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The comparative negligence defense provided under § 767.04, Fla. Stat. is available to a litigant defending against a claim under § 767.01, Fla. Stat. A defendant to a § 767.01, Fla. Stat. claim is entitled to present all the defenses, including comparative negligence, that are set forth in § 767.04, Fla. Stat.
In March 2016, appellants David and Marla Parsons' dog, a Boston Terrier named Bogey, escaped from his tether in the appellants’ backyard. The dog chased some egrets, and ran around a nearby dumpster. Unfortunately, the appellants’ dog’s escapade coincided with the daily walk of appellee Patricia Culp whom she enjoyed with her Havanese-Maltese, Diamond. As dogs were wont to do, appellants’ dog ran towards the appellee’s dog. And, in canine wont, appellee’s dog tucked her tail and tried to run. In so doing, appellee’s dog wrapped her leash around appellee’s ankles, and the latter, an elderly lady, fell to the ground and broke her femur and left leg. Appellee filed a claim against the appellants premised on section 767.01, Florida Statutes (2016), a statute that, in pertinent part, states that owners of dogs shall be liable for any damage done by their dogs to a person. The jury returned a million-dollar verdict in appellee’s favor. With respect to the comparative negligence defense, the trial judge ruled that the appellants could not seek to hold appellee’s alleged negligence against her. Appellants now appeal the final judgment entered against them. They claimed several errors with the circuit court's trial rulings.
Did the trial court err in ruling that appellants could not seek to hold appellee’s alleged negligence against her?
The court affirmed in part the trial court’s decision but reversed with respect to issue of comparative fault and remanded for new trial solely on that issue. Because the court found that a comparative negligence defense provided under § 767.04, Fla. Stat. was available to a litigant defending against a claim under § 767.01, Fla. Stat., imposing liability upon dog owners for damage done by their dogs, it was error for the trial court to prevent appellants, whose dog got loose and ran toward plaintiff's dog, which then wrapped her leash around plaintiff and caused her to fall, from presenting a comparative negligence defense. However, the court held that the trial court properly precluded appellants from presenting the alleged manufacturing defect of their dog's collar to the jury for apportionment of a third party's fault, as § 767.04 did not include a third-party or Fabre defense in its text.