Boswell v. Russell
| Decision Date | 21 June 2002 |
| Docket Number | No. 5D01-1566.,5D01-1566. |
| Parties | April BOSWELL, Appellant, v. Donna RUSSELL, Appellee. |
| Court | Florida District Court of Appeals |
Matthew P. Farmer and Timothy J. Fitzgerald of Farmer & Fitzgerald, P.A. Tampa, for Appellant.
Jeffrey M. Katz of Dalan & Katz, P.L., Clearwater, for Appellee.
April Boswell appeals the final judgment entered in favor of Donna Russell awarding damages for personal injuries incurred by Russell when her vehicle collided on the highway with a bull owned by April Boswell and her husband, Robert Boswell.1 We reverse the judgment entered against Mrs. Boswell and remand for a new trial on the issue of her negligence because the jury was not allowed to consider her alleged negligence separate and apart from the negligence of her husband.
Donna Russell was severely injured when her vehicle collided with a bull on Highway 98 in Hernando County. Russell filed a negligence suit against Robert and April Boswell, alleging that they owned the bull, that the bull had escaped from their property because their fences were in disrepair, and that they were aware of said disrepair. Russell further alleged that the Boswells' failure to keep the bull fenced was the proximate cause of her injuries.
By way of pretrial motion, Russell's attorney sought to prohibit Mrs. Boswell's attorney from arguing and posing questions to prospective jurors which suggested that Mrs. Boswell's liability might be different from that of her husband, arguing that the husband's knowledge relating to the bull would be imputed to Mrs. Boswell since they jointly owned the bull as well as the property on which the bull was kept. The trial court granted Russell's motion and the matter proceeded to trial. Testimony was presented by Russell as to Robert Boswell's alleged knowledge that his cattle previously had been loose and on the highway; however, no evidence was presented that Mrs. Boswell had any such knowledge and she testified that it was her husband's job to take care of the cattle and she possessed no knowledge, related thereto. Robert Boswell did not appear for trial and thus he failed to present any evidence to rebut Russell's case.
At the conclusion of the testimony, Mrs. Boswell requested that the trial court issue a special verdict form which asked the jury on one line whether Robert Boswell was negligent and on a separate line whether she was negligent. The request was denied and the jury returned a general verdict finding that the Boswells (collectively) were negligent and thus jointly liable to Russell for over $4 million in damages.
Mrs. Boswell appeals, arguing that the trial court erred in denying her request for a special verdict form. We agree.
In Florida, the duty owed by the owners of livestock is defined by the Warren Act as follows:
No owner shall permit livestock to run at large on or stray upon the public roads of this state.
§ 588.14, Fla. Stat. (1999). This duty is not subject to strict liability; see Fisel v. Wynns, 667 So.2d 761 (Fla.1996)
; Selby v. Bullock, 287 So.2d 18 (Fla.1973); Toole v. Dupuis, 735 So.2d 582 (Fla. 4th DCA 1999), but rather, liability arises only upon a showing of negligence:
§ 588.15, Fla. Stat. (1999). Thus, under the Warren Act, the mere fact that livestock are present on a public road does not support an inference that the owner intentionally, willfully, carelessly, or negligently permitted them to be there. Instead, such knowledge or negligence must be established. See Beaver v. Howerton, 223 So.2d 62 (Fla. 2d DCA 1969)
; Welch v. Baker, 184 So.2d 188 (Fla. 1st DCA 1966).
Under Florida law, neither the liability nor the knowledge of one spouse can generally be imputed to the other. In Schryburt v. Olesen, 475 So.2d 715 (Fla. 2d DCA 1985), the Second District explained:
Under Florida law, a wife is not liable for her husband's tort when she has no knowledge of his tortious conduct and does not authorize or participate in the act.
Id. at 716. In that case, Mr. and Mrs. Schryburt were accused of committing fraud when they sold their residence without revealing possible structural defects in the home to the buyer. Judgment was entered against the husband and the wife but on appeal the Second District reversed the judgment against the wife noting that, although there was substantial competent evidence to support the finding of liability against the husband, ...
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