Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co.

• Decision Date: 06 April 1978
• Docket Number: No. 51996,ARKWRIGHT-BOSTON,51996
• Citation: 358 So.2d 21
• Parties: Jeff DONNER, Petitioner, v.MANUFACTURERS MUTUAL INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, B. R. Styers and Edward F. Brown, Respondents.
• Court: Florida Supreme Court

Page 21

358 So.2d 21

Jeff DONNER, Petitioner, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, B. R. Styers and Edward F. Brown, Respondents.

No. 51996.

Supreme Court of Florida.

April 6, 1978.

Edward A. Perse of Horton, Perse & Ginsberg, and Ratiner & Glinn, Miami, for petitioner.

Robert M. Klein, of Stephens, Schwartz, Lynn & Chernay & Brandy, P.A., Miami, for respondents.

SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of a decision of the District Court of Appeal, Third District, reported at 346 So.2d 1210 (Fla. 3d DCA 1977), which is alleged to be in conflict with our recent opinion in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In Blackburn, this Court held that the defense of assumption of risk has become merged with the doctrine of comparative negligence and no longer constitutes a complete bar to a cause of action. We noted that assumption of risk was not a favored defense and that the "potpourri of labels, concepts, definitions, thoughts, and doctrines" which were indiscriminately applied to the doctrine produced an "enigma wrapped in a mystery." In the instant cause, in which petitioner sustained a dog bite injury, the trial judge instructed the jury on the doctrine of assumption of risk over petitioner's objection. The District Court of Appeal, Third District, affirmed per curiam notwithstanding the principles enunciated in Blackburn, of which the district court was made aware prior to rendition of its decision. Accordingly, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

While visiting respondent Edward F. Brown at his home, petitioner sustained an injury when a dog owned by Brown bit him on the mouth. Respondent Arkwright-Boston Manufacturers Mutual Insurance Company was named as a co-defendant by virtue of the homeowners insurance agreement which it had with Brown.

The dog, a 60-pound female Doberman pinscher, had no prior history of vicious propensities but was in heat at the time the injury was inflicted. When petitioner first made a gesture to pet the animal, which was penned up in the kitchen of the Brown home, he was notified of her condition and also told that she was nervous because it was thundering outside. Consequently, he refrained from touching her. Shortly thereafter, petitioner returned to the location of the kitchen, began stroking the dog on the top of the head and scratching her under the chin, whereupon petitioner was bitten on the lip.

Pursuant to Sections 767.01 and 767.04, Florida Statutes (1975), ¹ petitioner sought damages from respondents. At his jury trial, petitioner moved for a directed verdict on the liability question at the close of all the evidence, which motion was denied. A charge conference was then held at which point counsel for respondents requested charges on the statutory defenses of mischievous or careless provocation or aggravation as well as assumption of risk defense. Petitioner's counsel objected to the giving of the assumption of risk charge, contending that the defense had been merged with the doctrine of comparative negligence in view of this Court's opinion in Blackburn v. Dorta, supra. However, as previously noted, the trial judge ultimately gave the standard jury charge on assumption of risk as well as the charge on the statutory defenses. The jury returned a verdict in favor of respondents and, in accordance therewith, a final judgment for respondents was entered. After his motion for a retrial was denied, petitioner appealed to the District Court of Appeal, Third District, which affirmed per curiam, without opinion, the final judgment.

Petitioner now asks this Court to quash the decision of the District Court of Appeal, Third District, on the ground that the trial court erroneously instructed the jury on the defense of assumption of risk. He contends that the jury should have been charged exclusively on the language of the statutes, which language in no way articulates the assumption of risk doctrine, but which does create statutory defenses where the injured individual "mischievously or carelessly provokes or aggravates" the dog. While petitioner concedes that the statutory defenses would frequently be applied in much the same fashion as the doctrine of assumed risk, he suggests that to continue permitting trial courts to instruct on the common law doctrine will foster confusion. This is asserted because in Blackburn v. Dorta, supra, the doctrine of assumed risk was merged with that of contributory negligence. The latter doctrine it is argued is not applicable to dog bite cases where the action is not grounded in negligence; rather, the owner of a dog acts as a virtual insurer with regard to injuries caused by his dog. Sand v. Gold, 301 So.2d 828 (Fla. 3d DCA 1974); cert. denied 312 So.2d 752 (Fla.1975); Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957). We agree with petitioner that the jury should not have been instructed separately on assumption of risk but should have been charged solely on the defenses expressed in Section 767.04.

Prior to legislative enactment, the common law as adopted by Florida had become well settled regarding the liability of dog owners. In Smith v. Pelah, 2 Strange 1264, 93 Eng.Rep. 1171 (1747), the court proposed that it was a wrong to humanity to maintain a dog known to harbor vicious propensities. The gist of the action was the owner's knowledge of the dog's dangerous inclinations. Conversely, an owner who lacked knowledge of the vicious tendencies of his dog escaped liability. Mason v. Keeling, See 1 Ld.Raym. 606, 608, 91 Eng.Rep. 1305, 1307 (1700). However, it was often difficult and sometimes impossible to prove this element of scienter. ² Accordingly, the Florida Legislature enacted statutes designed to obviate the element of scienter, ³ and make the dog owner the insurer against damage done by his dog. In Carroll v. Moxley, 241 So.2d 681 (Fla.1970), which prior to the instant cause was this Court's latest exposition on the subject statute, ⁴ we held that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute. In that case, the plaintiff entered a store operated by her mother, the defendant. Defendant owned a German shepherd which she kept inside the store. Beside a counter inside was a gate with signs on it warning "Beware of Dog" and "Keep out." While plaintiff knew that the dog had previously bitten a customer, it had always been friendly to her. However, during this latest visit the dog bit her on the face. Plaintiff brought suit under Section 767.04, Florida Statutes, and also under the common law. The trial judge ruled that Section 767.04 superseded the common law and that liability did not lie under the statute since a "Bad Dog" sign was posted. He then entered summary final judgment in favor of defendant and plaintiff appealed to this Court. We stated:

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.

241 So.2d at 682.

The Court then reversed in part the summary judgment finding that there existed a genuine issue of material fact as to whether the sign was posted in a prominent place. Thus, while we held that plaintiff did not have a cause of action under both the statute and the common law, it was unnecessary to expressly state at that time whether the corollary was also true, i. e., whether the common law defenses such as assumption of risk were superseded by those defenses specifically enunciated in the statute. Today we reach that question and find that these common law defenses were so superseded. Consistent with our reasoning in Moxley, supra, we can only conclude that in making the dog owner the insurer against damage done by his dog, thereby supplanting the common law negligence-type action, the legislature intended to shoulder him with the burden of his animal's acts except in the specific instances articulated in the enactment where the dog is provoked or aggravated or the victim is specifically warned by a sign. With regard to those statutory defenses, the legislature apparently felt that good morals dictated that if a person kicks, teases, or in some other way provokes the dog into injuring him, he should not be compensated.

We recognize that our decision today appears to overrule a number of opinions issued by the District Courts of Appeal of this State stating that the doctrine of assumed risk is a valid defense under the statute. See Allstate Insurance Co. v. Greenstein, 308 So.2d 561 (Fla. 3d DCA 1975); Hall v. Ricardo, 297 So.2d 849 (Fla. 3d DCA 1974); Issacs v. Powell, 267 So.2d 864 (Fla. 2d DCA 1972); English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971); Vandercar v. David, supra. However, a careful reading of those cases will show that the defenses asserted, liberally labelled as assumption of risk, were in reality based upon provocation or aggravation of the animal. ⁵ It was precisely this indiscriminate and interchangeable use of the term assumption of risk which we condemned in Blackburn v. Dorta, supra, as creating an "enigma wrapped in a mystery."

The decision which seems to have initiated the proposition that assumption of risk constitutes a valid defense under the statute is Vandercar v. David, supra. In that case, appellee/plaintiff was injured from a fall...