Brandeis v. Felcher

• Court: Florida District Court of Appeals
• Writing for the Court: Before CHARLES CARROLL; SWANN
• Citation: Brandeis v. Felcher, 211 So.2d 606 (Fla. App. 1968)
• Decision Date: 11 June 1968
• Docket Number: No. 67--671,67--671
• Parties: Sol BRANDEIS and Lona Brandeis, his wife, Appellants, v. Philip FELCHER and Mary Yasman, Appellees.

Page 606

211 So.2d 606

Sol BRANDEIS and Lona Brandeis, his wife, Appellants, v. Philip FELCHER and Mary Yasman, Appellees.

No. 67--671.

District Court of Appeal of Florida, Third District.

June 11, 1968.

Rehearing Denied July 3, 1968.

Carey, Dwyer, Austin, Cole & Selwood and Edward A. Perse, Miami, for appellants.

Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for Felcher, appellee.

Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.

SWANN, Judge.

This appeal is by the plaintiffs from a summary final judgment for two of the defendants below, Felcher and Yasman. In determining on appeal whether these defendants carried their burden below of conclusively demonstrating the nonexistence of material issue of fact, we consider the record in the light most favorable to the plaintiffs.

Three children were walking in the City of North Miami, Florida, along a sidewalk separated from the defendant Felcher's backyard by a four foot chain link fence which was parallel to, and right up against, the sidewalk. Felcher was owner of a male, AKC registered, german shepherd dog which he made available for stud service on a referral basis from a local veterinarian. On the date in question, Felcher's dog was loose in the Felcher's backyard for the purpose of stud service to a white female german shepherd owned by the defendant Yasman. As the children were passing, the two dogs suddenly started barking, and charged the fence. Yasman's dog actually put her paws and head over the fense. The children became frightened of an attack and darted away from the fence into the street where an oncoming car struck and fatally injured one of them, the plaintiffs' twelve year old son.

The instant action was then instituted against the dog owners and the driver, among others, for the alleged wrongful death of the plaintiffs' son. The sole question to be determined on this appeal is whether, under Fla.Stat. § 767.01, F.S.A., liability might be imposed upon the owners of the dogs for the boy's death. The driver of the car is not a party to this appeal and the question of liability on his part has not been determined below and is not before us.

Fla.Stat. § 767.01, F.S.A. provides as follows:

'Owners responsible.--Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.'

We begin from the premise that liability for non-bite damages suffered in an attack by a dog is within the contemplation of the statute. Sweet v. Josephson, Fla.1965, 173 So.2d 444. See also Josephson v. Sweet, Fla.App.1964, 173 So.2d 463. It has been said that liability imposed by this section is an absolute liability as an insurer and is not contingent upon a showing of the negligence of the owner, or scienter. See Knapp v. Ball, Fla.App.1965, 175 So.2d 808; Vandercar v. David, Fla.App.1957, 96 So.2d 227, 66 A.L.R.2d 912; Reid v. Nelson, 154 F.2d 724 (5th Cir.1946).

Liability, if any here, depends upon the question of whether the boy's death is damage 'done by' the appellees' dogs, i.e. were the dogs the Cause of the damage complained of by the plaintiffs? Causation is generally a question of fact. See Green, Rationale of Proximate Cause 132 (1927); Prosser, Torts, § 41 at 241 (3rd ed. 1964). See also Sardell v. Malanio, Fla.1967, 202 So.2d 746; Mozer v. Semenza, Fla.App.1965, 177 So.2d 880. The lower court held as a matter of law, that the dogs were not the Cause of the damage. Our problem is to consider whether the dogs' participation in or contribution to the end result was sufficient for a jury to consider the question of liability under Fla.Stat. § 767.01, F.S.A., supra.

Scholars have struggled eternally in their attempts to define the point at which the minimal causal relationship for imposing legal responsibility in tort cases may be said to exist. In the vast majority of cases, where the minimal requirement for causal relationship is not at issue, virtually all formulae for determining causal relationship 'work'. It is only for the few cases in which the minimum causal relationship for legal responsibility is at issue that serious difficulties arise in selecting the proper formula for minimum contribution, and all criteria have been subjected to criticism.

The 'but for' or Sine qua non test has been shown to be vulnerable, particularly in cases of plural, concurring or intervening causes. A Prima descendit origine mundi causarum series. ¹ See e.g. Carpenter, Concurrent Causation, 83 U.Pa.L.Rev. 941, 942 (1935); Prosser, Torts, § 41 at 244 (3rd ed. 1964). Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60, 64--68 (1956).

Professor Green argues that the 'ruffles and decorations so generously bestowed' upon inquiries of cause: 'remote, proximate, direct, immediate, adequate, efficient, operative, inducing, moving, active, real, effective, decisive, supervening, primary, original, contributory, ultimate, concurrent, causa causans, legal, responsible, dominating, natural, probable, and others'--have not simplified the question but have served to make it unduly complex and confusing. Green, Rationale of Proximate Cause 135--6 (1927). Professor Green suggests that the question is, in essence, a simple quantitative one--whether the defendant's conduct was a Material, appreciative, or Substantial factor in producing the plaintiff's injuries. If so, that is Enough to enable the jury to find causation in fact. See Green, Rationale of Proximate Cause, supra, 132--185; Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543 (1962). Prosser, too, favors this test, Prosser, Torts, supra, § 41 at 244, as does Carpenter, supra, Cf. Morris, Proximate Cause in Minnesota, 34 Minn.L.Rev. 185 (19...