Strength of the Defendant\'s Motion

¶ … strength of the Defendant's Motion for Summary Judgment. Overcoming this Motion will require that there is no genuine issue of material fact. Underlying the Defendant's Motion is the existence of several other issues. The application of the F.S.A §767.04 to the facts is of paramount concern. The statute sets a strict liability standard but is subject to some exceptions. At issue is whether the facts in this case bring these exceptions into play and, if so, what effect do they have?

Argument

The Defendant in this case should be held strictly liable for the actions of his dog. The Plaintiff, our client, has suffered serious and debilitating injuries and deserves to be compensated accordingly. There is no evidence to support that she did anything to initiate the contact by the dog or that she harassed or irritated the animal in any way. She relied heavily on the apparent fact that the dog was properly tethered when she decided to move toward the animal and, based on the facts, such reliance was reasonably developed. The Defendant's part in creating this illusion is further evidence of his negligence. Finally, the Plaintiff's presence on the property was proper and she deserved the requisite consideration.

There is creditable evidence that the Defendant was aware of his dog's possible strange behavior requiring him to take special measures to protect others. There is no evidence that he did so other than his unsupported claim that he had placed a sign warning others of the dog's presence and that he personally warned the Plaintiff not to bother the dog. The Plaintiff strongly denies both claims. The signage issue is an important one as it is of one the exceptions recognized by the statute governing this claim. Its presence at the time of the action could serve to defeat the Plaintiff's claim but this is clearly a question of fact and subject to the proofs at trial. Quite simply, the facts do not support the Defendant's Motion for Summary Judgment and it should, therefore, be denied.

As indicated, the Plaintiff's injuries are severe. There is no doubt that the dog's actions caused her to suffer permanent and debilitating injuries to her ankle. Presently she suffers from a profound loss of mobility. She may also have suffered an injury to her back but this would be more in the form of an aggravation of a pre-existing injury as she had apparently suffered an earlier injury to this area. Unfortunately, she failed to advise us of this fact earlier but presenting this as an aggravation as opposed to a new injury should serve to obviate the Plaintiff's lack of disclosure.