Rosenfelt v. Hall, 80-10

• Citation: 387 So.2d 544
• Decision Date: 10 September 1980
• Docket Number: No. 80-10,80-10
• Parties: Carolyn ROSENFELT, William Rosenfelt and Fireman's Insurance Company, Appellants, v. Frank S. HALL, Appellee.
• Court: Court of Appeal of Florida (US)

Page 544

387 So.2d 544

Carolyn ROSENFELT, William Rosenfelt and Fireman's Insurance Company, Appellants, v. Frank S. HALL, Appellee.

No. 80-10.

District Court of Appeal of Florida, Fifth District.

Sept. 10, 1980.

Neal P. Pitts and Stephen W. Beik of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.

James R. Lavigne, P. A., Winter Park, for appellee.

COBB, Judge.

The defendant below appeals the granting of a new trial by the trial judge following a jury verdict finding no liability on the plaintiff's claim of injury by a dog pursuant to section 767.01, Florida Statutes (1977). ¹ We reverse.

The facts, construed most favorably for the defendants, were: The plaintiff and his son were test-driving a sports car, which stalled. The plaintiff pushed the car down a hill with the son steering it in an unsuccessful effort to start it. The son turned off of the public street into the defendant's private driveway, coming to a stop about five feet from her garage door. The defendant, Carolyn Rosenfelt, who had been working in her back yard, saw the car pull into her driveway. Since it did not then back out and leave, Mrs. Rosenfelt, with her two dogs, a boxer and a springer spaniel, came to the front yard to investigate.

Mrs. Rosenfelt approached the automobile and asked the son, Mark Hall, what he was doing. As she did so, the plaintiff, Frank Hall, came running across the yard and through the flower bed. He told the defendant in a loud voice to "get the dogs out of here." Mrs. Rosenfelt offered to call the police, and then, apparently, she and Frank Hall engaged in mutual shouting, and plaintiff flailed his arms in the process. He was about fifteen feet away from her at the time. The dogs, which were not leashed, began to bark and snarl at plaintiff.

Hall then began to push the car out of the driveway. While he was doing so, one of the dogs, according to Hall's testimony, leaped on his right leg. He turned and said, "The dog bit me." The defendant responded that the dog was nowhere near him, and Hall retorted, "Well, then, the dog kicked me." The defendant also denied that this had occurred. After this verbal exchange, Hall pushed the car out of the driveway into the street.

At the jury trial the defendants relied, inter alia, on an affirmative defense of provocation, per the provisions of section 767.04, Florida Statutes (1977), and the trial court gave a requested defense instruction in regard to provocation. ² The defendants also contended that any injury to the plaintiff's leg was not caused by the dog. It was agreed by both sides that plaintiff was not bitten. The jury was not given special interrogatories, but rather a general verdict form, to which neither party objected.

After a defense verdict was returned, plaintiff's motion for new trial was granted by the trial judge in a written order, which stated:

The evidence was not sufficient to sustain such a charge to the jury. At best and in the light most favorable to the defendants, the evidence showed that prior to the time that the dog in question jumped on or near plaintiff's leg while he was pushing a car which his son was steering in order to get the car out of the defendants' yard, that the plaintiff came running across the defendants' yard, flailed his arms, and yelled in a very loud voice to the defendant, Carolyn Rosenfelt, to get her two dogs out of there, including the dog in question. There is no evidence that the plaintiff kicked, teased, or shoved the dog in question. (emphasis added).

The issue on appeal is whether the trial judge abused his broad discretion in granting the new trial. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

We are asked, then, to review the legal correctness of the trial court's assumption that the provocation and aggravation referred to in the statute is restricted to acts physically directed to the dog and excludes such acts directed toward the dog's master in the dog's presence. This is a point of law, not a factual determination, and, therefore, the discretion of the trial judge is drastically diminished, if not entirely eliminated. Florida Power Corp. v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967); Boutwell v. Bishop, 194 So.2d 3 (Fla. 1st DCA 1967).

We find no basis for the stringently circumscribed interpretation of careless provocation adopted by the trial court. Surely it was not the legislative intent to punish a dog owner through...