ERROR TO GRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DOG OWNER ON GROUNDS THAT SIGNS OUTSIDE THE DOG PARK LISTING RULES WARNED PLAINTIFF OF THE RISKS INSIDE--TRIAL COURT ERRED IN FINDING THAT THE DOG PARK RULES SIGNS WERE SUFFICIENTLY EQUIVALENT TO BAD DOG SIGNS, WHICH MAY BE POSTED UNDER A STATUTE TO PRECLUDE LIABILITY.
Davison v. Berg, 43 Fla. L. Weekly D641 (Fla. 1st DCA March 22, 2018):
A woman volunteering at her local humane society volunteered to help take care of a dog park. Three years later, another woman’s canine companion was chasing other dogs when it collided with the plaintiff volunteer, resulting in her suffering a broken leg and requiring extensive medical care. Plaintiff sued the defendant under section 767.01, which imposes liability on dog owners for damages their dogs cause to other persons or animals.
The trial court granted the defendant’s motion for summary judgment for two reasons: First, because the signs outside the dog park sufficiently warned the plaintiff of the risks inside and second, because the plaintiff consented to assume the risk of her potential injuries.
Disagreeing with the summary judgment, the appellate court reversed.
The court observed that 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. The only total defense to liability available in a section 767.01 action, is for a dog owner to have displayed in a prominent place on her premises, an easily readable sign which includes the words “bad dog.” See, section 766.04.
The defendant presented evidence regarding two signs prominently displayed at the dog park entrance entitled “Dog Park Rules.” The rules noted that the dog park use is at the dog owner’s risk and that dogs exhibiting aggressive behavior are not permitted in the park nor was rough play and chasing.
The trial court found that the plaintiff was aware of the two signs which adequately advised her that she entered the dog park at her own risk. However, the purpose of the statutory sign requirement is to give genuine effect to a bonafide notice that a “bad dog” is on the premises. Not every sign--even if seen--is sufficient to put a potential victim on notice that he or she assumes the risk of being on the premises.
Because it was error to find that the dog park rules signs were sufficiently equivalent to the bad dog signs to preclude liability under section 767.01, the court reversed on that basis.
The court also erred in finding assumption of the risk or consent. While the plaintiff was aware that she could be injured in the course of her volunteer work, and there was evidence to show that she was well aware of the dangers, an actual consent or assumption of the risk defense cannot bar liability under these circumstances. Instead, the issue should have been presented to the jury for determination of comparative negligence.