Starting Point for This Legal

starting point for this legal analysis is Florida Revised Code section 767.04. The statute has three essential elements. First, it imposes strict liability on the dog owner.

This means that the Plaintiff will not have to demonstrate that the dog was either vicious or had a prior history of biting. Secondly, the statute also establishes the doctrine of comparative negligence and, therefore, any behavior by the Plaintiff that might be construed as contributing to the injury might be used to offset the potential damages. Finally, the statute provides a defense to the dog owner's liability through the use of the "Bad Dog" exception. The defense allows the dog owner to avoid liability by prominently displaying a sign warning of the dog's presence.

Defendant's Display of Warning Sign

The law in Florida has long been that a dog owner will not be liable for injuries caused by his dog where he prominently displays a sign on the premises warning of the dog's presence.

According to deposition testimony by the defendant, Jimmy Taylor, there was a sign to the side of his driveway that was clearly visible, however, the wording of the sign, "Beware of the Dog," does not adhere to the exact wording of the statute granting the defense. Under the terms of the statute the sign must contain the words "Bad Dog" and the defendant's own testimony clearly indicates that his sign did not include such language. This failure by the Defendant may open the door for the court to disregard the availability of this defense.

It should be pointed out that the Plaintiff claims to not have seen the warning sign. This claim, however, has no bearing on the application of the defense. The fact that she did not see the sign will not serve to change the outcome as the case law clearly states that the failure to notice a prominently displayed sign does not prevent the application of the statutory defense.

I. Plaintiff's Voluntarily Exposed to Herself to Potential Injury

The fact that the Plaintiff also voluntarily placed herself in a position of danger may also serve to affect the Defendant's liability in this action.

In the preliminary notes it was reflected that the Ms. Buffet was initially out of the reach of the dog but voluntarily placed herself within his reach when she moved to acquire a piece of sponge cake.

In mitigation of Ms. Buffet's actions, she did rely upon the fact that the dog appeared to be properly tethered at the time that she made her decision and had been for some time in that the ground around the tree was well worn. It should also be pointed out that the Defendant, Mr. Taylor, warned the Plaintiff to not play with the dog and that Ms. Buffet openly admits that this is the case. The warning itself will not affect the issue of liability but it will impact on the measure of damages. As Ms. Buffet made no effort to play with the dog or otherwise interact with him the issue of the warning should have little impact on the case but it is something that must be considered.

II. Doctrine of Comparative Negligence Will Mitigate Damages

Assuming arguendo that the Plaintiff can prove negligence by the Defendant she must overcome the tenets of the Comparative Negligence doctrine.

As Florida follows pure comparative negligence she might still be able to recover damages but they would be diminished by how the contribution of fault is measured by the jury. For example, if the jury were to determine that the Plaintiff was 50% responsible and the total damages were to be assessed at $5,000, the dog's owner would be responsible for only 25% of the judgment.

Summary