From: A. Foster
Date: November 23, 2010
Re: Smith’s defenses to dog bite
1) Under Florida Statute Section 767.04 which sets the defenses in which a dog owner can avoid liability due to injury caused by a dog bite, can dog owner avoid liability by using the defense of provocation for injuries caused by a dog bite when the owner’s dog bit an 8 year old child, when said minor while dressed in a cat costume came onto our client’s property, noticed client’s Yorkshire Terrier puppy, ran up to the window in which he viewed the puppy, while knocking on client’s window and yelling “trick or treat” with other costumed children on Halloween and was bitten when the owner opened the door to hand out treats to children, and the minor was trying to retrieve treats for Halloween? 2) Under Florida Statute Section 767.04 which sets the defenses in which a dog owner can avoid liability due to injury caused by a dog bite, can dog owner avoid liability for a dog bite injury to a 8 year old child by employing the defense of the presence of a proper warning sign when the 8½” x11” cardboard warning sign in which he posted in the upper pane of his living room window, which was decorated with webbing, situated on the right side of the front of his house stated “Warning “The Beast’ Lives Here”, with a picture of a Yorkshire Terrier, where the minor failed to see the sign, and after owner opened the door, minor getting bit when dog jumped up and bit his finger when minor was trying to retrieve treats for Halloween? Short Answer(s):
1) It is most improbable that our client can avoid liability for the dog bite injury due to the requirements in the dog bite statute. The statute provides “a defense when 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.” Fla. Stat. § 767.04. In this instance the court may reject that Plaintiff was negligent in contributing to the dog bite injury. The court may believe that Plaintiff did not expressly exhibit any threatening behavior directed at the Beast, nor our client. The jury may find that Plaintiff was merely trick or treating with friends and the fact that Plaintiff wore a cat costume may have been enough to set Beast off. In addition, Plaintiff never entered our client’s house. It is highly improbable that our client may be able to use the defense of provocation to be relieved from liability for injuries caused by the dog bite in this instance. 2) It is unlikely that the court will find that our client may prevail in using the defense of the presence of a proper warning sign to avoid liability for the dog bite injury to Plaintiff. According to Florida Statute Section 767.04, “the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a 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.’” Here the court may find that the sign was not posted in a prominent place because the sign was posted in the upper pane of our client’s living room window, situated on the far right side of the front of his house with a picture of a Yorkie. The court may find that the sign was missing the required statutory language which included the words, Bad Dog, because instead it stated, “Warning “The Beast’ Lives Here”. The court may find that the sign was not easily readable because, Plaintiff has alleged he did not see the sign even though he was knocking at the window in which the sign was posted, and since it was Halloween, our client had many home decorations up, including webbing in the windows, which may have made it more difficult to read the warning sign that he had posted in his window. It is unlikely our client...