        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          ERNEST CARNAHAN,
                              Appellant,

                                     v.

                         ROBERT W. NORVELL,
                              Appellee.

                              No. 4D17-3948

                              [April 24, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Janet C. Croom, Judge; L.T. Case No. 56 2013 CA 000979.

   Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, P.A.,
Orlando, and Joseph H. Graves and Matthew M. Thomas of Graves
Thomas Injury Law Group, Vero Beach, for appellant.

  Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for
appellee.

LEVINE, J.

    Appellant was driving along an unlit road at 4:45 a.m. when he collided
with cows that were on the roadway. The nearby gate that enclosed the
cows’ pasture was found open. Appellant sued appellee, the cows’ owner,
under the Warren Act, which establishes liability for owners of livestock.
Under the Warren Act, an owner is liable for injuries due to livestock that
come upon public roads due to the owner’s intentional, willful, careless,
or negligent actions in permitting the livestock to “stray upon” public
roads. See § 588.15, Fla. Stat. (2012). Appellant claimed that the
pasture’s gate was left unlocked and unlatched, which allowed the
livestock to escape and come upon the unlit road he was driving on. After
a trial, the jury found that appellee was not liable under the Warren Act.

   Appellant claims that the trial court erred in granting a motion in limine
barring the introduction of evidence pertaining to prior instances where
appellee’s livestock had escaped their confinement. We find that the trial
court did not err in granting the motion in limine. We also find the other
issues raised to be without merit and affirm without further discussion.
Thus, we affirm the judgment below.

   This court reviews a trial court’s decision to admit or exclude evidence
for abuse of discretion. Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991).
Relatedly, whether an incident is sufficiently similar to be admissible as
prior incident evidence is within the trial court’s discretion. Stephenson v.
Cobb, 763 So. 2d 1195, 1196 (Fla. 4th DCA 2000).

   Pre-trial discovery mentioned multiple instances of appellee’s cows
escaping their pastures. During his deposition, appellee recounted several
such incidents in general that had occurred over his thirty years raising
cows in the area. The reasons for the cows’ escapes were numerous,
including hurricanes, hunters, felled trees, neighbors, and vandals, among
other causes. Notably, none of the previous escapes were the result of
appellee leaving a gate unlocked or unlatched.

   Appellee subsequently moved to limit the introduction of any evidence
pertaining to previous times his cows had escaped from their enclosed
pastures. At the hearing on this motion, the parties discussed only one
specific escape: an incident where appellee’s cows escaped from a different
pasture onto Carlton Road. Based on appellee’s deposition testimony, the
cows had left the pasture when dogs belonging to hunters on a neighbor’s
property scared the cows, causing them to run through or over the fence
encircling their pasture. Only then did those cows make their way onto a
road and become involved in a car collision.

    Appellant only brought to the trial court’s attention the facts and
circumstances regarding the Carlton Road incident. Appellant did not
proffer evidence of any other incidents. Further, neither party even argued
any of the other prior incidents at the hearing, nor did appellant file any
response to the motion challenging the exclusion of all those incidents
from evidence. The trial court granted appellee’s motion in limine,
preventing appellant from introducing evidence of any prior escapes at
trial.

    Appellant, by failing to proffer or argue as to any of the incidents aside
from the one that occurred on Carlton Road, waived his ability to contest
the exclusion of any incident not specifically proffered in the trial court.
See Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla.
4th DCA 2000) (“When the trial court excludes evidence, an offer of proof
is generally necessary if the claimed evidentiary error is to be preserved for
appellate review. Alternatively, if an adequate record of excluded evidence
has been made at the hearing on the motion in limine, it is not necessary
to make an offer of proof at trial.”) (citation omitted). Appellant neither

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proffered evidence as to the other incidents, nor did he argue against their
exclusion at the motion in limine hearing. As such, he failed to preserve
and cannot challenge the exclusion of any incident except the Carlton
Road incident. See id.

   As to the evidence regarding the Carlton Road escape, appellant
preserved his argument, as evidenced by the record of the motion in limine
hearing. See id. However, because that escape was not similar to the
circumstances that led to appellant’s crash and not relevant to the theory
of negligence pursued at trial, the trial court properly excluded the
evidence.

   Another Warren Act case, Prevatt v. Carter, 315 So. 2d 503 (Fla. 2d DCA
1975), is instructive. In Prevatt, like in this case, the appellant was driving
down a dark road and collided with a black cow. Id. at 504. Importantly,
the Second District there noted—and we reiterate here—that the Warren
Act is not a “strict liability” statute, but instead hinges upon a showing of
negligence:

      The mere fact that the defendant’s [livestock] were running at
      large upon the public highway does not justify an inference
      that the defendant intentionally, willfully, carelessly or
      negligently permitted them to so run at large on the highway
      in violation of [the Warren Act].

See id. (quoting Hughes v. Landers, 215 So. 2d 773, 775 (Fla. 2d DCA
1968)) (alterations added).

    In Prevatt, the court determined that the appellant should have been
permitted to introduce evidence that the appellee knew that his cows had
gotten out of the same pasture before as evidence of appellee’s negligence.
Id. at 505-506. However, the instant case differs from Prevatt in several
ways. First, the Carlton Road incident simply did not tend to prove or
disprove appellee’s negligence. Appellee had nothing to do with that
escape; instead, it was dogs belonging to hunters who were on a
neighboring property. As the Second District noted in Prevatt, the mere
fact that livestock escaped does not establish negligence. See id. at 503.
Rather, there must be a nexus to negligence. The Carlton Road escape,
where third parties caused appellee’s cows to leave their pasture, did not
demonstrate any negligence by appellee, even if those escaped cows
ultimately were involved in a car accident.

   Additionally, appellant pursued a specific theory of negligence below:
that appellee was negligent in maintaining his gate, which allowed the

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cows to escape and collide with appellant’s car. In light of this theory, the
only livestock escape evidence appellant identified and proffered to the trial
court was not similar incident evidence that would be probative and
consequently admissible. The Carlton Road incident involved a fence; the
instant case involves a gate. The Carlton Road incident occurred on a
different pasture and the cows escaped onto a different road. Finally, as
discussed above, the Carlton Road breakout was precipitated by the acts
of third parties, not appellee, so it did not tend to prove “careless or
negligent” action. Due to these key differences, the trial court did not
abuse its discretion in excluding the Carlton Road incident evidence. See
Stephenson, 763 So. 2d at 1196 (observing that determinations of whether
incidents are sufficiently similar should be left to the sound discretion of
the trial court).

    Finally, any error in excluding the prior incident evidence was
harmless. As detailed above, none of the proffered evidence actually went
to negligence; as such, its exclusion could not have reasonably contributed
to the verdict. See Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1256
(Fla. 2014). We therefore affirm.

   Affirmed.

TAYLOR and CIKLIN, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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