The Week in Torts – Cases from the Week of March 30, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 13
CASES FROM THE WEEK OF MARCH 30, 2018
ERROR TO GRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DOG OWNER ON GROUNDS THAT SIGNS OUTSIDE THE DOG PARK LISTING RULES WARNED PLAINTIFF OF THE RISKS INSIDE–TRIAL COURT ERRED IN FINDING THAT THE DOG PARK RULES SIGNS WERE SUFFICIENTLY EQUIVALENT TO BAD DOG SIGNS, WHICH MAY BE POSTED UNDER A STATUTE TO PRECLUDE LIABILITY.
Davison v. Berg, 43 Fla. L. Weekly D641 (Fla. 1st DCA March 22, 2018):
A woman volunteering at her local humane society volunteered to help take care of a dog park. Three years later, another woman’s canine companion was chasing other dogs when it collided with the plaintiff volunteer, resulting in her suffering a broken leg and requiring extensive medical care. Plaintiff sued the defendant under section 767.01, which imposes liability on dog owners for damages their dogs cause to other persons or animals.
The trial court granted the defendant’s motion for summary judgment for two reasons: First, because the signs outside the dog park sufficiently warned the plaintiff of the risks inside and second, because the plaintiff consented to assume the risk of her potential injuries.
Disagreeing with the summary judgment, the appellate court reversed.
The court observed that section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog’s conduct. The only total defense to liability available in a section 767.01 action, is for a dog owner to have displayed in a prominent place on her premises, an easily readable sign which includes the words “bad dog.” See, section 766.04.
The defendant presented evidence regarding two signs prominently displayed at the dog park entrance entitled “Dog Park Rules.” The rules noted that the dog park use is at the dog owner’s risk and that dogs exhibiting aggressive behavior are not permitted in the park nor was rough play and chasing.
The trial court found that the plaintiff was aware of the two signs which adequately advised her that she entered the dog park at her own risk. However, the purpose of the statutory sign requirement is to give genuine effect to a bonafide notice that a “bad dog” is on the premises. Not every sign–even if seen–is sufficient to put a potential victim on notice that he or she assumes the risk of being on the premises.
Because it was error to find that the dog park rules signs were sufficiently equivalent to the bad dog signs to preclude liability under section 767.01, the court reversed on that basis.
The court also erred in finding assumption of the risk or consent. While the plaintiff was aware that she could be injured in the course of her volunteer work, and there was evidence to show that she was well aware of the dangers, an actual consent or assumption of the risk defense cannot bar liability under these circumstances. Instead, the issue should have been presented to the jury for determination of comparative negligence.
TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR ATTORNEY’S FEES BASED ON PROPOSAL FOR SETTLEMENT WHERE IT DID NOT CONTAIN A LEVEL OF AMBIGUITY THAT WOULD RENDER THE PLAINTIFF “UNABLE TO MAKE AN INFORMED DECISION WITHOUT CLARIFICATION.”
Bright House Networks v. Cassidy, 43 Fla. L. Weekly D654 (Fla. 2nd DCA March 23, 2018):
Five members of the plaintiff’s family filed a one-count complaint for breach of contract against the defendant. Plaintiffs alleged that the defendant was providing cable services to the defendants free of charge, and then all of a sudden began issuing 1099 tax forms for the value of the service. Plaintiffs allege those taxes and charges were costs that they should not have had to bear.
The defendant served a proposal for settlement to the plaintiff. He did not accept it. The plaintiff later amended his complaint to add a count for declaratory judgment. After the trial court entered summary judgment in the defendant’s favor, it filed a motion for attorney’s fees and costs. The proposal defined the offeror as the defendant, and the offeree as one of the plaintiffs (there were multiple).
In the paragraph on relevant conditions, the proposal stated that upon acceptance the “offeree” within ten days would cause the civil action to be dismissed with prejudice as to all claims and then in paragraph 6, said the proposal was intended to settle and otherwise fully resolve all claims asserted.
The trial court denied the defendant’s motion for attorney’s fees finding that there was inherent ambiguity created in light of the strict construction requirement.
The appellate court reversed. It said that a proposal that seeks to resolve all claims identified in the complaint or in a certain count could be sufficient under the rule.
In this case, the court said that the proposal was titled to a single plaintiff and stated that the offeree caused the civil action to be dismissed with prejudice as to all claims and that paragraph 6 defined all claims. The plaintiff had no authority to cause the other plaintiff’s claims to be dismissed, and it was clear that the proposal was made only to him and that the proposal sought to resolve only those claims asserted in the action by the offeree plaintiff, against the offeror defendant.
The only reasonable interpretation of the proposal the appellate court said, was that it was not a joint offer to all plaintiffs and did not require the dismissal of claims by all the plaintiffs. Instead, the proposal was directed only to one plaintiff, and when read as a whole there was no ambiguity that would have affected his decision.
The court reversed and remanded the order denying the defendant’s attorney’s fees, to grant them instead.