R. E. RUTLAND, JR., APPELLANT,
v.
EVAH E. BIEL, APPELLEE
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In this interlocutory appeal, the Florida District Court of Appeal reversed a summary judgment finding a dog owner absolutely liable for injuries caused when a guest tripped over the dog. The court held that assumption of risk is a viable defense and that Florida's dog liability statute does not apply when the dog takes no affirmative or aggressive action toward the injured party.
The court held that (1) there was a genuine issue of material fact regarding assumption of risk because Biel saw the dog before taking the step backward that caused her to trip, precluding summary judgment; and (2) Florida Statute § 767.01 does not apply when the dog takes no affirmative or aggressive action toward the injured party.
[1] A dog owner's liability under F.S. …
[2] A genuine issue of material fact exists regarding liability when the injured party admits seeing the dog before stepping backward and tripping over it.
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Establishes that despite absolute liability, dog owners have available defenses including assumption of risk
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Join FLexlaw to unlock all legal intelligenceBiel, a 76-year-old woman, attended a church function at appellant Rutland's home. While viewing an aquarium in the living room, she heard a dog yelp.…
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(Ret.).
This is an interlocutory appeal from a partial summary judgment as to liability in favor of appellee Biel against one of the defendants, Rutland.
Biel filed suit against appellant Rutland and Skycrest Methodist Church, Inc. for damages as a result of injuries she received while attending a church function in Pastor Rutland’s home. After motions, answers, affirmative defenses, interrogatories and depositions had been filed, the lower Court granted Biel’s motion for summary judgment as to liability against Rutland.
Biel, a 76 year old woman, attended a church function in the home of appellant Rutland, Minister of the 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. has been held to be an absolute liability as an insurer, Reid v. Nelson, Sth Cir. 1956, 154 F.2d 724; Knapp v. Ball, Fla.App.1965, 175 So. 2d 808; Brandeis v. Felcher, Fla.App.1968, 211 So.2d 606, assumption of risk and proximate causation are permissible as defenses; Vandercar v. David, Fla.App.1957, 96 So.2d 227; Knapp v. Ball, supra; Brandeis v. Felcher, supra; English v. Seachord, Fla.App.1971, 243 So.2d 193.
Biel contends that there can be no assumption of risk without knowledge of risk, and since she had no knowledge of the presence of the dog in the living room before the accident, the lower court was correct in holding that there was no genuine issue as to any material fact concerning the issue of liability. However, Biel admitted that she must have been stepping on the dog or on his hair, causing him to yelp. She looked down “just a little bit to my side, back of me . . . and saw *809him.” When she saw him she took a step backward and tripped over the dog. 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. is not applicable to a situation where the dog takes no affirmative or aggressive action toward the injured party. In all the cases we have reviewed under this statute, the dog has acted aggressively.
Reversed and remanded for further proceedings consistent herewith.
HOBSON, Acting C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Sol Brandeis and Lona Brandeis v. Felcher, 211 So. 2d 606 (Fla. 3d DCA 1968)
- Reid v. Nelson, 154 F.2d 724 (5th Cir. 1946)
- English v. Seachord, 243 So. 2d 193 (Fla. 4th DCA 1971)
- Al Goldstein v. Stone, 96 So. 2d 227 (Fla. 3d DCA 1957)
- Vandercar v. David, 96 So. 2d 227 (Fla. 3d DCA 1957)
- Harrell v. Sanders, 175 So. 2d 808 (Fla. 2d DCA 1965)
- Nell Lane Knapp v. Lygia L. Ball, 175 So. 2d 808 (Fla. 3d DCA 1965)