Carroll v. Moxley
| Decision Date | 16 September 1970 |
| Docket Number | No. 39246,39246 |
| Citation | 241 So.2d 681 |
| Parties | Leora CARROLL and Martin Carroll, Appellants, v. Virginia E. MOXLEY and Allstate Insurance Company, an Illinois corporation, Appellees. |
| Court | Florida Supreme Court |
Alan R. Schwartz, of Horton & Schwartz and Green & Hastings, Miami, for appellants.
David L. Willing, of Dean, Adams, George & Wood, Miami, for appellees.
This is an appeal from a summary final judgment entered for Defendants and against Plaintiffs in this personal injury action by the Dade County Circuit Court, specifically passing upon the constitutionality of Fla.Stat. § 767.04, F.S.A. We have jurisdiction, Fla.Const., art. V, § 4(2), F.S.A.; F.A.R. 2.1(a)(5), (a), 32 F.S.A.
The challenged statute in this case is part of Title XLIII, Torts, and of Ch. 767, Damage by Dogs. The pertinent portion of the statute, Fla.Stat. § 767.04, F.S.A. provides:
'The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners' knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words 'Bad Dog."
The facts of this case are alleged as follows: Plaintiff, Mrs. Carroll, went into the hardware store owned by her mother, Defendant, Mrs. Moxley, to make purchases and deliver sandwiches. Mrs. Moxley owned a German Shepherd dog which Mrs. Carroll knew had previously bitten a customer, but which previously had been friendly to her. Mrs. Carroll went to a counter to leave the sandwiches. Beside the counter is a gate, with signs on it, 'Beware of Dog' and 'Keep Out.' As Mrs. Carroll stood at the counter, the dog, which had not been previously seen or heard, lunged and bit her on the face. Suit was brought against the dog owner and insurer, on the basis of tort under Fla.Stat. § 767.04, F.S.A., and also common law. The trial judge ruled that Fla.Stat. § 767.04, F.S.A., superseded the common law and that liability did not lie under the statute since a 'Bad Dog' sign was posted. Plaintiffs say the statute is unconstitutional. The trial judge entered summary final judgment in favor of Defendants. This appeal followed.
The contention that Plaintiffs have a cause of action both under Fla.Stat. § 767.04, F.S.A., and the common law is without merit. It has been previously held that the subject statute modified the common law, in that it makes the dog owner the insurer against damage by his dog with certain exceptions, departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So.2d 127 (Fla.1951); Vandercar v. David, 96 So.2d 227 (Fla.App.3rd, 1957); Knapp v. Ball, 175 So.2d 808 (Fla.App.3rd, 1965). It is concluded that Fla.Stat. § 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute.
It is next contended that the statute is unconstitutional, as in violation of the Fla.Const. § 4, Declaration of...
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Marks v. Delcastillo
...question as in the case of one made aware of the fact that dynamite is present only immediately before it explodes. See Carroll v. Moxley, 241 So.2d 681, 683 (Fla.1970); 1661 Corp. v. Snyder, 267 So.2d 362 (Fla.1st DCA 1972); compare Brown v. Thomas Blackwell Coal & Mining Co., 124 Ky. 324,......
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Parsons v. Culp
...claims in cases within the statutes’ ambit is well settled. See Sklar , 548 So. 2d at 218 ; Donner , 358 So. 2d at 23-24 ; Carroll, 241 So. 2d at 682 ; Huie v. Wipperfurth , 632 So. 2d 1109, 1111 (Fla. 5th DCA 1994) ("[T]he supreme court consistently has reaffirmed the principle that chapte......
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Reed By and Through Lawrence v. Bowen, 86-182
...in negligence, by making the dog owner an insurer, with only certain exceptions, against damage caused by his dog. Carroll v. Moxley, 241 So.2d 681 (Fla.1970). The statute supersedes the common law in those situations covered by its provisions, Carroll; see also, Belcher Yacht, Inc. v. Stic......
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Jones v. Utica Mut. Ins. Co.
...I would recede from Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla.1978), and Carroll v. Moxley, 241 So.2d 681 (Fla.1970), to the extent that they hold that chapter 767 superseded the common law in all situations covered by the statute. A reasonable interpr......
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Negligence cases
...liability if an easily readable sign with the words “Bad Dog” is displayed in a prominent place on the premises.”); Carroll v. Moxley , 241 So.2d 681, 683 (Fla. 1970) (“In every case, the factual determination must be made whether the ‘Bad Dog’ sign as posted is in a prominent place and eas......