Stickney v. Belcher Yacht, Inc.

• Decision Date: 11 January 1983
• Docket Number: No. 81-2453,81-2453
• Citation: 424 So.2d 962
• Parties: Thomas J. STICKNEY, Jr., Appellant, v. BELCHER YACHT, INC., Belcher Yacht Sales, Inc., Carl Edward Herner and Lloyds Ins. Group, Appellees.
• Court: Florida District Court of Appeals

Page 962

424 So.2d 962

Thomas J. STICKNEY, Jr., Appellant, v. BELCHER YACHT, INC., Belcher Yacht Sales, Inc., Carl Edward Herner and Lloyds Ins. Group, Appellees.

No. 81-2453.

District Court of Appeal of Florida Third District.

Jan. 11, 1983.

Horton, Perse & Ginsberg and Edward Perse, James F. Dougherty, Miami, for appellant.

Fowler, White, Burnett, Hurley, Banick & Strickroot and James L. Dennis, Miami, for appellees.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

Appellant Stickney commenced this action seeking to recover damages for injuries suffered when he was bitten by Belcher's dog. The complaint stated both statutory and common law causes of action. This appeal is taken from a Final Judgment entered on defendant's Motion for Directed Verdict which was granted at the conclusion of all the evidence in a jury trial.

The questions presented by this appeal are (1) whether by posting a "Beware of Dog" sign an owner of a dog is immune from statutory liability where the dog bites a person lawfully on the owner's property, (2) whether Section 767.04, Florida Statutes (1979) ¹ superseded the common law ² and now provides the exclusive remedy for a dog bite plaintiff.

Appellee Belcher operated a marina where yachts were sold, serviced, docked and stored. The place of business, enclosed by a chain link fence with a rear and front gate, was open seven days a week. Customers coming to the business on Sundays were instructed to use the rear gate near a guardhouse. For years Belcher had kept one or more watchdogs about the premises under control of round-the-clock security guards. The dog involved in this incident was allegedly trained as an attack dog and had been acquired by Belcher some thirty to sixty days earlier. The security guard on duty, appellee-Herner, had been given no instructions or training in the handling of the dog. There was prominently posted on the property a "BEWARE OF DOG" sign.

In the early morning of August 10, 1980, Stickney and some companions went to the Belcher premises to take Stickney's boat out for a fishing trip. He drove his car through the rear gate past the guardhouse and past the security guard, Herner. After boarding the boat Stickney discovered the keys were missing; he walked over to the guardhouse to see if they had been left with the guard, as was customary. As he approached the guardhouse, the dog started to growl. Herner came out of the guardhouse, grabbed the dog by the collar and spanked him on the rear; the dog responded by sitting quietly. As Stickney spoke with Herner the dog suddenly sprang from behind Herner and attacked Stickney, biting him in the crotch causing severe testicle injuries.

Stickney put on evidence tending to show that he was a business invitee who had been on the premises regularly over a period of time; that he was without sufficient knowledge that the dog, relatively new to the premises, was trained to attack; that the dog was on a concealed leash of unreasonable length; that the guard should have, but failed to restrain the dog; that all of the circumstances presented a danger hidden from him.

The first issue--whether an owner is shielded from statutory liability where his dog bites a person lawfully on his property because the owner has erected a prominent "Beware of Dogs" sign--is settled by a number of cases, first of which is Romfh v. Berman, 56 So.2d 127 (Fla.1951). In Romfh, as here, there was proof that the defendant had displayed an easily readable sign in a prominent place bearing the words "Beware of Dogs"; that before entering the premises the plaintiff saw and understood the signs; that the plaintiff had done nothing to provoke or aggravate the dog; and that the dog attacked and bit him. On those facts, the court held:

Since Section 767.04 is the applicable law and it is admitted that the plaintiff was lawfully on defendant's premises, and that he did not provoke the dogs, it would seem that the question here reduces itself to that of whether or not the sign with the words "Beware of Dogs" met the requirement of the statute that the sign bear the words "Bad Dog". The sole purpose of the legend was to put one entering the premises on notice that there were dangerous dogs on the place and it would seem that the legend "Beware of the Dogs" would serve that purpose as well or better than the legend, "Bad Dog".

The later case of Carroll v. Moxley, 241 So.2d 681 (Fla.1970), reiterated the basic holding of Romfh but added a qualification:

In every case, the factual determination must be made whether the "Bad Dog" sign as posted is in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim.

But on this point, the trial court correctly determined that there was no issue of fact. Appellant admitted that he had seen and understood the sign, thus, a directed verdict on the statutory claim was appropriate. See Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979). Compare Flick v. Malino, 356 So.2d 904 (Fla. 1st DCA 1978) (protection for the safety of an adult, who can read and understand a warning sign, is not necessarily protection of an unexpected three-year old child).

The question presented by the second issue is not so well-settled although two supreme court cases hold that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute. ³ Donner v. Arkwright-Boston Manufacturing Mutual Insurance Co., 358 So.2d 21 (Fla.1978); Carroll v. Moxley, 241 So.2d at 682.

Carroll v. Moxley is the first Florida Supreme Court case to hold that the common law on dogbites was superseded by section 767.04, relying on Romfh v. Berman, Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957) and Knapp v. Ball, 175 So.2d 808 (Fla. 3d DCA 1965). Donner v. Arkwright-Boston Manufacturers Mutual acknowledged the holding in Carroll, then addressed the issue presented in that case, i.e., whether the common law defenses such as assumption of risk were superseded by those defenses specifically enunciated in the statute.

The issue in Romfh was only whether in an action brought pursuant to section 767.04, a dog owner was liable to a bite victim lawfully on his property where the owner had a sign conspicuously posted which read "Beware of Dogs" rather than "Bad Dogs". A contention made in Romfh, was that the bad dog sign proviso was in derogation of the common law and should be strictly construed. The court disposed of the contention in a single sentence: "the statute in terms relieves the owner when the posted sign bears the legend 'Beware of Dogs', so there is no reason for construction." In a separate discussion, later recognized as mere obiter dictum, the Romfh court held that section 767.04 (dog bite statute) superseded section 767.01 (applicable statute where dog causes damage by other than bite). One of the cases relied upon by Romfh for the proposition that the statute relieved a plaintiff of a burden to prove scienter is Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196 (1939).

Ferguson is particularly significant for two reasons (1) it was authored by Chief Justice Terrell who also authored Romfh v. Berman, (2) it expressly recognized the simultaneous existence of both a statutory and common law cause of action for a dog bite plaintiff. In Ferguson, suit was filed as a three-count common law action, the first count of which contained no allegation of scienter (owner's knowledge of the dog's vicious propensity), as was required under common law pleadings. It was held, with respect to the first count, that "allegations of scienter were unnecessary since Section 7044, Compiled General Laws of 1927 (predecessor to § 767.04) provides that owners of dogs shall be liable for any damages done by them to ... persons." It was held, alternatively, that even if an allegation of scienter was necessary (the action being one at common law), the second and third counts were ample. The court relied upon an Ohio case, Kleybolte v. Buffon, 89 Ohio St. 61, 105 N.E. 192 (1913), which recognized, inter alia, that a dog bite victim may elect to sue either at common law or pursuant to the statute.

In Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957), the question before the court was whether the defenses of contributory negligence and assumption of risk were available in a statutory action where a dog causes injury by other than a bite. The Vandercar court held, without addressing the question whether section 767.04 supersedes section 767.01, the fact that liability is imposed by statute does not require rejection of a contributory negligence or assumption of the risk defense.

This court observed in Josephson v. Sweet, 173 So.2d 463 (Fla. 3d DCA 1964) that the Romfh court unnecessarily held that section 767.04 superseded section 767.01. Later, the supreme court agreed and expressly receded from the Romfh obiter dictum; it held that section 767.04 supersedes section 767.01 only where the dog-caused injury is the result of a bite. Sweet v. Josephson, 173 So.2d 444 (Fla.1965).

Again in Knapp v. Ball, 175 So.2d 808 (Fla. 3d DCA 1965), the question before this court was whether there were triable issues as to assumption of risk and contributory negligence in an action brought pursuant to section 767.01 for a non-bite, dog-caused injury. Consistent with Vandercar v. David, the court held "the fact that liability is imposed by statute does not require rejection of the [defenses]," but affirmed a summary judgment for the plaintiffs because there were insufficient facts upon which to invoke a defense of assumption of risk.

Returning for the moment to Carroll v. Moxley, it is clear that reliance upon the above cases--for the proposition that the dog bite statute superseded the common law--is misplaced. In fact, the supreme court did not address the question, even indirectly, in any of the cases relied upon by the Carroll court for that...