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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
Based upon the facts originally presented and the subsequent deposition testimony the Plaintiff's case is not a particularly strong one. The fact that the Defendant had a sign displayed...
Because the wording was not in strict compliance with the statutory requirements this defense might be weakened and strict liability might still be applied but this likelihood is minimal. Additionally, assuming the defense is not allowed, the Plaintiff must still get by the defense of comparative negligence. She admits having been warned about the dog's presence by the Defendant and she also took a constructive act that served to place her in a place of danger. Such act will properly considered by the jury and it will then become the jury's duty to assess the percentage of negligence by both parties. Under the facts of this case, if liability is found at all a finding of comparative negligence in the 50% area is highly likely.
Tran v. Bancroft, 648 So. 2d 314 (Fla. 4th DCA 1995)
Reed v. Bowen, 503 So.2d 1265 (Fla. 2d DCA 1986)
Fla. Stat. §764.04
Kilpatrick v. Sklar, 497 So.2d 1289 (Fla. 3d DCA 1986)
Rattet v. Dual Security Systems, 373 So.2d 948 (Fla. 3d DCA 1979)
Hoffman v. Jones, 280 So.2d 287 (Fla. 1977)
Bessett v. Hackett, 66 So. 2d 694 (Fla. 1953)
Restatement of Torts (Second) §463
Hoffman v. Jones, 280 So.2d 287 (Fla. 1977)
Bessett v. Hackett, 66 So. 2d 694 (Fla. 1953)
Restatement of Torts (Second) §463
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