Wallace v. Strassel

• Decision Date: 04 December 1985
• Docket Number: No. 84-2222,84-2222
• Citation: 479 So.2d 231,10 Fla. L. Weekly 2667
• Parties: 10 Fla. L. Weekly 2667 Stephen A. WALLACE, Appellant, v. Steven STRASSEL, Stanley A. Guest, et ux., Appellees.
• Court: Florida District Court of Appeals

Page 231

479 So.2d 231

10 Fla. L. Weekly 2667

Stephen A. WALLACE, Appellant, v. Steven STRASSEL, Stanley A. Guest, et ux., Appellees.

No. 84-2222.

District Court of Appeal of Florida Fourth District.

Dec. 4, 1985.

James H. Wakefield, Rosemary B. Wilder and Richard A. Sherman, of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellant.

James T. Sparkman of Hill, Neale and Riley, Fort Lauderdale, for appellees.

GLICKSTEIN, Judge.

This is an appeal from a summary final judgment, in favor of an active tortfeasor against whom a dog owner sought contribution. We reverse and remand.

Stanley Guest was riding down the street on a bicycle when a dog chasing a frisbee ran into his bicycle and knocked him down. The frisbee was thrown by Steven Strassel, who was playing with the dog. The owner of the dog, Steven Wallace, had given Strassel permission to play with the dog.

Guest brought an action against Wallace, as owner of the dog. In his answer appellant Wallace alleged contributory negligence and that Guest's injuries were caused by the negligence of Strassel, over whom appellant had no control. Appellant subsequently filed a third-party complaint for negligence and contribution against Steven Strassel, who threw the frisbee. Third-party defendant Strassel then filed a motion for summary judgment, alleging that appellant was strictly liable for the actions of his dog under section 767.01, Florida Statutes (1983). Guest then moved to amend his complaint to state a cause of action in strict liability under section 767.01.

The trial court granted third-party defendant Strassel's motion for summary judgment and plaintiff Guest's motion to amend. The case then proceeded to trial, and judgment was entered in favor of plaintiff Guest for $60,000.

Appellee initially argues that at the summary judgment hearing appellant failed to argue that strict liability does not bar contribution, and therefore appellant should not be permitted to raise that argument now. Appellant did at least indirectly make the argument by contending that the holding of Jones v. Utica Mutual Insurance Company, 463 So.2d 1153 (Fla.1985), did not bar contribution in this case. Additionally, in a summary judgment case, the party moving for summary judgment must show conclusively that no material issue remains for trial and that there is not material issue of fact. Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977). Until this burden is met the opposing party is under no obligation to show that issues remain to be tried. Howe v. South Broward Hospital District, 345 So.2d 1079 (Fla. 4th DCA 1977). Appellee did not meet his burden.

At the summary judgment hearing the parties spent the majority of the hearing arguing whether the facts of this case were distinguishable from those in Jones v. Utica Mutual Insurance Company. In Jones, a dog was tied to a wagon by a child. The dog saw another dog and began to chase it, causing the wagon to run over another child, resulting in permanent injury to his leg. The court found that the owner of the dog was strictly liable under section 767.01, ¹ stating:

Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog's conduct. Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21, 23 (Fla.1978). The cardinal rule of statutory construction is that plain and unambiguous language in a statute needs no construction and creates the obvious duty to enforce the law according to its terms. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-5 (1918).

....

Thus, it also cannot be said that liability is only appropriate when the animal actually touches the plaintiff, for animals and people can cause injuries in a variety of ways without actually touching the injured party. Nor is there room in this strict liability statute for the avoidance of liability on the ground that the plaintiff or the owner or some third party also contributed to the injury.

Id. at 1156-57.

The trial court granted summary judgment, apparently relying on Jones; but the issue here is not whether the dog owner is liable, but whether the dog owner is entitled to contribution. Jones states that an owner cannot avoid liability on the ground that a third party also contributed to the injury. Appellant is not attempting to avoid liability, rather he is seeking contribution. One would not be entitled to contribution unless he or she were ultimately held liable.

Florida has adopted the Uniform Contribution Among Tortfeasors Act (UCATFA), section 768.31, Florida Statutes (1983), which provides in pertinent part:

(2) Right to contribution,--

(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. ²

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability. ³

Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 143 N.W.2d 230 (1966), is a case cited in Florida Farm Bureau Casualty Company v. Batton, 444 So.2d 1128 (Fla. 4th DCA 1984), for the proposition that so long as the parties have a common liability to the injured person it is no bar to contribution that liability of the parties rests on different grounds. In Farmer's Insurance Exchange, the Minnesota (a non-UCATFA state) supreme court held that even though the liability of one party rested on common-law negligence and the liability of another party rested on the Civil Damage Act (serving alcohol to an intoxicated person), contribution was available:

Contribution rests on common liability, not on joint negligence or joint tort. Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds. Thus it has been held that liability based on F.E.L.A. and liability based on our Wrongful Death Act, even though created by different statutes, may give rise to common liability where a third party is injured by the concurrent violation of both statutes. Zontelli Brothers v. Northern P. Ry. Co. (8 Cir.), 263 F.2d 194, 199. The court there said:

" * * * The thing that gives rise to liability * * * is that both parties were subject originally to a common liability, and one has taken more than his just share of the money burden. * * *

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" * * * There being common liability, the widow, through proper statutory representatives, had a cause of action against both of the contesting parties herein, and her failure to assert formal claim against one did not destroy the right of the other who made full payment to recover by way of contribution."

Again, in Chicago, R.I. & P.R. Co. v. Chicago & N.W. Ry. Co., 280 F.2d 110, 114, the Federal court of the Eighth Circuit had occasion to consider the right to contribution between the two railroads, each of which had violated a different statutory provision for the protection of workmen. The court there said:

" * * * Both actions [for indemnity and contribution] are premised on a finding that two or more parties have been guilty of actionable wrong thereby bringing injury or damage to some third person. * * *

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" * * * The essence of the action for contribution is common liability to the injured person, not liability for common negligence, or similar negligence, or like negligence. Simply stated, common liability means that each party, by reason of his wrongful act, is made legally liable to respond in damages to the injured party. Absent such liability on the part of the person from whom indemnity or contribution is sought, how can it be said, in evoking the equitable remedy, that the one seeking relief has borne an unfair share of the loss for which all are liable?"

There is nothing in section 768.31, Florida Statutes (1983), specifically prohibiting or permitting contribution in such a case. We can think of no policy reason for denying it; and appellee provided us with none. Appellant would still be liable to Mr. Guest for the full amount of the judgment. As to the quote in Jones that section 767.01 "virtually make[s] an owner the insurer of a dog's conduct," even an insurer is entitled to contribution under the Act. ⁴

Peterson v. Tolstow, 184 N.J.Super. 84, 445 A.2d 84 (1982), involves a fact pattern similar to the present case (New Jersey has adopted a version of the UCATFA). The dog's owners were found statutorily liable under a "Dog Bite" statute and the victim's grandparents were found liable for negligent supervision. The grandparents argued on appeal that since the dog's owners had been found liable pursuant to the dog bite statute which supposedly imposed absolute liability upon the owners, this evidenced the Legislature's intent that those found liable under the statute be solely responsible for all damages recovered. The appellate court affirmed the trial court's allowance of contribution, stating:

Further, even if one assumes that N.J.S.A. 4:19-16 imposes absolute liability upon the Tolstows, this does not automatically render them solely responsible for plaintiffs' damages. Among the issues presented in Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 159 A.2d 97 (1960), was whether a statutory wrongdoer could recover contribution from another tortfeasor pursuant to the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 et seq. The answer was yes. 32 N.J. at 79, 159 A.2d 97. A similar result was reached in Tormo v. Yormark, 398 F.Supp. 1159, 1180 (D.N.J.1975). Thus, one who is statutorily...