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Jones v. Utica Mut. Ins. Co.

Supreme Court of Florida

March 7, 1985

No. 61681


 [*1155]  This is a petition to review Utica Mutual Insurance Co. v. Jones, 408 So.2d 769 (Fla. 2d DCA 1982), which we find expressly conflicts with Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.  The issue concerns the applicability of ] section 767.01, Florida Statutes (1979), which provides that dog owners shall be strictly liable for any damage done by their dogs. The district court held the statute did not apply under the circumstances of this case. We disagree.

Petitioner, Donnie Jones, a twelve-year-old boy, brought this civil action against Roy Davis, the respondent's insured, seeking damages for injuries sustained when he was struck [**2]  by a wagon being pulled by Davis' dog. The accident occurred after Donnie and two other children, one of them Davis' son, had been playing with the dog which they had tied to a small wagon. Davis' dog spotted another dog and ran after it. As the dog ran past Donnie, the wagon struck him causing a permanent injury to his leg.

The suit filed by petitioner was predicated on section 767.01, which provides: "Owners of dogs shall be liable for any damage done by their dogs to persons." The trial court directed a verdict in favor of petitioner on the issue of liability, finding Davis to be strictly liable for petitioner's injury under the statute.  In reversing and holding that section 767.01 did not apply under the facts of this case, the district court noted the well-established rule that "strict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility." 408 So.2d at 771 (quoting Prosser, Law of Torts, 518 (4th ed. 1971)). The court then determined that, based upon a review of the statute's history, the legislature intended to impose strict liability upon a dog owner only for those risks created by [**3]  the act of ownership.  The court expressly held that ] "statutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury." Id. (citing Smith v. Allison, 332 So.2d 631 (Fla. 3d DCA 1976)). In deciding whether a dog directly caused an injury, the district court articulated a test under which a court must determine "whether the injury was caused by some canine characteristic within the contemplation of the statute." Id. 

Applying this test to the facts in this case, the district court found that although the dog exhibited canine characteristics within the contemplation of the statute when it chased the other dog, the act of chasing was not the direct cause of Donnie's injury.  Using a "but for" test, the district court found that had the wagon not been tied to Davis' dog, no injury would have been inflicted because the dog did not come in contact with Donnie. Nor was the dog found to have taken any affirmative or aggressive action toward Donnie. Id. at 772 (citing Rutland v. Biel, 277 So.2d 807, 809 (Fla. 2d DCA 1973), and Smith v. Allison). The district court concluded [**4]  that Donnie's injury was not the result of the risk created by dog ownership, and held that section 767.01 did not apply to create strict owner liability.

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463 So. 2d 1153 *; 1985 Fla. LEXIS 3412 **; 10 Fla. L. Weekly 159

Donald Roy JONES, Petitioner, v. UTICA MUTUAL INSURANCE COMPANY, Respondent


dog, animal, wagon, district court, canine, strict liability, dog owner, causation, injuries, damage done, aggressive, chasing, insured, shotgun, ran

Torts, Strict Liability, Harm Caused by Animals, Statutory Liability, General Overview, Types of Negligence Actions, Animal Owners, Ownership & Possession, Elements, Causation, Causation in Fact, Concurrent Causation, Intervening Causation, Governments, Legislation, Interpretation, Statutory Duties, Civil Procedure, Trials, Jury Trials, Province of Court & Jury, Insurance Law, Claim, Contract & Practice Issues, Premiums, Policy Interpretation, Question of Law