<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by DogOnMad:
Last night, the Fourth of July, I was outside in my front yard setting off fireworks with family. My 7 year old son went in the house to get something to drink. Upon returning he left the front door open. We have two large dogs 65LB Shepard mix and a 50LB husky, They are very good with people, however they dont like other animals that much.
So as murphys law predicts a man walking his little 8LB terrier happend to stroll by just as this was happening, before I knew it my two dogs had darted out the door and fiercely tried to attack the little terrier. I ran over and tackled my dogs and dragged them back into the house. The little dog was luckily uninjured but the man walking the dog was either scrached or bitten (small laceration)on his arm. Neither he or I wa sure which dog did it but we were certain that it was not intentional.
Needless to say the individual walking the dog was very upset, and not without reason. The man left to go home and said he was going to file a police report. That is the last I heard of it.
My question is what is my criminal/civil responsibility for this act? What should I expect if he does file a report? My wife and son are worried that the county will have our dogs put to sleep, (not without a fight). My main concern is if he does take civil action will my homeowners insurance cover this type of incident? I know that there is not a waiver to exclude the dogs from the ploicy because they offered me a discount if I excluded the dogs and I turned it down for this reason. The auctual incident did not occur on my property. Also is there any criminal liablity on my behalf?
I live in Florida and would appreciate any advice. <HR></BLOCKQUOTE>
My response:
The laws of Florida are favorable to dog bite victims. The dog bite statute is a modified strict liability statute, similar to that of California. However, there are two significant exceptions to the strict liability nature of this law. First, the victim's recovery is reduced by the victim's percentage of fault. Second, there is no recovery for certain kinds of attacks if the owner displayed a sign that said "Bad Dog."
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The Florida dog bite statute
767.01 Dog owner's liability for damages to persons, domestic animals, or livestock.--Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01.
767.04 Dog owner's liability for damages to persons bitten.--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 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.
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DOG BITE OWNER LIABILITY GENERAL PRINCIPALS
Dog bite owner liability is determined by the state law where the bite occurred. It follows that there are 50 different applicable laws for dog bite owner liability in the United States. There are common law principles which apply to dog bites in general, however, many states have enacted statutes which create a dog bite victim's civil action for money in addition to the common law theories of negligence and strict liability. The common law refers to precedent which has developed over hundreds of years.
The common law in Florida recognizes a strict liability theory of recovery against a dog owner where the dog has a vicious, dangerous or mischievous trait or propensity and the dog's owner has knowledge of this trait or propensity prior to the victim's bite. It is a two tier test. The first element requires (1) whether the dog is dangerous (2) whether the owner has scienter, i.e., knowledge of the trait or propensity. If the dog bite victim proves beyond a preponderance of the evidence these two elements the owner is said to be absolutely liable. The concept behind this theory of recovery is based on the presumption that dogs are domesticated and liability will not attach unless the owner has knowledge of the dog's dangerous trait or propensity.
The common law also recognizes a negligence theory of recovery against a dog owner where negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use reasonable or ordinary care. Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. You will note that the person whose conduct I have set up as a standard is not the extraordinary cautious individual, nor the exceptionally skilled one, but a person of reasonable and ordinary prudence.
A key difference between these two theories is that strict liability does not consider the conduct of the owner as is required in negligence, however, strict liability requires proof of the owner's knowledge of the dangerous propensity. Also a dog owner may present defenses which require proof of different elements depending on the theory of recovery plead by a plaintiff.
In response to strict liability claims the defense of (1) assumption of the risk and (2) wilful invited injury were recognized by some judges. The dog owner plead that the dog bite victim assumed the risk and therefore was barred from recovery or wilfully invited the injury. Similar defenses were plead to defeat negligence actions that the dog bite victim was negligent and this negligence contributed to the dog bite to such an extent that the victim was guilty of contributory negligence. An example of contributory negligence may be that the dog bite victim was a trespasser on the land of the owner at the time of the bite. Another form of this type of defense is known as provocation.
Each state has developed its own law regarding dog bite owner liability. The general principals stated in the foregoing are simply illustrative and are not to be relied upon in an analysis whether liability exits in a specific instance. The state law where the bite occurred must be researched to determine the current law on the subject. This is done by reading the case law and any relevant statutes, codes, ordinances or regulations. It is also a good practice to read cases in other states that are relevant to your issues which may provide additional insights and strategy. Careful research may be the difference between prevailing on a dog bite claim or presenting a successful defense.
There are numerous issues which may affect dog owner liability. For example, a landowner/landlord may be liable for a owner's biting dog. The liability may be joint and several, i.e., where th
