       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 30, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D16-314 & 3D15-2609
                         Lower Tribunal No. 13-18732
                              ________________


                                Lisa Arellano,
                                    Appellant,

                                        vs.

             Broward K-9/Miami K-9 Services, Inc., etc.,
                                    Appellee.


      Appeals from the Circuit Court for Miami-Dade County, John Schlesinger,
Judge.

      Colson Hicks Eidson, and Deborah J. Gander, Maureen E. Lefebvre, W.
Allen Bonner and Barbara A. Silverman, for appellant.

     Banker Lopez Gassler, P.A., and Sarah Lahlou-Amine and Mark D. Tinker
(Tampa), for appellee.

Before EMAS, FERNANDEZ and SCALES, JJ.

     SCALES, J.
      Appellant, plaintiff below, Lisa Arellano appeals the trial court’s final

summary judgment determining, as a matter of law, that Arellano’s actions

constituted a superseding, intervening cause, thereby precluding her statutory dog

bite claim against appellee, defendant below, Broward K-9/Miami K-9 Services,

Inc. (“K-9”). Arellano also appeals the trial court’s cost judgment entered against

her in favor of K-9. We reverse because Florida’s dog bite statute imposes strict

liability on dog owners, subject only to a plaintiff’s comparative negligence, which

in this case must be determined by the trier-of-fact.

      I. Facts1

      K-9 supplied two guard dogs to a commercial business located in Miami,

Florida. On a Monday morning, a K-9 employee came to the business to feed and

tend to the dogs, and discovered that the dogs had escaped their fenced yard.

Apparently, the business had been burglarized the night before and the chain-link

fence cut, allowing the dogs to escape into Arellano’s neighborhood.

      Believing that the dogs belonged to one of Arellano’s neighbors, Arellano

fed and sheltered the dogs for about five days, taking steps to find the dogs’ owner.

Specifically, Arellano sent an e-mail to the neighborhood watch group, and

contacted County Animal Services to inquire about reports of missing dogs.


1 When reviewing a summary judgment, we view the facts in a light most favorable
to Arellano, the non-moving party. Markowitz v. Helen Homes of Kendall Corp.,
826 So. 2d 256, 259 (Fla. 2002).

                                          2
      Arellano had two pet dogs of her own. When Arellano allowed the guard

dogs into her fenced yard, she made sure her own dogs remained inside her home.

When Arellano arrived home from work each evening, she let her dogs out into her

yard and secured the guard dogs in her laundry room. On October 21, 2011, the

Friday following the guard dogs’ escape, Arellano arrived home from work to find

the guard dogs missing. She let her two dogs into her yard. The guard dogs soon

returned to Arellano’s home, one of them jumping the fence. Arellano managed to

stow the two guard dogs in her laundry room, but they broke free and one of the

guard dogs attacked one of Arellano’s dogs in the yard. When Arellano went to

intervene, the attacking guard dog bit Arellano and injured her big toe. An

ambulance took Arellano to the hospital, while Animal Control took custody of the

guard dogs. Eventually, Animal Control determined that K-9 owned the dogs.

      Arellano brought this action, asserting a statutory damages claim for strict

liability against K-9. Arellano’s complaint requested a jury trial. The trial court

entered summary judgment for K-9, determining, as a matter of law, that

Arellano’s actions, albeit well intentioned, constituted an “intervening, superseding

proximate cause,” thereby relieving K-9 from any liability to Arellano. The trial

court also entered a $7,615.36 judgment taxing costs against Arellano. Arellano

timely appealed both the summary judgment (case number 3D15-2609) and the




                                         3
cost judgment (case number 3D16-314); we consolidated the appeals. We reverse

both judgments.

      II. Analysis2

      Arellano’s claim against K-9 is founded upon Florida’s dog bite statute that

reads, in relevant part, as follows:

      The owner of any dog that bites any person . . . is liable for damages
      suffered by persons bitten, regardless of the former viciousness of the
      dog or the owners’ knowledge of such viciousness. However, 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.


§ 767.04, Fla. Stat. (2011).

      As is clear from the statute, a dog owner is strictly liable for the injuries

caused by the dog’s biting of someone; and that owner’s liability is reduced only

by the percentage of the injured party’s comparative negligence that contributed to

the incident.

      In this case, the trial court essentially determined that Arellano’s actions

effectively dispossessed K-9 of ownership of the dogs, and broke the chain of

proximate causation so as to relieve K-9 from the strict liability imposed by section

767.04. Put another way, the trial court concluded that K-9 established the


2We review a trial court’s summary judgment de novo. Sierra v. Shevin, 767 So.
2d 524, 525 (Fla. 3d DCA 2000).

                                         4
common law defense that Arellano’s damages were caused by an intervening,

superseding cause, rather than by any act or omission of K-9. Thus, the trial court

determined, as a matter of law, that Arellano’s actions as they related to the dogs

reduced K-9’s liability to zero.

      The trial court, however, reversibly erred by removing this issue from the

jury and determining it as a matter of law. German-American Lumber Co. v.

Brock, 46 So. 740, 744 (Fla. 1908) (“If the evidence is conflicting, or will admit of

different reasonable inferences, or if there is evidence tending to prove the issue, it

should be submitted to the jury as a question of fact, and not taken from them and

passed upon by the judge as a question of law.”); Plant v. Podesta, 579 So. 2d 285

(Fla. 3d DCA 1991). A jury might very well decide that Arellano’s actions, in

whole or in part, were a proximate cause of the incident, thereby reducing or even

eliminating K-9’s liability. In our view, the statute plainly contemplates the role of

the jury in making this call based on the facts and circumstances of the case.

      We are mindful that, in a common law negligence action, summary

judgment is appropriate when the undisputed facts conclusively establish that an

intervening, superseding event – rather than a tortfeasor’s negligence – caused the

plaintiff’s damages. See, e.g., Valdes v. Miami Herald Publ’g Co., 782 So. 2d 470,

471 (Fla. 3d DCA 2001). Arellano’s claim, however, is not one sounding in

negligence; her claim is founded upon section 767.04, which effects the legislative



                                          5
purpose of imposing on a dog owner strict liability for dog bite damages. The

statute prescribes a limited exception to such strict liability: the plaintiff’s

comparative negligence.3 Whether and to what extent a plaintiff is comparatively

negligent for her own injuries generally is a fact question for the jury. Goldberg v.

McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975).

      III. Conclusion

      Genuine issues of material fact exist as to whether, and to what extent, K-9’s

liability for Arellano’s injuries should be reduced because of Arellano’s actions.

We reverse the trial court’s final summary judgment determining that, as a matter

of law, Arellano’s actions reduced to zero K-9’s liability. Therefore, we also

reverse the resulting cost judgment in K-9’s favor. We remand the case to the trial

court for proceedings consistent herewith.

      Reversed and remanded.




3The statute provides another limited exception when the dog bite occurs on the
owner’s private property and the owner has posted a “Bad Dog” sign. § 767.04,
Fla. Stat. (2011). We reject K-9’s suggestion that this exception is somehow
applicable to this case.

                                         6
