Dog bites human: why Florida lawyers should care and what they need to know.

• Author: Coleman, Phyllis

Florida recently recorded the highest average amount ($38,400) per dog bite insurance claim in the country, with 146 payments totaling $5.6 million. (1) While the number of claims nationwide vacillates, the average value of each has climbed higher every year with the aggregate topping $489.7 million in 2012. (2) This article provides a springboard into this dynamic area of law, explaining the general legal principles involved and alerting practitioners to potential pitfalls in the Florida statutes and case law. (3)

The Numbers

Experts estimate that, in one year, dogs bite more than 4.7 million people in the United States. While the numbers vary, approximately 50 percent to 72 percent of the victims are children. (4) The elderly, at around 20 percent, account for the next largest group. Annually, about 800,000 bites require emergency medical treatment. (5) Roughly 16, or only about 0.0002 percent of the total bites, are fatal. (6) Of the reported 78.2 million pet dogs living in 46.3 million U.S. homes in 2012, (7) approximately 11.15 million resided in Florida. (8) Based on these numbers, a relatively recent report states that "[e]very year more than 500 Florida residents are bitten severely enough to require hospitalization, and on average two Floridians die due to injuries sustained from bites by dogs." (9)

Common Law to Strict Liability

English courts created the "one bite rule" several hundred years ago, based on the theory that an individual should be responsible for the damages his or her dog caused. (10) Liability was premised on the guardian's (11) scienter, or knowledge, that his or her animal was dangerous. (12) Consequently, to recover, the plaintiff had to prove that 1) the guardian owned the dog; 2) the animal was dangerous; 3) the guardian knew of his or her dog's propensities because the dog had previously bitten someone else under similar circumstances; and 4) the victim was injured. The guardian could raise the defenses that the victim "provoked" the dog or was unlawfully on the owner's property.

This standard sometimes allowed guardians to escape responsibility unfairly because the injured person could not prove the dog was dangerous or that the guardian knew about the animal's predilection for violence. (13) A Georgia judge explained the theory's primary flaw: "A dog should have no greater right to a first bite than one has to a first murder. And as between the dog owner and a blameless victim, the owner is almost certainly in the better position to judge the dog's proclivity to bite." (14) Thus, the common law rule was problematic because the victim of an animal's first attack had no recourse and the dog's guardian had "little incentive to guard against this potentially deadly event." (15)

Statutory History

The Florida Legislature created Ch. 767 in the 1890s. Dissatisfaction with the common law rule led to the enactment of F.S. [section]767.04, the dog bite provision, in 1949.16 From its inception, this provision imposed strict liability, removing the need for victims to prove the "former viciousness of the dog or the owners' knowledge of such viciousness." Lawmakers served notice that guardians were absolutely responsible for damages their dogs inflicted by biting. Nevertheless, the original enactment allowed a guardian to avoid financial accountability if 1) the person bitten "mischievously or carelessly provoke[d] or aggravate[d] the dog," or 2) "the owner had displayed in a prominent place on his premises a sign easily readable including the words 'Bad Dog.'" (17)

In 1993, this section was revised in three significant ways. First, lawmakers struck the protection based on provocation. Second, they added a comparative negligence provision. While the statute still provides for strict liability, "any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident." (18) As a result, the Fifth District, in Huie v. Wipperfurth, 632 So. 2d 1109 (Fla. 5th DCA 1994), remarked that comparative negligence "replac[ed] the defense of provocation." (19)

The third noteworthy modification was including a statement that strict liability "is in addition to and cumulative with any other remedy provided by statute or common law." (20) This is important because cases interpreting the earlier version of the law determined exactly the opposite--that [section]767.04 was the exclusive means of recovery where the statute applied. (21) Legislators disagreed and, as a result, now dog bite victims in Florida can bring not only an action under the statute, but they can also bring...