Deborah Davison v. Rebecca Berg , 243 So. 3d 489 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-1481
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DEBORAH DAVISON,
Appellant,
v.
REBECCA BERG,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Steven M. Fahlgren, Judge.
March 22, 2018
PER CURIAM.
Deborah Davison, an avid animal enthusiast, volunteered at
her local Humane Society to help take care 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. The trial
court granted final summary judgment in favor of Berg on two
equally dispositive bases: 1) the signs outside the dog park
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. Utica Mut. Ins. Co., 463 So.
2d 1153, 1156 (Fla. 1985) (citing Donner v. Arkwright-Boston
Mfrs. Mut. Ins. Co., 358 So. 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. Stat. 1 Berg
presented evidence regarding two signs prominently displayed at
the dog park entrance, titled “Dog Park Rules.” The two signs
respectively listed ten and eleven rules for entrance to the dog
park. The rules noted that park use is at “the dog owner’s risk.”
Dogs “exhibiting aggressive behavior” were not permitted in the
park, and “rough play and chasing” were not allowed if any dogs
or owners were uncomfortable with the behavior. One sign added
an eleventh rule stating that visitors enter the dog park at their
own risk. Davison had seen and understood these signs prior to
the incident at issue.
The trial court found that Davison was aware of the two
signs, which adequately advised her that she entered the dog
park at her own risk. However, the purpose of the statutory sign
requirement is to give “genuine, effective and bona fide” notice
“that a bad dog is on the premises.” Carroll v. Moxley, 241 So. 2d
681, 683 (Fla. 1970); see also Romfh v. Berman, 56 So. 2d 127,
129 (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. See Kilpatrick v. Sklar, 548 So. 2d 215, 218 (Fla.
1989).
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entering the premises on notice that there were dangerous dogs
on the place.”). “Not every sign, even if seen, is sufficient to put a
potential victim on notice of the risk he assumes by being present
on the premises.” Carroll, 241 So. 2d at 683. The signs, which
also contain rules regarding digging holes and disposing of dog
waste, are not designed to warn visitors not to enter the dog park
due to the presence of dangerous dogs. Cf. Romfh, 56 So. 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. Sklar, 548 So. 2d 215, 216 (Fla. 1989), a
police officer climbed over a home’s backyard fence while
investigating a possible burglary, was startled by the
homeowners’ four dogs as he crept through the backyard, and
“impaled himself in the calf” while attempting to jump back over
the fence in retreat. 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. at 218.
This rule has been applied consistently by the courts, without
regard for lack of negligence or other reasonable common law
arguments. See Huie v. Wipperfurth, 632 So. 2d 1109, 1112 (Fla.
5th DCA 1994), approved, 654 So. 2d 116 (Fla. 1995); Freire v.
Leon, 584 So. 2d 98, 99 (Fla. 3d DCA 1991). 2
2 We note that all cases cited construed section 767.04 before
its 1993 amendment, which replaced the defense of provocation
with comparative negligence, and permitted plaintiffs to seek
other remedies outside chapter 767. See Ch. 93-13, § 1, at 117,
Laws of Fla.; Huie v. Wipperfurth, 632 So. 2d 1109, 1112 n.3 (Fla.
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The summary judgment evidence demonstrated that Davison
was aware that she could be injured in the course of her
volunteer work. She signed a volunteer application form
acknowledging that she could be exposed to bites, scratches, and
other injuries. One year prior to her injury, she watched a dog
collide with another individual, which also caused a broken leg.
Following that incident, she spoke multiple times with others at
the Humane Society about the dangers of being inside the dog
park with dogs running around and chasing each other, but
continued to volunteer. Finally, moments before her own
collision, she noticed dogs chasing each other and stated, “This
looks like leg breaking territory. I better get out of here.”
While there may be evidence to support the trial court’s
conclusion that Davison consented to the risk of injury, an actual
consent or assumption of the risk defense cannot bar liability.
Rather, the Legislature requires these facts to be presented to the
jury for a determination of comparative negligence, in accordance
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.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jeffrey J. Humphries of Morgan & Morgan, Jacksonville, for
Appellant.
William H. Davis of Dobson, Davis & Smith, Tallahassee, for
Appellee.
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