Freire v. Leon - 584 So. 2d 98 (Fla. Dist. Ct. App. 1991)

Rule:

Provocation is an affirmative defense that must be proved by a defendant. Thus, where the only defense against a dog-bite claim is that the dog was aggravated by a bitten minor, but none of the evidence supports the provocation defense, a plaintiff is entitled to a directed verdict on the issue.

Facts:

Appellant injured minor brought an action against appellee dog owners for damages inflicted by appellees' dog which bit appellant. The action was premised on Florida's dog-bite statute, section 767.04, Florida Statutes (1989), which, recognizing only two statutory defenses, made the dog owner an insurer against damages caused by his dog's bite. The defense counsel argued at trial that appellant injured minor was not entitled to the protection of the statute because she had mischievously provoked the dog. A jury verdict was entered in favor of the appellee dog owners. The appellant injured minor challenged the decision. 

Issue:

Was the appellant injured minor entitled to a directed verdict on appellee dog owners' affirmative defense of mischievous provocation? 

Answer:

Yes.

Conclusion:

The court rejected appellees' use of one of those defenses, mischievous provocation. The court concluded that there was no evidence in the record from which a provocation by appellant could have been reasonably inferred. Thus, because the undisputed testimony of the witnesses presented absolutely no support for the affirmative defense, the court held that appellant was entitled to a directed verdict on the provocation issue. The court remanded for further proceedings.