Parsons v. Culp

• Citation: 328 So.3d 341
• Decision Date: 17 September 2021
• Docket Number: No. 2D20-600,2D20-600
• Parties: David PARSONS and Marla Parsons, Appellants, v. Patricia CULP, Appellee.
• Court: Florida District Court of Appeals

328 So.3d 341

David PARSONS and Marla Parsons, Appellants,

v.Patricia CULP, Appellee.

No. 2D20-600

District Court of Appeal of Florida, Second District.

September 17, 2021

Jennifer J. Kennedy of Abbey, Adams, Byelick, & Mueller, L.L.P., Saint Petersburg, for Appellants.

Thomas E. Mooney of Mooney Colvin, P.L., Orlando, for Appellee.

LUCAS, Judge.

One March morning in 2016, David and Marla Parsons’ Boston Terrier, Bogey, escaped from his tether in the Parsons’ backyard, chased some egrets, and ran around a nearby dumpster. Unfortunately, Bogey's escapade coincided with the daily walk Patricia Culp enjoyed with her Havanese-Maltese, Diamond. As dogs are wont to do, Bogey ran towards Diamond. And, in canine wont, Diamond tucked her tail and tried to run. In doing so, Diamond wrapped her leash around Ms. Culp's ankles, and Ms. Culp, an elderly lady, fell to the ground, breaking her femur and left leg.

Ms. Culp filed a claim against the Parsons premised on section 767.01, Florida Statutes (2016), a statute that, in pertinent part, states "[o]wners of dogs shall be liable for any damage done by their dogs to a person." The jury returned a million-dollar verdict in Ms. Culp's favor, and the Parsons now appeal the final judgment entered against them. The Parsons claim several errors with the circuit court's trial rulings, which we will address in the order of how we view their precedence.

I.

Throughout the proceedings leading up to the trial, the Parsons sought to avoid liability for Bogey's actions by ascribing liability to Ms. Culp as well as to the manufacturer or retail seller of Bogey's collar. With respect to Ms. Culp, the Parsons claimed she was comparatively negligent for her accident for a variety of reasons: when she first noticed Bogey running loose, she drew closer to the dumpster to gain a better view despite knowing Diamond did not socialize well with other dogs; when Bogey ran towards her and Diamond she did not pick up her dog (which weighed approximately nine pounds); or alternatively, she did not shorten Diamond's training leash as she had learned during Diamond's obedience training. As to Bogey's collar, the Parsons sought to include the retail store they had purchased the collar from as a Fabre defendant¹ and proffered the testimony of a mechanical engineering expert, who would have opined that the collar broke because of defective manufacturing.

Before the trial commenced, the circuit court appeared receptive to allowing these defenses to proceed. However, on the morning of jury selection, the court granted Ms. Culp's motion in limine and denied the Parsons’ motion for leave to amend their answer (as well as their requested jury instruction), stating, "The Defendants’ affirmative defense products liability to an unknown company will not be allowed.... So any affirmative defense as far as products liability to Petco and/or a unknown company ... for defective manufacturer is disallowed and that's not going to happen."

With respect to the comparative negligence defense, on the fourth day of the trial the presiding judge issued his ruling that the Parsons could not seek to hold Ms. Culp's alleged negligence against her. As the court explained:

I don't see where the Court can legally infuse comparative negligence into a strict liability case. Now, I understand the defense argument that it's allowed by Rattet[ v. Dual Security Systems, Inc. , 373 So. 2d 948 (Fla. 3d DCA 1979) ]. Of course, that was a Third DCA case prior to Jones versus Utica Insurance Company [, 463 So. 2d 1153 (Fla. 1985) ]. ... The Rattet court indicates that it is appropriate to do so and that comparative negligence considerations are available under a 767.01 case because they are available under a 767.[0]4 case.

... Jones has made clear, and the plaintiff has continuously argued this, that there's not room in a strict liability statute for the avoidance of liability on the grounds of the plaintiff or the owner or some other third party also contributed to the injury, contributory or comparative negligence.... [B]ut I am not going to allow for a comparative causation determination by the jury. Causation is an all-or-nothing proposition. If the plaintiff proves that the defendants’ dog acted and that act was the cause of her injury and that act can be concurring with another act so long as ... the defendants’ acts through their dog, so long as the acts of the affirmative or aggressive act by the defendants’ dog contributes substantially to producing such injury that concurring cause can't happen, that doesn't [alleviate] the defendant of liability.

The court did allow an intervening cause instruction. But as the court made clear, Ms. Culp's conduct would only be considered as it pertained to causation of her injuries, not as it pertained to comparative negligence. The verdict form the court ultimately used asked the jury if there was "an affirmative or aggressive act by the Parsons’ dog which was a legal cause of loss, injury, or damage to the Plaintiff, Patricia Culp?"

The jury having answered that question in the affirmative, and the circuit court having entered a judgment on that verdict after denying the Parsons’ motion for new trial and for remittitur, the Parsons now bring this appeal.

A.

We turn first to the circuit court's decision to preclude the Parsons from presenting a comparative negligence defense. That decision stemmed from the court's construction of section 767.01 and the case law interpreting it, and so we review this issue de novo. See Van v. Schmidt , 122 So. 3d 243, 252 (Fla. 2013) (applying de novo review to a pure question of law (citing Bosem v. Musa Holdings, Inc. , 46 So. 3d 42, 44 (Fla. 2010) )); Champagne v. State , 269 So. 3d 629, 632 (Fla. 2d DCA 2019) ("Questions of statutory interpretation are reviewed de novo ...." (quoting Eustache v. State , 248 So. 3d 1097, 1100 (Fla. 2018) )).

Section 767.01 reads, in its entirety: "Owners of dogs shall be liable for any damage done by their dogs to a person or to any animals included in the definitions of ‘domestic animal’ and ‘livestock’ as provided by s. 585.01." Florida courts have had several occasions to interpret section 767.01 over the years, and stare decisis binds us to follow their analysis. With respect to the section we are directly concerned with, 767.01, the view of this statute's relatively succinct statement of dog owners’ liability for their dogs has evolved over the years.

After the statute was first enacted in 1881, the courts in Florida initially viewed the section as simply having removed the common law requirement of the owner's scienter or knowledge of his or her dog's vicious propensities (which, apparently, proved too high a bar to prove in many cases) so that dog owners became "insurers" for their dog's vicious acts. See Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co. , 358 So. 2d 21, 23-24 (Fla. 1978) (explaining that sections 767.01 and .04 were enacted in response to the historic difficulty of proving a dog owner's scienter, which the English common law had traditionally required); Josephson v. Sweet , 173 So. 2d 463, 464 (Fla. 3d DCA 1964) ("This statute [ section 767.01 ] has been interpreted to constitute a dog owner as an insurer for the acts of his dog. As a result, the common law requirement of establishing prior knowledge of the owner of the vicious propensity of the dog was not necessary in order to recover for injury caused by such dog." (footnote omitted)).

The observation that section 767.01 made dog owners "insurers" of their dogs was likened to imposing "absolute liability" that "is not contingent upon a showing of the negligence of the owner, or scienter." See Brandeis v. Felcher , 211 So. 2d 606, 607 (Fla. 3d DCA 1968) (citing Knapp v. Ball , 175 So. 2d 808, 809 (Fla. 3d DCA 1965), Vandercar v. David , 96 So. 2d 227, 229 (Fla. 3d DCA 1957), and Reid v. Nelson, 154 F.2d 724, 725 (5th Cir. 1946) ). Other courts construed section 767.01 as creating a form of strict liability. See Allstate Ins. Co. v. Greenstein , 308 So. 2d 561, 563 (Fla. 3d DCA 1975) (affirming trial court's decision not to apply consideration of comparative negligence because "[u]nder the statutory liability created by Section 767.01, the owner of a dog is cast virtually in the role of an insurer, and he is strictly liable for damage done to persons by his dog").

A plaintiff would still need to prove causation, see Bozarth v. Barreto , 399 So. 2d 370, 370-71 (Fla. 3d DCA 1981) (affirming final judgment in favor of defendants where "there was ... sufficient evidence in the record for the jury to conclude, as it did, that the plaintiff Evelyn Bozarth's injuries were not proximately caused by any aggressive or affirmative act directed against said plaintiff by the defendant's dog"); that is, the plaintiff would have to show that the dog's acts were a legal cause of the damage the injured plaintiff claimed. The role that causation should hold under this construction of section 767.01, however, created an analytical challenge—dogs being dogs, when can it be said that a dog's acts (apart from biting) are the cause of a subsequent injury?

The Florida Supreme Court provided guidance on that issue in Jones v. Utica Mutual Insurance Co. , 463 So. 2d 1153 (Fla. 1985). In Jones , a twelve-year-old boy was injured by a wagon that was being pulled by a German Shepherd that was, in turn, chasing after another dog. Id. at 1155. The Florida Supreme Court rejected a district court of appeal's canine-classification approach to the causation query by posing some interesting questions:

How is one to determine whether or not an animal's behavior is sufficiently active, or canine, or dispositive of the outcome, so as to render the owner liable for its conduct? When does a dog exercise canine characteristics? There is simply no way to define or administer such a standard and the parties would be at a loss to evaluate when a dog can be found not to have acted like a dog. Is it meaningful to

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