• Who let the Dog (Owner) Out?
  • March 18, 2010 | Author: Andrew R. McCumber
  • Law Firm: McCumber, Daniels, Buntz, Hartig & Puig, P.A. - Tampa Office
  • While the trial lawyers like to portray themselves as pursuing “justice,” sometimes it is the defense lawyer who must fight against a statutorily dictated result that is inequitable.

     

                In Florida, as in many jurisdictions, the owner of any dog that bites any person while that person is in a public place or lawfully in a private place, including the property of the owner of the dog, is (strictly) liable for any damages suffered by the person bitten.  Statutes such as §767.04 Fla. Stat., enacted in 1949, provide that this liability attaches regardless of whether the former viciousness of the dog can be established or that the owner knew of such viciousness.  So the analysis of liability in a dog bite case seems simple and straight forward; if a dog you own bites someone, you are liable. 


              Sometimes even such a clear statute can lead to an inequitable result.  In a recent case, a Plaintiff Veterinary Technician at an Animal Hospital was unexpectedly bitten while holding “Wolfie” while the Veterinarian began trimming the nails on one of the dog’s back paws.  For reasons which are not clear (Wolfie is not talking), the dog turned his head quickly and bit the Veterinary Technician on the face during the nail work.  The defendant dog owner was sitting on a bench nearby in the examination room but obviously had neither possession of nor control over Wolfie at the time of the incident.  Despite the name, Wolfie had no history of viciousness and was likely just reacting to an overly aggressive nail clipping by a Veterinarian who had, in consult with the Plaintiff Veterinary Technician, affirmatively decided that a muzzle was unnecessary. 


             Sometimes the law just isn’t fair.  The defendant dog owner had absolutely no ability to prevent this injury sustained by a Veterinary Aide as a direct result of her actions and, in hindsight, the erroneous decision of her employer.  The Plaintiff, of course, had her medical expenses paid in a Worker’s Compensation claim but that same system precludes her from proceeding with a direct action against the negligent party, the Veterinarian.

     

            A review of related statutory provisions revealed a broad definition of “owner”, which includes any person or organization possessing, harboring, keeping or having control or custody of an animal.  Under a fair reading of this provision, the Plaintiff Veterinary Technician would have been the “owner” of Wolfie at the time of the bite since she was in possession and had control of the dog and, accordingly, she would be precluded from proceeding with a personal injury action against the innocent owner.

     

           While the Court’s eventual decision on this matter would seem to be clearly dictated given the equities involved, the Florida Supreme Court unfortunately reviewed an earlier version of the Florida’s dog bite statute in 1995 and concluded that the term “owner” did not include a kennel owner or veterinarian who undertakes the care, custody and control of the dog.  The Supreme Court, however, specifically refused to consider the implications of this new broader definition  of “owner” in that decision because the effective date of that section of the statute was subsequent to the incident at issue in that particular case.

     

           The Trial Court’s decision in this matter should help establish the law going forward in Florida and is expected to reach the correct result.  Quite simply, without fault, there should be no liability especially where there is fault on the Plaintiff.  To hold otherwise in this matter would be like a surgeon suing a patient for injuries sustained by the surgeon’s erroneous handling of a surgical scalpel during surgery on an unconscious patient.

    For more information on this article, please contact Andrew McCumber at [email protected]. Please visit our website at www.mccumberdaniels.com for a full bio on Mr. McCumber.