable because “‘as a matter of law, a dog owner who tells a victim to ignore the ‘[b]ad [d]og’ sign…has not provided the genuine, effective and bona fide notice required by the statute.’”44 The Third District reached a similar result in Freire v. Leon, 584 So. 2d 98 (Fla. 3d DCA 1991).
• Contributory Negligence — Long before 1993 when Florida lawmakers added the provision “reduc[ing] the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident,” the Florida Supreme Court speculated that the legislature intended that if a person “disregards the sign and enters the premises he is guilty of contributory negligence and assumes the risk.”45 In fact, not long after passage of §767.04, the Third District, in Vandercar v. David, 96 So. 2d 227 (Fla. 3d DCA 1957), seemed to support the applicability of both defenses: “[I]f an injured party unnecessarily and voluntarily puts himself in the way to be hurt, knowing the probable consequences, he may be deemed to have assumed the risk and to have induced his injury.” But the majority in Donner v. Arkwright-Boston Manufacturers Mutual Ins. Co., 358 So. 2d 21 (Fla. 1978), stated that assumption of the risk was never a “favored defense”46 and had actually “merged with the doctrine of comparative negligence.”47 It noted that the legislature apparently thought that if a person kicked, teased, or provoked the dog, he or she should not be compensated for an injury.48 Arguably, therefore, although provocation was eliminated as an affirmative defense under §767.04 in 1993, the general concept may be included in the comparative negligence analysis that was added at that time.49
Homeowners’ insurance often provides coverage for dog bites — in fact, this type of claim represents more than one-third of all homeowners’ liability payouts.50 This means that lawyers litigating such cases should investigate the guardian’s insurance coverage. Predictably, the Fifth District, in examining a homeowner’s policy that contained “per occurrence” limitations, construed the “ambiguous provisions” against the insurer. Consequently, “each separate dog bite that resulted in a separate injury to a separate victim was a separate occurrence.”51
Some policies specifically exclude coverage for injuries caused by dogs. In American Strategic Ins. Co. v. Lucas-Solomon, 927 So. 2d 184 (Fla. 2d DCA 2006), for example, the Second District upheld such an exception. The trial judge’s finding that a nine-year-old “owned and kept” the dog separate from the ownership of her parents granted the daughter more coverage than the policy gave her mother and father, the named insureds. “We cannot conclude that such coverage was the intent of the parties based on the understanding of the words used in the policy from the perspective of an ordinary person.”52
It appears likely that the trend of plaintiffs filing increasingly expensive claims for dog bite injuries will continue. Because of the uncertainty and complexities of the dog bite statute, as well as its interaction with common law actions, parties on both sides need representation, providing numerous opportunities for attorneys to expand their practices while helping human and nonhuman animals.
1 Damian Dovarganes, State Farm Pays $109 Million for Dog Bite Claims, USA Today, May 17, 2012, available at http://usatoday30.usatoday.com/news/nation/story/2012-05-17/dog-bite-insurance-claims/55037444/1. Florida has placed among the top 10 for the last few years.
2 Brad Tuttle, Dog Bites Insurance Companies: Man’s Best Friend Behind One-Third of All Homeowner Claims, Time, May 28, 2013, available at http://business.time.com/2013/05/28/dog-bites-insurance-companies-mans-best-friend-behind-one-third-of-all-homeowner-claims (explaining an “average dog bite claim payout rose from $19,162 in 2003 to $29,752 in 2012, an increase of 55 percent”).
3 It is also essential to check local ordinances, many of which also address dog bites and “dangerous dogs.”
4 Centers for Disease Control and Prevention, Dog Bites, http://www.cdc.gov/homeandrecreationalsafety/dog-bites/index.html.
7 American Pet Products Ass’n, Pet Industry Market Size & Ownership Statistics, http://www.americanpetproducts.org/press_industrytrends.asp.
8 In 2012, Florida’s population was 19,317,568 according to the Census Bureau. The number of dogs is calculated using a formula created by the American Veterinary Medicine Association (AVMA).
9 Danielle Stanek et al., Dog Bites, available at http://www.floridahealth.gov/prevention-safety-and-wellness/dog-bite-prevention/_documents/dogbites-fl.pdf#search=“stanek dog bites”.
10 Kenneth M. Phillips, The History of the “One Bite Rule,” http://dogbitelaw.com/one-bite-rule/history-of-the-one-bite-rule.html.
11 Calling owners “guardians” recognizes a trend toward considering animals as more than property. Similarly, this article uses “who” when referring to dogs, to highlight that, although legally treated as property, they are much more important and valuable than inanimate items.
12 Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21, 23 (Fla. 1978) (citing Smith v. Pelah, 93 Eng. Rep. 1171 (1747)).
13 Victor E. Schwartz & Emily J. Laird, Non-economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule, 33 Pepp. L. Rev. 227, 233 (Jan. 2006).
14 Clark v. Joiner, 530 S.E.2d 45, 48 (Ga. Ct. App. 2000) (Ruffin, J., concurring).
16 1949 Fla. Sess. Law Serv. c. 25109, §1.
17 Fla. Stat. §767.04 (1949).
18 Fla. Stat. §767.04 (2012).
19 Huie, 632 So. 2d 1109, rev. granted Wipperfurth v. Huie, 645 So. 2d 456 (Fla. 1994), and approved by 654 So. 2d 116 (Fla. 1995).
20 Fla. Stat. §767.04.
21 See, e.g., Belcher Yacht, Inc. v. Stickney, 450 So. 2d 1111 (Fla. 1984); Carroll v. Moxley, 241 So. 2d 681 (Fla. 1970) (holding §767.04 superseded common law in cases where the statute applies).
22 Sutherland v. Pell, 738 So. 2d 1016 (Fla. 2d DCA 1999).
23 Kenneth M. Phillips, Florida Dog Bite Law, http://dogbitelaw.com/statutory-strict-liability-state/florida-dog-bite-law.html.
24 There were also minor tweaks in language that do not undermine the opinions.
25 Fla. Stat. §767.04. Actions against a nonowner are possible on a theory of common law liability. Tran v. Bancroft, 648 So. 2d 314, 316 (Fla. 4th DCA 1995). However, they are beyond the scope of this article.
26 Belcher, 450 So. 2d at 1112.
27 Id. at 1112 n.2 (emphasis added).
28 Fla. Stat. §767.11(7) (1990) (emphasis added).
29 Wipperfurth, 654 So. 2d at 118.
30 A 1996 Wisconsin decision is the only case that discussed Wipperfurth, but that court declined to follow it on state law grounds. To strengthen its conclusion, the judge pointed out that even the justices in Wipperfurth implied the result might have been different had the amendment applied. Armstrong v. Milwaukee Mut. Ins. Co., 549 N.W.2d 723, 729 (Wis. 1996).
31 Cf. Nowlin v. State, 50 So. 3d 79, 82 (Fla. 1st DCA 2010) (stating that an owner must be an adult, but, as the issue in the case concerned child neglect rather than the dog bite, not discussing the statutory language).
32 Fla. Stat. §767.04.
33 Lynn A. Epstein, There Are No Bad Dogs, Only Bad Owners: Replacing Strict Liability with a Negligence Standard in Dog Bite Cases, 13 Animal L. 129, 134 n.48 (2006) (noting that a possible defense to strict liability is that plaintiff was trespassing).
34 Fla. Stat. §767.04.
35 Belcher, 450 So. 2d at 1113.
36 Flick v. Malino, 374 So. 2d 89, 90 (Fla. 5th DCA 1979) (stating the pleadings apparently “raise[d] a factual dispute as to whether the victim and her mother had been invited prior to the dog bite,” but the Fifth District simply “note[d] in passing” that the statute required she was on the premises “lawfully”).
37 Kenneth M. Phillips, “Bad Dog” Exception to Statutory Liability, http://dogbitelaw.com/florida/the-bad-dog-exception-to-statutory-liability-in-florida.html.
38 Kaiser, 474 So. 2d 906, 907 (Fla. 5th DCA 1985).
39 Romfh, 56 So. 2d at 129.
40 Registe, 557 So. 2d at 215.
41 Id. at 216 (quoting Carroll v. Moxley, 241 So. 2d 681, 683 (Fla. 1970)).
42 Fla. Stat. §767.04 (emphasis added). See also Swindell v. Hellkamp, 242 So. 2d 708, 710 (Fla. 1970) (explaining under common law, “a child under seven is conclusively presumed to be incapable of committing a crime” and holding “any child under six years of age is conclusively presumed to be incapable of committing contributory negligence”).
43 Flick, 374 So. 2d at 90.
44 Noble, 490 So. 2d at 31 (quoting Carroll, 241 So. 2d at 683).
45 Romfh, 56 So. 2d at 129 (emphasis added).
46 Donner, 358 So. 2d 21, 22 (Fla. 1978).
47 Id. at 23.
49 Marc A. Wites, Florida Causes of Action, §2-150.4(1) at 2-58 (2008).
50 Brad Tuttle, Dog Bites Insurance Companies: Man’s Best Friend Behind One-Third of All Homeowner Claims, Time, May 28, 2013, available at http://business.time.com/2013/05/28/dog-bites-insurance-companies-mans-best-friend-behind-one-third-of-all-homeowner-claims.
51 Maddox v. Florida Farm Bureau Gen., 129 So. 3d 1179, 1180-82 (Fla. 5th DCA 2014).
52 American Strategic Ins. Co., 927 So. 2d at 186-187.
Phyllis Coleman is a professor of law at Nova Southeastern University. She received her law degree and a master’s in education from the University of Florida, both with high honors. She is a founding member of The Florida Bar’s Animal Law Committee, and teaches two animal law courses at NSU.