Issue of Leg Broken by Romping Dog Must Go to Jury

Florida’s First District Court of Appeal (“1st DCA”) recently reversed a summary judgment finding that the plaintiff had been adequately warned and assumed the risk of her broken leg while volunteering at a dog park. Deborah Davison sued Rebecca Berg under section 767.01, Florida Statutes, after Berg’s canine collided with Davison while it played and chased other dogs in the park. Davison’s injuries allegedly required extensive medical care.

The Nassau County circuit trial court granted summary judgment in favor of Berg on two equally dispositive bases. First, the trial court concluded that the signs posted at the dog park sufficiently warned Davison of the risks that she might encounter inside. The trial court also concluded that Davison actually consented to or else assumed the risk of potential injuries. The 1st DCA reversed the summary judgment holding that the trial court erred in granting summary judgment on both bases.

As to the signs posted at the dog park, the 1st DCA observed that the only statutory defense to section 767.01 is contained in section 767.04, Florida Statutes, which requires a dog owner to prominently display a sign including the words “Bad Dog.” Although the dog park posted two signs describing the park rules and stating that visitors enter the dog park at their own risk, the 1st DCA held that the signs were not sufficiently equivalent to the “Bad Dog” signage which precludes liability under section 767.04.

As to the Davison’s consent or assumption of risk, the 1st DCA noted that Davison was apparently aware that she could be injured during her volunteer work. Davison had signed an application form acknowledging that she could be exposed to bites, scratches, and other injuries. Davison had also witnessed an incident in which another individual had their leg broken after a canine collision. Notwithstanding Davison’s apparent awareness of the risk, the 1st DCA held that any consent or assumption of risk must be submitted to a jury to make a comparative negligence determination, as required by section 767.04.

For more information see:

Davison v. Berg, 44 Fla. L. Weekly D641 (Fla. 1st DCA Mar. 22, 2018) (which may be accessed at: https://edca.1dca.org/DCADocs/2017/1481/171481_1287_03222018_10102761_i.pdf).

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