Third District Court of Appeal
State of Florida
Opinion filed November 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-314 & 3D15-2609
Lower Tribunal No. 13-18732
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Lisa Arellano,
Appellant,
vs.
Broward K-9/Miami K-9 Services, Inc., etc.,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, John Schlesinger,
Judge.
Colson Hicks Eidson, and Deborah J. Gander, Maureen E. Lefebvre, W.
Allen Bonner and Barbara A. Silverman, for appellant.
Banker Lopez Gassler, P.A., and Sarah Lahlou-Amine and Mark D. Tinker
(Tampa), for appellee.
Before EMAS, FERNANDEZ and SCALES, JJ.
SCALES, J.
Appellant, plaintiff below, Lisa Arellano appeals the trial court’s final
summary judgment determining, as a matter of law, that Arellano’s actions
constituted a superseding, intervening cause, thereby precluding her statutory dog
bite claim against appellee, defendant below, Broward K-9/Miami K-9 Services,
Inc. (“K-9”). Arellano also appeals the trial court’s cost judgment entered against
her in favor of K-9. We reverse because Florida’s dog bite statute imposes strict
liability on dog owners, subject only to a plaintiff’s comparative negligence, which
in this case must be determined by the trier-of-fact.
I. Facts1
K-9 supplied two guard dogs to a commercial business located in Miami,
Florida. On a Monday morning, a K-9 employee came to the business to feed and
tend to the dogs, and discovered that the dogs had escaped their fenced yard.
Apparently, the business had been burglarized the night before and the chain-link
fence cut, allowing the dogs to escape into Arellano’s neighborhood.
Believing that the dogs belonged to one of Arellano’s neighbors, Arellano
fed and sheltered the dogs for about five days, taking steps to find the dogs’ owner.
Specifically, Arellano sent an e-mail to the neighborhood watch group, and
contacted County Animal Services to inquire about reports of missing dogs.
1 When reviewing a summary judgment, we view the facts in a light most favorable
to Arellano, the non-moving party. Markowitz v. Helen Homes of Kendall Corp.,
826 So. 2d 256, 259 (Fla. 2002).
2
Arellano had two pet dogs of her own. When Arellano allowed the guard
dogs into her fenced yard, she made sure her own dogs remained inside her home.
When Arellano arrived home from work each evening, she let her dogs out into her
yard and secured the guard dogs in her laundry room. On October 21, 2011, the
Friday following the guard dogs’ escape, Arellano arrived home from work to find
the guard dogs missing. She let her two dogs into her yard. The guard dogs soon
returned to Arellano’s home, one of them jumping the fence. Arellano managed to
stow the two guard dogs in her laundry room, but they broke free and one of the
guard dogs attacked one of Arellano’s dogs in the yard. When Arellano went to
intervene, the attacking guard dog bit Arellano and injured her big toe. An
ambulance took Arellano to the hospital, while Animal Control took custody of the
guard dogs. Eventually, Animal Control determined that K-9 owned the dogs.
Arellano brought this action, asserting a statutory damages claim for strict
liability against K-9. Arellano’s complaint requested a jury trial. The trial court
entered summary judgment for K-9, determining, as a matter of law, that
Arellano’s actions, albeit well intentioned, constituted an “intervening, superseding
proximate cause,” thereby relieving K-9 from any liability to Arellano. The trial
court also entered a $7,615.36 judgment taxing costs against Arellano. Arellano
timely appealed both the summary judgment (case number 3D15-2609) and the
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cost judgment (case number 3D16-314); we consolidated the appeals. We reverse
both judgments.
II. Analysis2
Arellano’s claim against K-9 is founded upon Florida’s dog bite statute that
reads, in relevant part, as follows:
The owner of any dog that bites any person . . . 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.
§ 767.04, Fla. Stat. (2011).
As is clear from the statute, a dog owner is strictly liable for the injuries
caused by the dog’s biting of someone; and that owner’s liability is reduced only
by the percentage of the injured party’s comparative negligence that contributed to
the incident.
In this case, the trial court essentially determined that Arellano’s actions
effectively dispossessed K-9 of ownership of the dogs, and broke the chain of
proximate causation so as to relieve K-9 from the strict liability imposed by section
767.04. Put another way, the trial court concluded that K-9 established the
2We review a trial court’s summary judgment de novo. Sierra v. Shevin, 767 So.
2d 524, 525 (Fla. 3d DCA 2000).
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common law defense that Arellano’s damages were caused by an intervening,
superseding cause, rather than by any act or omission of K-9. Thus, the trial court
determined, as a matter of law, that Arellano’s actions as they related to the dogs
reduced K-9’s liability to zero.
The trial court, however, reversibly erred by removing this issue from the
jury and determining it as a matter of law. German-American Lumber Co. v.
Brock, 46 So. 740, 744 (Fla. 1908) (“If the evidence is conflicting, or will admit of
different reasonable inferences, or if there is evidence tending to prove the issue, it
should be submitted to the jury as a question of fact, and not taken from them and
passed upon by the judge as a question of law.”); Plant v. Podesta, 579 So. 2d 285
(Fla. 3d DCA 1991). A jury might very well decide that Arellano’s actions, in
whole or in part, were a proximate cause of the incident, thereby reducing or even
eliminating K-9’s liability. In our view, the statute plainly contemplates the role of
the jury in making this call based on the facts and circumstances of the case.
We are mindful that, in a common law negligence action, summary
judgment is appropriate when the undisputed facts conclusively establish that an
intervening, superseding event – rather than a tortfeasor’s negligence – caused the
plaintiff’s damages. See, e.g., Valdes v. Miami Herald Publ’g Co., 782 So. 2d 470,
471 (Fla. 3d DCA 2001). Arellano’s claim, however, is not one sounding in
negligence; her claim is founded upon section 767.04, which effects the legislative
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purpose of imposing on a dog owner strict liability for dog bite damages. The
statute prescribes a limited exception to such strict liability: the plaintiff’s
comparative negligence.3 Whether and to what extent a plaintiff is comparatively
negligent for her own injuries generally is a fact question for the jury. Goldberg v.
McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975).
III. Conclusion
Genuine issues of material fact exist as to whether, and to what extent, K-9’s
liability for Arellano’s injuries should be reduced because of Arellano’s actions.
We reverse the trial court’s final summary judgment determining that, as a matter
of law, Arellano’s actions reduced to zero K-9’s liability. Therefore, we also
reverse the resulting cost judgment in K-9’s favor. We remand the case to the trial
court for proceedings consistent herewith.
Reversed and remanded.
3The statute provides another limited exception when the dog bite occurs on the
owner’s private property and the owner has posted a “Bad Dog” sign. § 767.04,
Fla. Stat. (2011). We reject K-9’s suggestion that this exception is somehow
applicable to this case.
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