DAVID PARSONS AND MARLA PARSONS v. PATRICIA CULP ( 2021 )


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  •             DISTRICT COURT OF APPEAL OF FLORIDA
    SECOND DISTRICT
    DAVID PARSONS and MARLA PARSONS,
    Appellants,
    v.
    PATRICIA CULP,
    Appellee.
    No. 2D20-600
    September 17, 2021
    Appeal from the Circuit Court for Highlands County; David V.
    Ward, Judge.
    Jennifer J. Kennedy of Abbey, Adams, Byelick, & Mueller, L.L.P.,
    Saint Petersburg, for Appellants.
    Thomas E. Mooney of Mooney Colvin, P.L., Orlando, for Appellee.
    LUCAS, Judge.
    One March morning in 2016, David and Marla Parsons'
    Boston Terrier, Bogey, escaped from his tether in the Parsons'
    backyard, chased some egrets, and ran around a nearby dumpster.
    Unfortunately, Bogey's escapade coincided with the daily walk
    Patricia Culp enjoyed with her Havanese-Maltese, Diamond. As
    dogs are wont to do, Bogey ran towards Diamond. 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. The Parsons claim several errors with the
    circuit court's trial rulings, which we will address in the order of
    how we view their precedence.
    I.
    Throughout the proceedings leading up to the trial, the
    Parsons sought to avoid liability for Bogey's actions by ascribing
    liability to Ms. Culp as well as to the manufacturer or retail seller of
    Bogey's collar. With respect to Ms. Culp, the Parsons claimed she
    was comparatively negligent for her accident for a variety of
    2
    reasons: when she first noticed Bogey running loose, she drew
    closer to the dumpster to gain a better view despite knowing
    Diamond did not socialize well with other dogs; when Bogey ran
    towards her and Diamond she did not pick up her dog (which
    weighed approximately nine pounds); or alternatively, she did not
    shorten Diamond's training leash as she had learned during
    Diamond's obedience training. As to Bogey's collar, the Parsons
    sought to include the retail store they had purchased the collar
    from as a Fabre defendant1 and proffered the testimony of a
    mechanical engineering expert, who would have opined that the
    collar broke because of defective manufacturing.
    Before the trial commenced, the circuit court appeared
    receptive to allowing these defenses to proceed. However, on the
    morning of jury selection, the court granted Ms. Culp's motion in
    limine and denied the Parsons' motion for leave to amend their
    1  See Fabre v. Marin, 
    623 So. 2d 1182
    , 1187 (Fla. 1993)
    (holding that apportionment of comparative fault is not limited to
    parties to a lawsuit), receded from in part on other grounds by Wells
    v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 
    659 So. 2d 249
     (Fla.
    1995); Salazar v. Helicopter Structural & Maint., Inc., 
    986 So. 2d 620
    , 622 n.1 (Fla. 2d DCA 2007) ("A 'Fabre defendant' is a nonparty
    defendant whom a party defendant asserts is wholly or partially
    responsible for the negligence alleged.").
    3
    answer (as well as their requested jury instruction), stating, "The
    Defendants' affirmative defense products liability to an unknown
    company will not be allowed. . . . So any affirmative defense as far
    as products liability to Petco and/or a unknown company . . . for
    defective manufacturer is disallowed and that's not going to
    happen."
    With respect to the comparative negligence defense, on the
    fourth day of the trial the presiding judge issued his ruling that the
    Parsons could not seek to hold Ms. Culp's alleged negligence
    against her. As the court explained:
    I don't see where the Court can legally infuse
    comparative negligence into a strict liability case. Now, I
    understand the defense argument that it's allowed by
    Rattet[ v. Dual Security Systems, Inc., 
    373 So. 2d 948
    (Fla. 3d DCA 1979)]. 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.
    . . . Jones has made clear, and the plaintiff has
    continuously argued this, that there's not room in a strict
    liability statute for the avoidance of liability on the
    grounds of the plaintiff or the owner or some other third
    party also contributed to the injury, contributory or
    comparative negligence. . . . [B]ut I am not going to allow
    for a comparative causation determination by the jury.
    Causation is an all-or-nothing proposition. If the plaintiff
    4
    proves that the defendants' dog acted and that act was
    the cause of her injury and that act can be concurring
    with another act so long as . . . the defendants' acts
    through their dog, so long as the acts of the affirmative or
    aggressive act by the defendants' dog contributes
    substantially to producing such injury that concurring
    cause can't happen, that doesn't [alleviate] the defendant
    of liability.
    The court did allow an intervening cause instruction. But as the
    court made clear, Ms. Culp's conduct would only be considered as it
    pertained to causation of her injuries, not as it pertained to
    comparative negligence. The verdict form the court ultimately used
    asked the jury if there was "an affirmative or aggressive act by the
    Parsons' dog which was a legal cause of loss, injury, or damage to
    the Plaintiff, Patricia Culp?"
    The jury having answered that question in the affirmative, and
    the circuit court having entered a judgment on that verdict after
    denying the Parsons' motion for new trial and for remittitur, the
    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. See Van v. Schmidt, 
    122 So. 3d 243
    , 252 (Fla. 2013)
    (applying de novo review to a pure question of law (citing Bosem v.
    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 having removed the
    common law requirement of the owner's scienter or knowledge of
    his or her dog's vicious propensities (which, apparently, proved too
    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. 2d 370
    , 370-71 (Fla. 3d DCA 1981) (affirming final
    judgment in favor of defendants where "there was . . . sufficient
    evidence in the record for the jury to conclude, as it did, that the
    plaintiff Evelyn Bozarth's injuries were not proximately caused by
    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. Utica Mutual Insurance Co., 
    463 So. 2d 1153
     (Fla. 1985).
    8
    In Jones, a twelve-year-old boy was injured by a wagon that was
    being pulled by a German Shepherd that was, in turn, chasing after
    another dog. 
    Id. at 1155
    . The Florida Supreme Court rejected a
    district court of appeal's canine-classification approach to the
    causation query by posing some interesting questions:
    How is one to determine whether or not an animal's
    behavior is sufficiently active, or canine, or dispositive of
    the outcome, so as to render the owner liable for its
    conduct? When does a dog exercise canine
    characteristics? There is simply no way to define or
    administer such a standard and the parties would be at a
    loss to evaluate when a dog can be found not to have
    acted like a dog. Is it meaningful to conclude the dog in
    this case was exhibiting canine characteristics when it
    chased another dog 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.
    
    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
    liability for dog owners in every instance where the
    actions of a dog are a factor in an injury. Clearly the
    rules of ordinary causation should apply. Thus, an
    9
    affirmative or aggressive act by the dog is required. This
    "affirmative act" requirement is a reasonable safeguard
    insofar as it forbids the imposition of liability in cases in
    which the animal is merely a passive instrumentality in a
    chain of events leading to injury. Even a strict liability
    statute should not reach that far. This interpretation is
    consistent with the general notion of proximate
    causation, since other factors would constitute
    superceding or overwhelming causes when the dog is
    merely passive or retreating.
    Thus, it also cannot be said that liability is only
    appropriate when the animal actually touches the
    plaintiff, for animals and people can cause injuries in a
    variety of ways without actually touching the injured
    party. Nor is there room in this strict liability statute for
    the avoidance of liability on the ground that the plaintiff
    or the owner or some third party also contributed to the
    injury. 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.
    
    Id. at 1156-57
    .
    The Jones formulary for causation has continued along in
    Florida jurisprudence without substantial modification. A dog
    owner is virtually an insurer and liable for a non-bite related injury
    his or her dog causes if the dog displayed some "aggressive or
    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. It is, however,
    necessary to establish an affirmative or aggressive action on the
    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. Section 767.04
    is a separate statute, entitled "Dog owner's liability for damages to
    persons bitten." This section states:
    The owner of any dog that bites any person while
    such person is on or in a public place, or lawfully on or
    in a private place, including the property of the owner of
    the dog, is liable for damages suffered by persons bitten,
    regardless of the former viciousness of the dog or the
    owners' knowledge of such viciousness. However, 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. A person is lawfully upon private property of
    such owner within the meaning of this act when the
    person is 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. However, the owner
    is not liable, except as to a person under the age of 6, or
    unless the damages are proximately caused by a
    11
    negligent act or omission of the owner, if at the time of
    any such injury the owner had displayed in a prominent
    place on his or her premises a sign easily readable
    including the words "Bad Dog." The remedy provided by
    this section is in addition to and cumulative with any
    other remedy provided by statute or common law.
    Whatever else he may have done during his escape from the
    Parsons' backyard, Bogey never bit Ms. Culp. Her injuries were the
    result of a fall, not a bite. If this were a matter of first impression,
    we would hold that section 767.04, and the bite-related defenses it
    includes, is simply inapplicable to this case. Cf. Ham v. Portfolio
    Recovery Assocs., LLC, 
    308 So. 3d 942
    , 946-47 (Fla. 2020) ("In
    interpreting the statute, we follow the 'supremacy-of-text
    principle'—namely, the principle that '[t]he words of a governing text
    are of paramount concern, and what they convey, in their context,
    is what the text means[]' . . . [and] that 'every word employed in [a
    legal text] is to be expounded in its plain, obvious, and common
    sense, unless the context furnishes some ground to control, qualify,
    or enlarge it.' " (first and fourth alteration in original) (first quoting
    Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
    of Legal Texts 56 (2012); then quoting Advisory Op. 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. In Rattet v. 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. See
    Donner, 
    358 So. 2d at 24
     ("[W]e can only conclude that in making
    the dog owner the insurer against damage done by his dog, thereby
    supplanting the common law negligence-type action, the legislature
    intended to shoulder him with the burden of his animal's acts
    except in the specific instances articulated in the enactment where
    the dog is provoked or aggravated or the victim is specifically
    warned by a sign."); Carroll v. Moxley, 
    241 So. 2d 681
    , 682 (Fla.
    1970) ("The contention that Plaintiffs have a cause of action both
    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. (footnote omitted). And that "would violate the well established
    principle that statutes must not be construed so as to produce
    under Fla.Stat. s 767.04, F.S.A., and the common law is without
    merit. . . . It is concluded that Fla.Stat. s 767.04, F.S.A.,
    supersedes the common law, only in those situations covered by the
    statute.").
    14
    unreasonable or ridiculous consequences." Id. (citing 30 Fla. Jur.
    Statutes § 122 (1974)).
    A decade after Rattet, the Florida Supreme Court addressed a
    similar claim when a police officer was injured while investigating a
    possible house burglary. See Kilpatrick v. Sklar, 
    548 So. 2d 215
    ,
    216 (Fla. 1989). In trying to sneak up on the burglar in the
    backyard, the officer drew the attention of the homeowner's four
    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. 
    Id.
     The
    Florida Supreme Court agreed, approved the district court's
    decision, and adopted Rattet's rule in its entirety:
    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 761.01
    and 767.04, Florida Statutes (1981). . . . We also agree
    with the Third District that only those defenses provided
    3  See Rishel v. E. Airlines, Inc., 
    466 So. 2d 1136
    , 1138 (Fla. 3d
    DCA 1985) ("The fireman's rule, as generally framed, provides that
    an owner or occupant of property is not liable to a police officer or a
    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. We do so by first acknowledging that the
    circuit judge below faced a dilemma: should the court apply Jones'
    pronouncement, "[n]or is there room in this strict liability statute
    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. It was, in short, an evolution in the
    common law. Cf. Tran v. Bankcroft, 
    648 So. 2d 314
    , 316 (Fla. 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. 93–13, § 1, at 117, Laws of Fla.,
    and it is ordinarily assumed that the legislature is aware of the
    state of the common law when it enacts or amends a statute. Cf.
    Baskerville-Donovan Eng'rs, Inc. v. Pensacola Exec. House Condo.
    Ass'n, 
    581 So. 2d 1301
    , 1303 (Fla. 1991) ("[S]tatutes should be
    construed with reference to the common law, and we must presume
    that the legislature would specify any innovation upon the common
    law." (citing Ellis v. Brown, 
    77 So. 2d 845
    , 847 (Fla. 1955))). In line
    with Sklar (and in the absence of a legislative pronouncement of
    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. Culp points out, section 767.04's defense of
    comparative fault, like the other defenses in that section, speaks in
    terms of "persons bitten" and "dog bites," which, under an ordinary,
    plain meaning of the section's text would not seem applicable to
    this case. Section 767.04 has always been rife with references to
    dog bites. That was equally true when the Florida Supreme Court
    decided Sklar. 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. For if
    pronouncements such as those in Sklar can be waved away as dicta
    by an inferior tribunal, we may find ourselves having to frequently
    repeat our own holdings lest the trial courts creatively construe out
    of existence any of our legal rules with which they may not agree.
    That is not how our system of judicial review should work. As a
    lower court, we must leave it to the Florida Supreme Court to clarify
    or recede from what it pronounced in Sklar, should it ever choose to
    do so. See Hoffman v. Jones, 
    280 So. 2d 431
    , 434 (Fla. 1973) ("To
    allow a District Court of Appeal to overrule controlling precedent of
    19
    this Court would be to create chaos and uncertainty in the judicial
    forum, particularly at the trial level.").4
    4  Ironically, Lewis v. State, 
    34 So. 3d 183
    , 186 (Fla. 1st DCA
    2010), a case cited by the dissent for the proposition that we can
    bypass unequivocal legal pronouncements from the Florida
    Supreme Court so long as we construe them as "dicta" actually
    illustrates why we should be circumspect about what we append
    the "dicta" label to, if one follows the course of the issue in Lewis to
    its conclusion. In Lewis, the First District determined that the
    Florida Supreme Court's statement in Brooks v. State, 
    918 So. 2d 181
     (Fla. 2005), "that aggravated child abuse cannot serve as the
    underlying felony in a felony murder charge if only a single act led
    to the child's death was not a holding in the case," because the
    Brooks court ultimately affirmed the defendant's conviction. 
    Id. at 186
    . Brooks' pronouncement about felony murder based on
    aggravated child abuse was "immaterial to the outcome of the case,"
    the First District opined, and so the court did not feel compelled to
    follow the rule announced in Brooks (though the Lewis opinion did
    go on to provide an alternate rationale in case the statement in
    Brooks was not dicta).
    Two years after Lewis, the Florida Supreme Court issued State
    v. Sturdivant, 
    94 So. 3d 434
     (Fla. 2012). Sturdivant devoted a
    substantial amount of analysis explaining why what the Lewis
    court had dismissed as "dicta," was, in fact, a wrongly decided
    holding—which the court then receded from. 
    Id. at 440-42
    . "In
    light of the nature of the merger doctrine and the plain language of
    the Florida felony-murder statute, we agree with Justice Lewis's
    dissent in Brooks that the holding was contrary to the plain
    language of the statute and legislative intent." 
    Id. at 441
    . Nowhere
    in Sturdivant did the court suggest its prior statement in Brooks
    had been dicta. To the contrary, what the district court of appeal
    had deemed dicta of the Florida Supreme Court, the Florida
    Supreme Court held was an erroneous holding.
    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. See Sklar, 
    548 So. 2d at 218
    ;
    Donner, 
    358 So. 2d at 23-24
    ; Carroll, 
    241 So. 2d at 682
    ; Huie v.
    Wipperfurth, 
    632 So. 2d 1109
    , 1111 (Fla. 5th DCA 1994) ("[T]he
    supreme court consistently has reaffirmed the principle that
    chapter 767 supersedes the common law in actions against dog
    owners for injuries caused by their dogs."); see also Reed v. Bowen,
    
    512 So. 2d 198
    , 199 (Fla. 1987) ("[S]ection 767.04 makes the dog
    owner an insurer against damage caused by his dog, subject to
    certain enumerated exceptions, thus modifying the common law
    basis for recovery grounded in negligence, and superseding
    common law defenses."); Belcher Yacht, Inc. v. Stickney, 
    450 So. 2d 1111
    , 1113 (Fla. 1984) ("Carroll and Donner, decided thirteen and
    five years ago, respectively, placed the legislature on notice that
    section 767.04, Florida Statutes, enacted in 1949, superseded the
    common law on dog bites. 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. See Donner, 
    358 So. 2d at 26
    ; Davison,
    243 So. 3d at 490 & n.1; Huie, 632 So. 2d at 1112; see also
    Arellano v. Broward K-9, 
    207 So. 3d 351
    , 353 (Fla. 3d DCA 2016)
    ("Arellano's . . . claim is founded upon section 767.04, which effects
    the legislative purpose of imposing on a dog owner strict liability for
    dog bite damages. The statute prescribes a limited exception to
    such strict liability: the plaintiff's comparative negligence.").
    Ms. Culp points out, correctly, that section 767.04 does not
    include a third-party or Fabre defense in its text. And the statute
    that governs allocation of fault to nonparties, section 768.81(3)(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. Her point
    is well taken.
    22
    If the legislature wishes to include the negligence of third-
    party defendants as a statutory defense to dog-related injury
    claims, it is free to do so. We, however, cannot. See State v. Burris,
    
    875 So. 2d 408
    , 413-14 (Fla. 2004) ("To construe the statute in a
    way that would extend or modify its express terms would be an
    inappropriate abrogation of legislative power." (citing Holly v. Auld
    
    450 So. 2d 217
    , 219 (Fla. 1984))); Nationwide Mut. Fire Ins. Co. v.
    Hild, 
    818 So. 2d 714
    , 718 (Fla. 2d DCA 2002) ("[T]his court cannot
    alter or amend the plain language chosen by the legislature."); Huie,
    632 So. 2d at 1112 (Fla. 5th DCA 1994) ("[U]ntil the legislature
    mandates otherwise, section 767.04 supersedes the common law
    and provides both the exclusive remedy and defenses in a dog-bite
    action."). The circuit court correctly excluded this defense (and the
    evidence related to it) from the jury's consideration.
    III.
    Lastly, we will address an evidentiary issue concerning
    economic damages that arose during the trial. The Parsons claim
    the circuit court erred when it permitted Ms. Culp to admit into
    evidence invoices showing the entire amount her providers billed
    Medicare for her past medical expenses, rather than the reduced
    23
    amount these providers actually accepted. The difference between
    the two amounts, $47,882.32 versus $151,000.01, totaled
    $103,117.69. Notably, the jury was not tasked with determining
    the amount of Ms. Culp's past medical expenses in its verdict.
    Following the circuit court's ruling on the bills' admissibility, the
    parties stipulated to the amount of past medical expenses Ms. Culp
    would be entitled to recover. Thus, the issue here is purely
    evidential. The Parsons maintain that the erroneous admission of
    these bills may have impacted the jury's award of noneconomic
    damages and that, therefore, they are entitled to a new trial. That
    is an issue we review for abuse of discretion. Lively v. Grandhige,
    
    313 So. 3d 917
    , 919 (Fla. 2d DCA 2021) ("Generally, we review the
    denial of motion for new trial under the abuse of discretion
    standard . . . ."); Pena v. Vectour of Fla., Inc., 
    30 So. 3d 691
    , 692
    (Fla. 1st DCA 2010) ("Trial court rulings on motions for new trial are
    given great deference on appeal. The possibility of reasonable
    disagreement does not constitute an abuse of discretion." (citations
    omitted)).
    The basis of the Parsons' argument derives from our holding in
    Cooperative Leasing, Inc. v. Johnson, 
    872 So. 2d 956
     (Fla. 2d DCA
    24
    2004). In Johnson, we held that "the appropriate measure of
    compensatory damages for past medical expenses when a plaintiff
    has received Medicare benefits does not include the difference
    between the amount that the Medicare providers agreed to accept
    and the total amount of the plaintiff's medical bills." 
    Id. at 960
    . We
    further stated that the trial court in Johnson "should have granted
    the appellants' motion in limine and prohibited Johnson from
    introducing the full amount of her medical bills into evidence." 
    Id.
    Ms. Culp counters that the Florida Supreme Court, in Joerg v.
    State Farm Mutual Automobile Insurance Co., 
    176 So. 3d 1247
    , 1253
    (Fla. 2015) (holding that evidence of eligibility for future benefits
    from Medicare, Medicaid, and other social legislation was
    inadmissible because "Medicare benefits are both uncertain and a
    liability . . . due to the right of reimbursement that Medicare
    retains"), "abrogates this [c]ourt's decision in Johnson with regard to
    its treatment of Medicare recipients." Alternatively, she argues, the
    admission of these medical bills was harmless given the facts of this
    case.
    After the trial in this case had concluded (and after the
    Parsons filed their initial brief in this appeal), we addressed this
    25
    very issue in Dial v. Calusa Palms Master Ass'n, 
    308 So. 3d 690
    (Fla. 2d DCA 2020). In Dial, we concluded that Joerg's holding was
    confined to the admissibility of evidence concerning a plaintiff's
    future medical expenses covered by Medicare. 
    Id. at 691
    . We
    observed that our foundational concern in Johnson—"that plaintiffs
    ought not to receive a windfall to recover the purported value of
    past medical 'expenses' that were never paid"—was not addressed
    in Joerg. 
    Id. at 692
    . We need not restate the entirety of Dial's
    holding and rationale. Since essentially the same argument about
    Joerg's purported abrogation of Johnson was presented in Dial, the
    same result in Dial obtains here. The circuit court should not have
    allowed the bills of past medical expenses for the jury’s
    consideration when those bills were paid at a reduced amount by
    Medicare.5
    But the Parsons ask us to now go a step further. Although
    neither Johnson nor Dial ordered a new trial following the
    5 At the conclusion of the Dial opinion, we certified a question
    of great public importance concerning this issue. 308 So. 3d at
    692. On April 26, 2021, the Florida Supreme Court accepted
    jurisdiction of Dial. Dial v. Calusa Palms Master Ass'n, SC21-43,
    
    2021 WL 1604008
    , at *1 (Fla. Apr. 26, 2021).
    26
    evidentiary error of admitting the unreduced past medical bills, the
    Parsons contend we should do so here. On the facts of this case,
    we find that is a step too far.
    The jury was never called upon to determine the amount of
    past medical expenses at the trial in this case. Nor was any
    suggestion made to the jury that they ought to ascribe noneconomic
    damages in some proportion to their award of economic damages.
    The manner in which the two issues—economic and noneconomic
    damages—were presented appeared to keep them separate from
    each other. And the past medical bills were never elaborated upon
    during closing statements. In reviewing the entirety of the record,
    then, we do not believe the admission of these bills impacted the
    remainder of the jury's verdict in this case such that the circuit
    court abused its discretion when it denied the motion for new trial.
    See Ring Power Corp. v. Condado-Perez, 
    219 So. 3d 1028
    , 1034 (Fla.
    2d DCA 2017) ("[I]n order for an appealing party to be successful in
    a challenge to a judgment based on 'the improper admission or
    rejection of evidence,' the appellate court must conclude 'after an
    examination of the entire case . . . that the error[s] complained of
    ha[ve] resulted in a miscarriage of justice." (second and third
    27
    alterations in original) (quoting Fla. Inst. for Neurologic Rehab., Inc.
    v. Marshall, 
    943 So. 2d 976
    , 979 (Fla. 2d DCA 2006))).6
    IV.
    The circuit court was correct when it precluded the Parsons
    from presenting the alleged manufacturing defect of Bogey's collar
    to the jury for apportionment of a third party's fault. But the
    6  Nor do we find this evidentiary error to have been harmful,
    such that reversal for an entirely new trial is necessary. We
    recognize that under Special v. West Boca Medical Center, 
    160 So. 3d 1251
    , 1256 (Fla. 2014), "the responsibility for proving harmless
    error remains with the beneficiary of the error, who must
    demonstrate that there is no reasonable possibility that the error
    contributed to the verdict," but for the reasons we have already
    relayed, we do not believe the error of admitting these documents
    rose to that level of harm. See § 59.041, Fla. Stat. (2016) ("No
    judgment shall be set aside or reversed, or new trial granted . . . on
    the ground of . . . the improper admission or rejection of evidence
    . . . unless in the opinion of the court to which application is made,
    after an examination of the entire case it shall appear that the error
    complained of has resulted in a miscarriage of justice.").
    Admittedly, as was discussed during oral argument, none of us can
    peer into the jury room to discern for certain what, if any, impact
    this evidence may have had. But that is true in all jury trials where
    an evidentiary error was made. We do not read Special's burden as
    imposing that extraordinary kind of showing onto appellees—which,
    in truth, would be nearly impossible to ever satisfy. Rather, we
    must simply take the record we have and, from the vantage we
    hold, answer the question Special poses. We have endeavored to do
    so here and conclude, on this record, that it was not an abuse of
    discretion for the circuit court to deny the Parsons' motion for new
    trial, and the erroneous admission of these bills did not contribute
    to the jury's verdict.
    28
    deprivation of the Parsons' comparative negligence defense
    necessitates reversal for a new trial on that issue. We do not
    believe the erroneous admission of Ms. Culp's past medical bills
    necessitates a new trial on any other issues. We therefore reverse
    the court's judgment with respect to the issue of comparative fault
    and remand this case for a new trial that will be limited solely to
    that issue. See Barrientos v. Hyre, 
    805 So. 2d 981
    , 982 (Fla. 2d
    DCA 2001) ("The error requiring a new trial affected only the issue
    of comparative fault, and the new trial must be limited to that
    issue." (citing Nash v. Wells Fargo Guard Servs., 
    678 So. 2d 1262
    ,
    1263-64 (Fla. 1996))); Philip Morris USA, Inc. v. Martin, 
    262 So. 3d 769
    , 777 (Fla. 4th DCA 2018) (noting that "it is well established that
    a reversal based on a comparative fault error does not affect or
    require a new trial on a jury's determination of compensatory
    damages" but "[i]nstead such an error simply requires a remand for
    apportionment of fault" and citing cases). Accordingly, we reverse
    the judgment below and remand this case for further proceedings
    consistent with this opinion.
    Affirmed in part; reversed in part; remanded with directions.
    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. While district courts of appeal are bound by
    "controlling precedents set by the Florida Supreme Court," State v.
    Lott, 
    286 So. 2d 565
    , 566 (Fla. 1973) (emphasis added), the
    pronouncement in Sklar that the defenses in the dog-bite statute
    apply to actions brought under the dog-damage statute was dicta,
    not binding precedent. See Lewis v. State, 
    34 So. 3d 183
    , 186 (Fla.
    30
    1st DCA 2010) ("[A] pronouncement of law that is ultimately
    immaterial to the outcome of the case" is not "part of the holding 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. Dual Security Systems, Inc., 
    373 So. 2d 948
     (Fla. 3d
    DCA 1979)), was an inessential statement constituting nonbinding
    dicta. See Pedroza v. State, 
    291 So. 3d 541
    , 546 (2020) ("Any
    statement of law in a judicial opinion that is not a holding is
    dictum," and a "holding consists of those propositions along the
    chosen decisional path or paths of reasoning that (1) are actually
    31
    decided, (2) are based upon the facts of the case, and (3) lead to the
    judgment." (emphasis added) (quoting State v. Yule, 
    905 So. 2d 251
    ,
    259 n.10 (Fla. 2d DCA 2005) (Canady, J., specially concurring))). A
    statement in a judicial opinion that is "unnecessary to the
    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. Sims v. State, 
    743 So. 2d 97
    , 99 (Fla. 1st DCA 1999) ("While dicta from the Florida Supreme
    Court may afford welcome guidance, such passages lack the
    binding force of precedent." (quoting Davis v. State, 
    594 So. 2d 264
    (Fla.1992) (citation omitted))); Horton v. Unigard Ins., Co., 
    355 So. 2d 154
    , 155 (Fla. 4th DCA 1978) ("The rule seems to be that dictum
    in an opinion by the Supreme Court of Florida, while not binding as
    precedent, is persuasive because of its source."), disapproved on
    32
    other grounds by Dressler v. Tubbs, 
    435 So. 2d 792
    , 794 (Fla. 1983);
    cf. Estate of Williams v. Tandem Health Care of Fla., Inc., 
    899 So. 2d 369
    , 374 (Fla. 1st DCA 2005) (treating language that "was not
    dispositive of the issue before the supreme court" as dicta).
    It is especially important to recognize that Supreme Court
    dicta is merely persuasive when it competes against a contrary,
    binding holding of the Supreme Court. Cf. O′Sullivan v. City of
    Deerfield Beach, 
    232 So. 2d 33
    , 35 (Fla. 4th DCA 1970) ("We
    acknowledge that dictum of the Supreme Court in the absence of a
    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. Utica Mut.
    Ins. Co., 
    463 So. 2d 1153
    , 1157 (Fla. 1985) (emphasis in original).
    The Florida Supreme Court frequently reiterates that it does not
    33
    overrule itself sub silentio and often admonishes lower courts
    against inferring such an overruling of prior precedent based on
    dicta in subsequent opinions. See, e.g., F.B. v. State, 
    852 So. 2d 226
    , 228–29 (Fla. 2003) (counseling district courts against reliance
    on its own dicta that is in conflict with its prior express holdings,
    because the "Court does not intentionally overrule itself sub
    silentio"); see also Abaddon, Inc. v. Schindler, 
    826 So. 2d 436
    , 438
    (Fla. 4th DCA 2002) ("[A]lthough this [subsequent Florida Supreme
    Court] dicta seems to contradict [a prior holding of the Florida
    Supreme Court,] our supreme court has held that '[w]here a court
    encounters an express holding from this Court on a specific issue
    and a subsequent contrary dicta statement on the same specific
    issue, the court is to apply our express holding in the former
    decision until such time as this Court recedes from the express
    holding.' " (alteration in original) (quoting Puryear v. State, 
    810 So. 2d 901
    , 905 (Fla. 2002))); Bessey v. Difilippo, 
    951 So. 2d 992
    , 995
    n.6 (Fla. 1st 2007) (disregarding subsequent Florida Supreme Court
    dicta that contradicted a prior holding of that court) (citing Puryear,
    
    810 So. 2d at 905
    )); cf. Stevens v. State, 
    226 So. 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. I am confident, given the
    language of its opinion, that the majority would agree that our
    fealty must be to the text of the legislative pronouncements we are
    interpreting. See Maj. Op. at I.A. (citing Ham v. Portfolio Recovery
    Assocs., LLC, 
    308 So. 3d 942
    , 946–47 (Fla. 2020) ("In interpreting
    the statute, we follow the 'supremacy-of-text principle'—namely, the
    principle that 'the words of a governing text are of paramount
    concern, and what they convey, in their context, is what the text
    means.' " (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
    The Interpretation of Legal Texts 56 (2012))). And while district
    courts are bound to apply the holdings of the Florida Supreme
    Court, they should not consider themselves bound to follow Florida
    Supreme Court dicta that is patently in conflict with the language of
    the statutory scheme they are interpreting and that would
    constitute a receding from prior Supreme Court precedent sub
    silentio. See Garcia v. Dyck-O′Neal, Inc., 
    178 So.3d 433
    , 436 (Fla.
    3d DCA 2015) ("When the clear and unambiguous language of a
    statute commands one result, . . . while dicta from case decisions
    might suggest a different result," the language of the statute must
    36
    be followed.); Sturdivant, 84 So. 3d at 1052 (Rowe, J., dissenting)
    ("Although dicta from the Florida Supreme Court 'may afford
    welcome guidance . . . such passages lack the binding force of
    precedent.' In fact, in cases such as this one, where the Legislature
    has clearly declared a contrary intent, such dicta must be
    disregarded." (emphasis added) (first quoting Sims, 743 So.2d at 99;
    and then citing Estate of Williams ex rel. Williams v. 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. I, therefore, respectfully
    dissent from the majority opinion to the extent that it reverses the
    judgment and remands for a new trial and holds that the trial court
    erred by depriving the Parsons of a comparative negligence
    defense.7
    7  I concur in result only with Part II of 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. And I concur
    in result only with Part III of the majority opinion concluding that
    37
    the trial court did not abuse its discretion by denying the Parsons'
    motion for new trial based on the admission of evidence of past
    medical expenses in an erroneous amount.
    38