SUTHERLUND EX REL. SUTHERLAND v. Pell, 98-03372.

• Decision Date: 11 August 1999
• Docket Number: No. 98-03372.,98-03372.
• Citation: 738 So.2d 1016
• Parties: Calie Nicole SUTHERLAND, a minor, by her parents and next friends, Sherri SUTHERLAND and Douglas Sutherland, Appellant, v. Edward L. PELL, Appellee.
• Court: Florida District Court of Appeals

738 So.2d 1016

Calie Nicole SUTHERLAND, a minor, by her parents and next friends, Sherri SUTHERLAND and Douglas Sutherland, Appellant, v. Edward L. PELL, Appellee.

No. 98-03372.

District Court of Appeal of Florida, Second District.

August 11, 1999.

Gwynne A. Young and Eric S. Adams of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, and Sylvia H. Walbolt and Robert E. Biasotti of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., St. Petersburg, for Appellant.

Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee.

ALTENBERND, Judge.

The Sutherlands appeal a summary final judgment entered in favor of Edward Pell. We reverse because the motion for summary judgment, supported only by Mr. Pell's conclusory affidavit, fails to establish that there were no material issues of fact in this dog bite case.

Calie Sutherland and her family were visiting the home of a friend, William Douglas, in March 1994. Calie was three years old at the time. One of Mr. Douglas's two Rottweilers attacked Calie while she was inside Mr. Douglas's home. Mr. Douglas rented his house from Mr. Pell.

On January 14, 1998, the Sutherlands filed their lawsuit against Mr. Pell, alleging the dog that attacked Calie was vicious, and that Mr. Pell, as the landlord, had actual or constructive knowledge of its viciousness. Thus, this dog bite case is based on the common law, not on statutory liability. See § 767.04, Fla. Stat. (1997) (providing statutory liability for dog owners); Vasques v. Lopez, 509 So.2d 1241 (Fla. 4th DCA 1987) (holding that landlord may be liable for tenant's dog if landlord knows dog is vicious and has sufficient control of premises to protect plaintiff); Noble v. Yorke, 490 So.2d 29 (Fla.1986) (stating general proposition that non-owner of dog may be sued under common law).

The record contains no answer or motion to dismiss, although there are references under oath to an answer having been filed on January 22, 1998. The first motion of record is a motion for summary judgment filed by Mr. Pell on March 18, 1998. This motion was supported only by his affidavit, which states that he had "no knowledge, actual, constructive or imputed" as to the nature, behavior, or vicious propensities of the dog that attacked Calie. In April, the Sutherlands filed an affidavit signed by Mr. Douglas stating that (1) Mr. Pell had given him permission to have two Rottweillers on the rental property, (2) Mr. Pell walked by the property on more than one occasion, and (3) Mr. Pell had talked to him on occasions when the dogs were in view. On May 11, 1998, before any depositions or other discovery had occurred, the trial court granted the motion for summary judgment. The Sutherlands filed a motion for rehearing, arguing primarily...