DAVID PARSONS AND MARLA PARSONS v. PATRICIA CULP ( 2021 )

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
DAVID PARSONS and MARLA PARSONS,
Appellants,
v.
PATRICIA CULP,
Appellee.
No. 2D20-600
September 17, 2021
Appeal from the Circuit Court for Highlands County; David V.
Ward, Judge.
Jennifer J. Kennedy of Abbey, Adams, Byelick, & Mueller, L.L.P.,
Saint Petersburg, for Appellants.
Thomas E. Mooney of Mooney Colvin, P.L., Orlando, for Appellee.
LUCAS, Judge.
One March morning in 2016, David and Marla Parsons'
Boston Terrier, Bogey, escaped from his tether in the Parsons'
backyard, chased some egrets, and ran around a nearby dumpster.
Unfortunately, Bogey's escapade coincided with the daily walk
Patricia Culp enjoyed with her Havanese-Maltese, Diamond. As
dogs are wont to do, Bogey ran towards Diamond. And, in canine
wont, Diamond tucked her tail and tried to run. In doing so,
Diamond wrapped her leash around Ms. Culp's ankles, and Ms.
Culp, an elderly lady, fell to the ground, breaking her femur and left
leg.
Ms. Culp filed a claim against the Parsons premised on section
767.01, Florida Statutes (2016), a statute that, in pertinent part,
states "[o]wners of dogs shall be liable for any damage done by their
dogs to a person." The jury returned a million-dollar verdict in Ms.
Culp's favor, and the Parsons now appeal the final judgment
entered against them. The Parsons claim several errors with the
circuit court's trial rulings, which we will address in the order of
how we view their precedence.
I.
Throughout the proceedings leading up to the trial, the
Parsons sought to avoid liability for Bogey's actions by ascribing
liability to Ms. Culp as well as to the manufacturer or retail seller of
Bogey's collar. With respect to Ms. Culp, the Parsons claimed she
was comparatively negligent for her accident for a variety of
2
reasons: when she first noticed Bogey running loose, she drew
closer to the dumpster to gain a better view despite knowing
Diamond did not socialize well with other dogs; when Bogey ran
towards her and Diamond she did not pick up her dog (which
weighed approximately nine pounds); or alternatively, she did not
shorten Diamond's training leash as she had learned during
Diamond's obedience training. As to Bogey's collar, the Parsons
sought to include the retail store they had purchased the collar
from as a Fabre defendant1 and proffered the testimony of a
mechanical engineering expert, who would have opined that the
collar broke because of defective manufacturing.
Before the trial commenced, the circuit court appeared
receptive to allowing these defenses to proceed. However, on the
morning of jury selection, the court granted Ms. Culp's motion in
limine and denied the Parsons' motion for leave to amend their
1 See Fabre v. Marin, 623 So. 2d 1182, 1187 (Fla. 1993)
(holding that apportionment of comparative fault is not limited to
parties to a lawsuit), receded from in part on other grounds by Wells
v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So. 2d 249 (Fla.
1995); Salazar v. Helicopter Structural & Maint., Inc., 986 So. 2d
620, 622 n.1 (Fla. 2d DCA 2007) ("A 'Fabre defendant' is a nonparty
defendant whom a party defendant asserts is wholly or partially
responsible for the negligence alleged.").
3
answer (as well as their requested jury instruction), stating, "The
Defendants' affirmative defense products liability to an unknown
company will not be allowed. . . . So any affirmative defense as far
as products liability to Petco and/or a unknown company . . . for
defective manufacturer is disallowed and that's not going to
happen."
With respect to the comparative negligence defense, on the
fourth day of the trial the presiding judge issued his ruling that the
Parsons could not seek to hold Ms. Culp's alleged negligence
against her. As the court explained:
I don't see where the Court can legally infuse
comparative negligence into a strict liability case. Now, I
understand the defense argument that it's allowed by
Rattet[ v. Dual Security Systems, Inc., 373 So. 2d 948(Fla. 3d DCA 1979)]. Of course, that was a Third DCA
case prior to Jones versus Utica Insurance Company[, 463
So. 2d 1153 (Fla. 1985)]. . . . The Rattet court indicates
that it is appropriate to do so and that comparative
negligence considerations are available under a 767.01
case because they are available under a 767.[0]4 case.
. . . Jones has made clear, and the plaintiff has
continuously argued this, that there's not room in a strict
liability statute for the avoidance of liability on the
grounds of the plaintiff or the owner or some other third
party also contributed to the injury, contributory or
comparative negligence. . . . [B]ut I am not going to allow
for a comparative causation determination by the jury.
Causation is an all-or-nothing proposition. If the plaintiff
4
proves that the defendants' dog acted and that act was
the cause of her injury and that act can be concurring
with another act so long as . . . the defendants' acts
through their dog, so long as the acts of the affirmative or
aggressive act by the defendants' dog contributes
substantially to producing such injury that concurring
cause can't happen, that doesn't [alleviate] the defendant
of liability.
The court did allow an intervening cause instruction. But as the
court made clear, Ms. Culp's conduct would only be considered as it
pertained to causation of her injuries, not as it pertained to
comparative negligence. The verdict form the court ultimately used
asked the jury if there was "an affirmative or aggressive act by the
Parsons' dog which was a legal cause of loss, injury, or damage to
the Plaintiff, Patricia Culp?"
The jury having answered that question in the affirmative, and
the circuit court having entered a judgment on that verdict after
denying the Parsons' motion for new trial and for remittitur, the
Parsons now bring this appeal.
A.
We turn first to the circuit court's decision to preclude the
Parsons from presenting a comparative negligence defense. That
decision stemmed from the court's construction of section 767.01
5
and the case law interpreting it, and so we review this issue de
novo. See Van v. Schmidt, 122 So. 3d 243, 252 (Fla. 2013)
(applying de novo review to a pure question of law (citing Bosem v.
Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla. 2010))); Champagne v.
State, 269 So. 3d 629, 632 (Fla. 2d DCA 2019) ("Questions of
statutory interpretation are reviewed de novo . . . ." (quoting
Eustache v. State, 248 So. 3d 1097, 1100 (Fla. 2018))).
Section 767.01 reads, in its entirety: "Owners of dogs shall be
liable for any damage done by their dogs to a person or to any
animals included in the definitions of 'domestic animal' and
'livestock' as provided by s. 585.01." Florida courts have had
several occasions to interpret section 767.01 over the years, and
stare decisis binds us to follow their analysis. With respect to the
section we are directly concerned with, 767.01, the view of this
statute's relatively succinct statement of dog owners' liability for
their dogs has evolved over the years.
After the statute was first enacted in 1881, the courts in
Florida initially viewed the section as simply having removed the
common law requirement of the owner's scienter or knowledge of
his or her dog's vicious propensities (which, apparently, proved too
6
high a bar to prove in many cases) so that dog owners became
"insurers" for their dog's vicious acts. See Donner v. Arkwright-
Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21, 23-24 (Fla. 1978)
(explaining that sections 767.01 and .04 were enacted in response
to the historic difficulty of proving a dog owner's scienter, which the
English common law had traditionally required); Josephson v.
Sweet, 173 So. 2d 463, 464 (Fla. 3d DCA 1964) ("This statute
[section 767.01] has been interpreted to constitute a dog owner as
an insurer for the acts of his dog. As a result, the common law
requirement of establishing prior knowledge of the owner of the
vicious propensity of the dog was not necessary in order to recover
for injury caused by such dog." (footnote omitted)).
The observation that section 767.01 made dog owners
"insurers" of their dogs was likened to imposing "absolute liability"
that "is not contingent upon a showing of the negligence of the
owner, or scienter." See Brandeis v. Felcher, 211 So. 2d 606, 607
(Fla. 3d DCA 1968) (citing Knapp v. Ball, 175 So. 2d 808, 809 (Fla.
3d DCA 1965), Vandercar v. David, 96 So. 2d 227, 229 (Fla. 3d DCA
1957), and Reid v. Nelson, 154 F.2d 724, 725 (5th Cir. 1946)).
Other courts construed section 767.01 as creating a form of strict
7
liability. See Allstate Ins. Co. v. Greenstein, 308 So. 2d 561, 563
(Fla. 3d DCA 1975) (affirming trial court's decision not to apply
consideration of comparative negligence because "[u]nder the
statutory liability created by Section 767.01, the owner of a dog is
cast virtually in the role of an insurer, and he is strictly liable for
damage done to persons by his dog").
A plaintiff would still need to prove causation, see Bozarth v.
Barreto, 399 So. 2d 370, 370-71 (Fla. 3d DCA 1981) (affirming final
judgment in favor of defendants where "there was . . . sufficient
evidence in the record for the jury to conclude, as it did, that the
plaintiff Evelyn Bozarth's injuries were not proximately caused by
any aggressive or affirmative act directed against said plaintiff by
the defendant’s dog"); that is, the plaintiff would have to show that
the dog's acts were a legal cause of the damage the injured plaintiff
claimed. The role that causation should hold under this
construction of section 767.01, however, created an analytical
challenge—dogs being dogs, when can it be said that a dog's acts
(apart from biting) are the cause of a subsequent injury?
The Florida Supreme Court provided guidance on that issue in
Jones v. Utica Mutual Insurance Co., 463 So. 2d 1153 (Fla. 1985).
8
In Jones, a twelve-year-old boy was injured by a wagon that was
being pulled by a German Shepherd that was, in turn, chasing after
another dog. Id. at 1155. The Florida Supreme Court rejected a
district court of appeal's canine-classification approach to the
causation query by posing some interesting questions:
How is one to determine whether or not an animal's
behavior is sufficiently active, or canine, or dispositive of
the outcome, so as to render the owner liable for its
conduct? When does a dog exercise canine
characteristics? There is simply no way to define or
administer such a standard and the parties would be at a
loss to evaluate when a dog can be found not to have
acted like a dog. Is it meaningful to conclude the dog in
this case was exhibiting canine characteristics when it
chased another dog but acting less like a dog because it
was tied to a wagon? We think not. The trial of a suit for
damages should never degenerate to a battle of experts
giving opinions as to whether a dog exercised canine
characteristics or human characteristics.
Id. at 1156.
The Jones court reaffirmed that section 767.01 "is a strict
liability statute" but offered a caveat about that pronouncement, as
well as a new approach as to how causation ought to be viewed in
these cases:
We reject the view that the legislature intended strict
liability for dog owners in every instance where the
actions of a dog are a factor in an injury. Clearly the
rules of ordinary causation should apply. Thus, an
9
affirmative or aggressive act by the dog is required. This
"affirmative act" requirement is a reasonable safeguard
insofar as it forbids the imposition of liability in cases in
which the animal is merely a passive instrumentality in a
chain of events leading to injury. Even a strict liability
statute should not reach that far. This interpretation is
consistent with the general notion of proximate
causation, since other factors would constitute
superceding or overwhelming causes when the dog is
merely passive or retreating.
Thus, it also cannot be said that liability is only
appropriate when the animal actually touches the
plaintiff, for animals and people can cause injuries in a
variety of ways without actually touching the injured
party. Nor is there room in this strict liability statute for
the avoidance of liability on the ground that the plaintiff
or the owner or some third party also contributed to the
injury. The implications of attempting to administer any
of these alternative standards to this case in an attempt
to distinguish this case on any of those bases would
quickly become mired in metaphysics.
Id. at 1156-57.
The Jones formulary for causation has continued along in
Florida jurisprudence without substantial modification. A dog
owner is virtually an insurer and liable for a non-bite related injury
his or her dog causes if the dog displayed some "aggressive or
affirmative act" that could be said to be a legal cause of the injury.
See Cohen v. Wall, 576 So. 2d 945, 946 (Fla. 2d DCA 1991) ("[I]t is
not necessary to prove that the dog actually touched Mrs. Wall in
10
order to establish liability under section 767.01. It is, however,
necessary to establish an affirmative or aggressive action on the
part of the dog, and to show that such action was the proximate
cause of Mrs. Wall's injuries." (citations omitted)).
B.
So far the decisions we have canvassed are, like the case
before us, cases that arose under section 767.01, where a dog
caused injury to someone, but not by biting them. Section 767.04
is a separate statute, entitled "Dog owner's liability for damages to
persons bitten." This section states:
The owner of any dog that bites any person while
such person is on or in a public place, or lawfully on or
in a private place, including the property of the owner of
the dog, 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. A person is lawfully upon private property of
such owner within the meaning of this act when the
person is on such property in the performance of any
duty imposed upon him or her by the laws of this state or
by the laws or postal regulations of the United States, or
when the person is on such property upon invitation,
expressed or implied, of the owner. However, the owner
is not liable, except as to a person under the age of 6, or
unless the damages are proximately caused by a
11
negligent act or omission of the owner, if at the time of
any such injury the owner had displayed in a prominent
place on his or her premises a sign easily readable
including the words "Bad Dog." The remedy provided by
this section is in addition to and cumulative with any
other remedy provided by statute or common law.
Whatever else he may have done during his escape from the
Parsons' backyard, Bogey never bit Ms. Culp. Her injuries were the
result of a fall, not a bite. If this were a matter of first impression,
we would hold that section 767.04, and the bite-related defenses it
includes, is simply inapplicable to this case. Cf. Ham v. Portfolio
Recovery Assocs., LLC, 308 So. 3d 942, 946-47 (Fla. 2020) ("In
interpreting the statute, we follow the 'supremacy-of-text
principle'—namely, the principle that '[t]he words of a governing text
are of paramount concern, and what they convey, in their context,
is what the text means[]' . . . [and] that 'every word employed in [a
legal text] is to be expounded in its plain, obvious, and common
sense, unless the context furnishes some ground to control, qualify,
or enlarge it.' " (first and fourth alteration in original) (first quoting
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 56 (2012); then quoting Advisory Op. to Governor re
Implementation of Amendment 4, the Voting Restoration Amendment,
12
288 So. 3d 1070, 1078 (Fla. 2020))); Josephson, 173 So. 2d at 465("It is obvious from the careful reading of the two sections that
§ 767.01 was superseded by § 767.04 only in regard to dog bites,
because § 767.04 says 'bite' not injury. It is inconceivable that the
legislature intended bite to be synonymous with injury and as
inclusive.").
We are, however, bound to hold otherwise because the
provisions in sections 767.01 and .04 have come to be intertangled
in our common law. In Rattet v. Dual Security Systems, Inc., 373
So. 2d 948, 949 (Fla. 3d DCA 1979), a car dealership employee
injured himself when guard dogs at the dealership's lot chased him
up a fence. The plaintiff filed separate counts against the security
company that provided the dogs under sections 767.01 and .04.2
2 By the time Rattet came before the Third District, the Florida
Supreme Court had concluded that section 767.04 was a stand-
alone, statutory cause of action that superseded any common law
claim of negligence in circumstances covered by the statute. See
Donner, 358 So. 2d at 24 ("[W]e can only conclude that in making
the dog owner the insurer against damage done by his dog, thereby
supplanting the common law negligence-type action, the legislature
intended to shoulder him with the burden of his animal's acts
except in the specific instances articulated in the enactment where
the dog is provoked or aggravated or the victim is specifically
warned by a sign."); Carroll v. Moxley, 241 So. 2d 681, 682 (Fla.
1970) ("The contention that Plaintiffs have a cause of action both
13
Id. at 950. The Third District disposed of the plaintiff's section
767.04 claim (because the plaintiff had not been bitten; he fell from
a fence). Id. at 950. The court also affirmed the summary
judgment against the plaintiff's section 767.01 claim because the
dealership had posted "bad dog" signs around the lot. Id. at 950-
51. Although the posting of such signs would constitute a defense
under a section 767.04 dog bite claim, the Rattet court reasoned
that the statutory defenses listed under section 767.04 should also
be available to a section 767.01 claim. Id. at 951. "Holding to the
contrary," the court remarked, "would bring about the absurd
results of (1) having proximate causation being the only defense
available under Section 767.01, and (2) permitting a plaintiff to
recover damages under Section 767.01 despite the fact that he or
she provoked the dog or 'bad dog' signs had been properly posted."
Id. (footnote omitted). And that "would violate the well established
principle that statutes must not be construed so as to produce
under Fla.Stat. s 767.04, F.S.A., and the common law is without
merit. . . . It is concluded that Fla.Stat. s 767.04, F.S.A.,
supersedes the common law, only in those situations covered by the
statute.").
14
unreasonable or ridiculous consequences." Id. (citing 30 Fla. Jur.
Statutes § 122 (1974)).
A decade after Rattet, the Florida Supreme Court addressed a
similar claim when a police officer was injured while investigating a
possible house burglary. See Kilpatrick v. Sklar, 548 So. 2d 215,
216 (Fla. 1989). In trying to sneak up on the burglar in the
backyard, the officer drew the attention of the homeowner's four
Great Danes, who chased him up a wrought iron fence that impaled
the officer’s calf. Id. Consistent with Rattet, the Third District held
that the Fireman's Rule, a defense based in the common law,3 was
not available to the homeowners because sections 767.01 and .04
had supplanted any common law claims or defenses. Id. The
Florida Supreme Court agreed, approved the district court's
decision, and adopted Rattet's rule in its entirety:
We agree with the Third District Court of Appeal in the
instant case that there are no common law defenses to
the statutory cause of action based on sections 761.01
and 767.04, Florida Statutes (1981). . . . We also agree
with the Third District that only those defenses provided
3 See Rishel v. E. Airlines, Inc., 466 So. 2d 1136, 1138 (Fla. 3d
DCA 1985) ("The fireman's rule, as generally framed, provides that
an owner or occupant of property is not liable to a police officer or a
firefighter for injuries sustained during the discharge of the duties
for which the policeman or fireman was called to the property.").
15
by statute under section 767.04 apply. We also agree that
those defenses apply to a claim under section 767.01.
Id. at 218 (emphasis added).
Sklar's holding concerning the applicability of section 767.04
defenses to section 767.01 claims has not been modified or altered
since its issuance.
C.
With this backdrop, we can now turn to the merits of the
Parsons' argument. We do so by first acknowledging that the
circuit judge below faced a dilemma: should the court apply Jones'
pronouncement, "[n]or is there room in this strict liability statute
for the avoidance of liability on the ground that the plaintiff or the
owner or some third party also contributed to the injury," 463 So. 2d
at 1157, or Sklar's holding that the defenses of section 767.04—
which now include comparative negligence—are available in a
section 767.01 claim? Although the judge gave this issue careful
deliberation, we believe the court erred when it deprived the
Parsons of their comparative negligence defense under section
767.04.
16
Granted, Sklar did not purport to recede from Jones. But
Sklar substantively altered the interplay between sections 767.01
and .04, and it did so in a way that had not been contemplated
when Jones was issued. It was, in short, an evolution in the
common law. Cf. Tran v. Bankcroft, 648 So. 2d 314, 316 (Fla. 4th
DCA 1995) ("[H]istorically, tort liability for injuries caused by dogs
has evolved with its very own unique set of statutory and common
law rules."). And Sklar's pronouncement was unequivocal and
unqualified: the defenses of section 767.04, whatever they may be,
are available to defendants in a section 767.01 claim.
Comparative negligence was added to section 767.04 in 1993,
some four years after Sklar, see ch. 93–13, § 1, at 117, Laws of Fla.,
and it is ordinarily assumed that the legislature is aware of the
state of the common law when it enacts or amends a statute. Cf.
Baskerville-Donovan Eng'rs, Inc. v. Pensacola Exec. House Condo.
Ass'n, 581 So. 2d 1301, 1303 (Fla. 1991) ("[S]tatutes should be
construed with reference to the common law, and we must presume
that the legislature would specify any innovation upon the common
law." (citing Ellis v. Brown, 77 So. 2d 845, 847 (Fla. 1955))). In line
with Sklar (and in the absence of a legislative pronouncement of
17
intent to otherwise alter the common law that had developed prior
to the amendment's passage), we conclude that the comparative
negligence defense provided under section 767.04 is available to a
litigant defending against a section 767.01 claim.
It is true, as Ms. Culp points out, section 767.04's defense of
comparative fault, like the other defenses in that section, speaks in
terms of "persons bitten" and "dog bites," which, under an ordinary,
plain meaning of the section's text would not seem applicable to
this case. Section 767.04 has always been rife with references to
dog bites. That was equally true when the Florida Supreme Court
decided Sklar. We have to believe the Sklar court was aware of the
potential linguistic awkwardness of applying the bite-related
section's defenses to non-bite related claims when it adopted
Rattet's rationale. Consistent with Sklar and how our sister district
courts of appeal have viewed its application of sections 767.01 and
.04, we hold that a defendant to a section 767.01 claim is entitled to
present all the defenses, including comparative negligence, that are
set forth in section 767.04. Accord Davison v. Berg, 243 So. 3d 489,
490 n.1 (Fla. 1st DCA 2018) ("The defenses found in section 767.04,
which concerns dog bites, are equally applicable to 'damage' from
18
dogs as set out in section 767.01." (citing Sklar, 548 So. 2d at 218));
Associated Home Health Agency, Inc. v. Lore, 484 So. 2d 1389, 1390
(Fla. 4th DCA 1986) (citing Rattet and noting that the statutory
defenses of section 767.04 applied to an action under section
767.01).
Our dissenting colleague would prefer not to follow Sklar.
While acknowledging that we, as a lower court, should not "lightly
brush aside the contents of an opinion of the Florida Supreme
Court," that is precisely what the dissent does. For if
pronouncements such as those in Sklar can be waved away as dicta
by an inferior tribunal, we may find ourselves having to frequently
repeat our own holdings lest the trial courts creatively construe out
of existence any of our legal rules with which they may not agree.
That is not how our system of judicial review should work. As a
lower court, we must leave it to the Florida Supreme Court to clarify
or recede from what it pronounced in Sklar, should it ever choose to
do so. See Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973) ("To
allow a District Court of Appeal to overrule controlling precedent of
19
this Court would be to create chaos and uncertainty in the judicial
forum, particularly at the trial level.").4
4 Ironically, Lewis v. State, 34 So. 3d 183, 186 (Fla. 1st DCA
2010), a case cited by the dissent for the proposition that we can
bypass unequivocal legal pronouncements from the Florida
Supreme Court so long as we construe them as "dicta" actually
illustrates why we should be circumspect about what we append
the "dicta" label to, if one follows the course of the issue in Lewis to
its conclusion. In Lewis, the First District determined that the
Florida Supreme Court's statement in Brooks v. State, 918 So. 2d
181 (Fla. 2005), "that aggravated child abuse cannot serve as the
underlying felony in a felony murder charge if only a single act led
to the child's death was not a holding in the case," because the
Brooks court ultimately affirmed the defendant's conviction. Id. at
186. Brooks' pronouncement about felony murder based on
aggravated child abuse was "immaterial to the outcome of the case,"
the First District opined, and so the court did not feel compelled to
follow the rule announced in Brooks (though the Lewis opinion did
go on to provide an alternate rationale in case the statement in
Brooks was not dicta).
Two years after Lewis, the Florida Supreme Court issued State
v. Sturdivant, 94 So. 3d 434 (Fla. 2012). Sturdivant devoted a
substantial amount of analysis explaining why what the Lewis
court had dismissed as "dicta," was, in fact, a wrongly decided
holding—which the court then receded from. Id. at 440-42. "In
light of the nature of the merger doctrine and the plain language of
the Florida felony-murder statute, we agree with Justice Lewis's
dissent in Brooks that the holding was contrary to the plain
language of the statute and legislative intent." Id. at 441. Nowhere
in Sturdivant did the court suggest its prior statement in Brooks
had been dicta. To the contrary, what the district court of appeal
had deemed dicta of the Florida Supreme Court, the Florida
Supreme Court held was an erroneous holding.
20
II.
Our view of how this facet of the law has developed leads us to
conclude that the circuit court properly excluded the Parsons'
proffered Fabre defense. Again, the premise that sections 767.01
and .04 supplanted common law negligence claims in cases within
the statutes' ambit is well settled. See Sklar, 548 So. 2d at 218;
Donner, 358 So. 2d at 23-24; Carroll, 241 So. 2d at 682; Huie v.
Wipperfurth, 632 So. 2d 1109, 1111 (Fla. 5th DCA 1994) ("[T]he
supreme court consistently has reaffirmed the principle that
chapter 767 supersedes the common law in actions against dog
owners for injuries caused by their dogs."); see also Reed v. Bowen,
512 So. 2d 198, 199 (Fla. 1987) ("[S]ection 767.04 makes the dog
owner an insurer against damage caused by his dog, subject to
certain enumerated exceptions, thus modifying the common law
basis for recovery grounded in negligence, and superseding
common law defenses."); Belcher Yacht, Inc. v. Stickney, 450 So. 2d
1111, 1113 (Fla. 1984) ("Carroll and Donner, decided thirteen and
five years ago, respectively, placed the legislature on notice that
section 767.04, Florida Statutes, enacted in 1949, superseded the
common law on dog bites. There has been no action by the
21
legislature to amend this law and we are not disposed to revisit the
issue."). Only those defenses set forth under section 767.04—
which, under Sklar, have become applicable to section 767.01
claims—are available to avoid the "absolute" or "strict" liability
section 767.01 imposes. See Donner, 358 So. 2d at 26; Davison,
243 So. 3d at 490 & n.1; Huie, 632 So. 2d at 1112; see also
Arellano v. Broward K-9, 207 So. 3d 351, 353 (Fla. 3d DCA 2016)
("Arellano's . . . claim is founded upon section 767.04, which effects
the legislative 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.").
Ms. Culp points out, correctly, that section 767.04 does not
include a third-party or Fabre defense in its text. And the statute
that governs allocation of fault to nonparties, section 768.81(3)(a),
Florida Statutes (2016), includes the preface, "[i]n a negligence
action"—which, under Florida precedent, is not the cause of action
at issue here. Thus, she argues, a third party's alleged comparative
fault is not a lawful defense to her section 767.01 claim. Her point
is well taken.
22
If the legislature wishes to include the negligence of third-
party defendants as a statutory defense to dog-related injury
claims, it is free to do so. We, however, cannot. See State v. Burris,
875 So. 2d 408, 413-14 (Fla. 2004) ("To construe the statute in a
way that would extend or modify its express terms would be an
inappropriate abrogation of legislative power." (citing Holly v. Auld
450 So. 2d 217, 219 (Fla. 1984))); Nationwide Mut. Fire Ins. Co. v.
Hild, 818 So. 2d 714, 718 (Fla. 2d DCA 2002) ("[T]his court cannot
alter or amend the plain language chosen by the legislature."); Huie,
632 So. 2d at 1112 (Fla. 5th DCA 1994) ("[U]ntil the legislature
mandates otherwise, section 767.04 supersedes the common law
and provides both the exclusive remedy and defenses in a dog-bite
action."). The circuit court correctly excluded this defense (and the
evidence related to it) from the jury's consideration.
III.
Lastly, we will address an evidentiary issue concerning
economic damages that arose during the trial. The Parsons claim
the circuit court erred when it permitted Ms. Culp to admit into
evidence invoices showing the entire amount her providers billed
Medicare for her past medical expenses, rather than the reduced
23
amount these providers actually accepted. The difference between
the two amounts, $47,882.32 versus $151,000.01, totaled
$103,117.69. Notably, the jury was not tasked with determining
the amount of Ms. Culp's past medical expenses in its verdict.
Following the circuit court's ruling on the bills' admissibility, the
parties stipulated to the amount of past medical expenses Ms. Culp
would be entitled to recover. Thus, the issue here is purely
evidential. The Parsons maintain that the erroneous admission of
these bills may have impacted the jury's award of noneconomic
damages and that, therefore, they are entitled to a new trial. That
is an issue we review for abuse of discretion. Lively v. Grandhige,
313 So. 3d 917, 919 (Fla. 2d DCA 2021) ("Generally, we review the
denial of motion for new trial under the abuse of discretion
standard . . . ."); Pena v. Vectour of Fla., Inc., 30 So. 3d 691, 692
(Fla. 1st DCA 2010) ("Trial court rulings on motions for new trial are
given great deference on appeal. The possibility of reasonable
disagreement does not constitute an abuse of discretion." (citations
omitted)).
The basis of the Parsons' argument derives from our holding in
Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA
24
2004). In Johnson, we held that "the appropriate measure of
compensatory damages for past medical expenses when a plaintiff
has received Medicare benefits does not include the difference
between the amount that the Medicare providers agreed to accept
and the total amount of the plaintiff's medical bills." Id. at 960. We
further stated that the trial court in Johnson "should have granted
the appellants' motion in limine and prohibited Johnson from
introducing the full amount of her medical bills into evidence." Id.Ms. Culp counters that the Florida Supreme Court, in Joerg v.
State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247, 1253
(Fla. 2015) (holding that evidence of eligibility for future benefits
from Medicare, Medicaid, and other social legislation was
inadmissible because "Medicare benefits are both uncertain and a
liability . . . due to the right of reimbursement that Medicare
retains"), "abrogates this [c]ourt's decision in Johnson with regard to
its treatment of Medicare recipients." Alternatively, she argues, the
admission of these medical bills was harmless given the facts of this
case.
After the trial in this case had concluded (and after the
Parsons filed their initial brief in this appeal), we addressed this
25
very issue in Dial v. Calusa Palms Master Ass'n, 308 So. 3d 690(Fla. 2d DCA 2020). In Dial, we concluded that Joerg's holding was
confined to the admissibility of evidence concerning a plaintiff's
future medical expenses covered by Medicare. Id. at 691. We
observed that our foundational concern in Johnson—"that plaintiffs
ought not to receive a windfall to recover the purported value of
past medical 'expenses' that were never paid"—was not addressed
in Joerg. Id. at 692. We need not restate the entirety of Dial's
holding and rationale. Since essentially the same argument about
Joerg's purported abrogation of Johnson was presented in Dial, the
same result in Dial obtains here. The circuit court should not have
allowed the bills of past medical expenses for the jury’s
consideration when those bills were paid at a reduced amount by
Medicare.5
But the Parsons ask us to now go a step further. Although
neither Johnson nor Dial ordered a new trial following the
5 At the conclusion of the Dial opinion, we certified a question
of great public importance concerning this issue. 308 So. 3d at
692. On April 26, 2021, the Florida Supreme Court accepted
jurisdiction of Dial. Dial v. Calusa Palms Master Ass'n, SC21-43,
2021 WL 1604008, at *1 (Fla. Apr. 26, 2021).
26
evidentiary error of admitting the unreduced past medical bills, the
Parsons contend we should do so here. On the facts of this case,
we find that is a step too far.
The jury was never called upon to determine the amount of
past medical expenses at the trial in this case. Nor was any
suggestion made to the jury that they ought to ascribe noneconomic
damages in some proportion to their award of economic damages.
The manner in which the two issues—economic and noneconomic
damages—were presented appeared to keep them separate from
each other. And the past medical bills were never elaborated upon
during closing statements. In reviewing the entirety of the record,
then, we do not believe the admission of these bills impacted the
remainder of the jury's verdict in this case such that the circuit
court abused its discretion when it denied the motion for new trial.
See Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028, 1034 (Fla.
2d DCA 2017) ("[I]n order for an appealing party to be successful in
a challenge to a judgment based on 'the improper admission or
rejection of evidence,' the appellate court must conclude 'after an
examination of the entire case . . . that the error[s] complained of
ha[ve] resulted in a miscarriage of justice." (second and third
27
alterations in original) (quoting Fla. Inst. for Neurologic Rehab., Inc.
v. Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006))).6
IV.
The circuit court was correct when it precluded the Parsons
from presenting the alleged manufacturing defect of Bogey's collar
to the jury for apportionment of a third party's fault. But the
6 Nor do we find this evidentiary error to have been harmful,
such that reversal for an entirely new trial is necessary. We
recognize that under Special v. West Boca Medical Center, 160 So.
3d 1251, 1256 (Fla. 2014), "the responsibility for proving harmless
error remains with the beneficiary of the error, who must
demonstrate that there is no reasonable possibility that the error
contributed to the verdict," but for the reasons we have already
relayed, we do not believe the error of admitting these documents
rose to that level of harm. See § 59.041, Fla. Stat. (2016) ("No
judgment shall be set aside or reversed, or new trial granted . . . on
the ground of . . . the improper admission or rejection of evidence
. . . unless in the opinion of the court to which application is made,
after an examination of the entire case it shall appear that the error
complained of has resulted in a miscarriage of justice.").
Admittedly, as was discussed during oral argument, none of us can
peer into the jury room to discern for certain what, if any, impact
this evidence may have had. But that is true in all jury trials where
an evidentiary error was made. We do not read Special's burden as
imposing that extraordinary kind of showing onto appellees—which,
in truth, would be nearly impossible to ever satisfy. Rather, we
must simply take the record we have and, from the vantage we
hold, answer the question Special poses. We have endeavored to do
so here and conclude, on this record, that it was not an abuse of
discretion for the circuit court to deny the Parsons' motion for new
trial, and the erroneous admission of these bills did not contribute
to the jury's verdict.
28
deprivation of the Parsons' comparative negligence defense
necessitates reversal for a new trial on that issue. We do not
believe the erroneous admission of Ms. Culp's past medical bills
necessitates a new trial on any other issues. We therefore reverse
the court's judgment with respect to the issue of comparative fault
and remand this case for a new trial that will be limited solely to
that issue. See Barrientos v. Hyre, 805 So. 2d 981, 982 (Fla. 2d
DCA 2001) ("The error requiring a new trial affected only the issue
of comparative fault, and the new trial must be limited to that
issue." (citing Nash v. Wells Fargo Guard Servs., 678 So. 2d 1262,
1263-64 (Fla. 1996))); Philip Morris USA, Inc. v. Martin, 262 So. 3d
769, 777 (Fla. 4th DCA 2018) (noting that "it is well established that
a reversal based on a comparative fault error does not affect or
require a new trial on a jury's determination of compensatory
damages" but "[i]nstead such an error simply requires a remand for
apportionment of fault" and citing cases). Accordingly, we reverse
the judgment below and remand this case for further proceedings
consistent with this opinion.
Affirmed in part; reversed in part; remanded with directions.
29
LABRIT, J., Concurs.
ATKINSON, J., Concurs in part and dissents in part.
ATKINSON, J., Concurring in part and dissenting in part.
I agree with the majority that, according to a proper
interpretation of sections 767.04 and 767.01, Florida Statutes
(2016), the statutory defenses set forth in the former—the dog-bite
statute—should not apply to causes of action brought under the
latter—the dog-damage statute. The majority is also correct to note
that the Florida Supreme Court has pronounced that the statutory
defenses in section 767.04 do apply to a claim brought under
section 767.01. See Kilpatrick v. Sklar, 548 So. 2d 215, 218 (Fla.
1989). However, unlike the majority, I do not believe that the
pronouncement in Sklar compels us to apply section 767.04's
comparative negligence defense to causes of actions brought under
section 767.01. While district courts of appeal are bound by
"controlling precedents set by the Florida Supreme Court," State v.
Lott, 286 So. 2d 565, 566 (Fla. 1973) (emphasis added), the
pronouncement in Sklar that the defenses in the dog-bite statute
apply to actions brought under the dog-damage statute was dicta,
not binding precedent. See Lewis v. State, 34 So. 3d 183, 186 (Fla.
30
1st DCA 2010) ("[A] pronouncement of law that is ultimately
immaterial to the outcome of the case" is not "part of the holding in
the case" and is "not binding on this court.").
The only defense at issue in Sklar was a common law defense.
The question was whether the Fireman's Rule was an available
"defense for a dog owner regarding a claim for injuries under
section 767.01," Sklar, 548 So. 2d at 215, and none of the statutory
defenses in section 767.04 were at issue. See id. at 218 (holding
that the defense did not apply to the claim because "there are no
common law defenses to the statutory cause of action based on
sections 767.01 and 767.04"). As such, the court's unnecessary
expression of agreement "with the Third District that only those
defenses provided by statute under section 767.04 apply" and "that
those defenses [also] apply to a claim under section 767.01," id.(citing Rattet v. Dual Security Systems, Inc., 373 So. 2d 948 (Fla. 3d
DCA 1979)), was an inessential statement constituting nonbinding
dicta. See Pedroza v. State, 291 So. 3d 541, 546 (2020) ("Any
statement of law in a judicial opinion that is not a holding is
dictum," and a "holding consists of those propositions along the
chosen decisional path or paths of reasoning that (1) are actually
31
decided, (2) are based upon the facts of the case, and (3) lead to the
judgment." (emphasis added) (quoting State v. Yule, 905 So. 2d 251,
259 n.10 (Fla. 2d DCA 2005) (Canady, J., specially concurring))). A
statement in a judicial opinion that is "unnecessary to the
resolution of the issue before the court" constitutes dicta and is "not
controlling judicial precedent." Cirelli v. Ent, 885 So. 2d 423, 427
(Fla. 5th DCA 2004). The statement in Sklar that the statutory
defenses of section 767.04 apply to causes of action brought under
section 767.01 does not have the weight of controlling precedent.
While I would agree that district courts should not lightly
brush aside the contents of an opinion of the Florida Supreme
Court, district courts are not bound to follow those
pronouncements that constitute dicta. Sims v. State, 743 So. 2d
97, 99 (Fla. 1st DCA 1999) ("While dicta from the Florida Supreme
Court may afford welcome guidance, such passages lack the
binding force of precedent." (quoting Davis v. State, 594 So. 2d 264(Fla.1992) (citation omitted))); Horton v. Unigard Ins., Co., 355 So.
2d 154, 155 (Fla. 4th DCA 1978) ("The rule seems to be that dictum
in an opinion by the Supreme Court of Florida, while not binding as
precedent, is persuasive because of its source."), disapproved on
32
other grounds by Dressler v. Tubbs, 435 So. 2d 792, 794 (Fla. 1983);
cf. Estate of Williams v. Tandem Health Care of Fla., Inc., 899 So. 2d
369, 374 (Fla. 1st DCA 2005) (treating language that "was not
dispositive of the issue before the supreme court" as dicta).
It is especially important to recognize that Supreme Court
dicta is merely persuasive when it competes against a contrary,
binding holding of the Supreme Court. Cf. O′Sullivan v. City of
Deerfield Beach, 232 So. 2d 33, 35 (Fla. 4th DCA 1970) ("We
acknowledge that dictum of the Supreme Court in the absence of a
contrary decision by that court should be accorded persuasive
weight by us." (emphasis added) (citing Milligan v. State, 177 So. 2d
75 (Fla. 1965))). As acknowledged by the majority, the
pronouncement in Sklar that the section 767.04 defenses apply to
section 767.01 claims is contrary to the Florida Supreme Court's
earlier Jones opinion, in which the Court held that there is no
"room in this strict liability statute[, section 767.01,] for the
avoidance of liability on the ground that the plaintiff or the owner or
some third party also contributed to the injury." Jones v. Utica Mut.
Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985) (emphasis in original).
The Florida Supreme Court frequently reiterates that it does not
33
overrule itself sub silentio and often admonishes lower courts
against inferring such an overruling of prior precedent based on
dicta in subsequent opinions. See, e.g., F.B. v. State, 852 So. 2d
226, 228–29 (Fla. 2003) (counseling district courts against reliance
on its own dicta that is in conflict with its prior express holdings,
because the "Court does not intentionally overrule itself sub
silentio"); see also Abaddon, Inc. v. Schindler, 826 So. 2d 436, 438
(Fla. 4th DCA 2002) ("[A]lthough this [subsequent Florida Supreme
Court] dicta seems to contradict [a prior holding of the Florida
Supreme Court,] our supreme court has held that '[w]here a court
encounters an express holding from this Court on a specific issue
and a subsequent contrary dicta statement on the same specific
issue, the court is to apply our express holding in the former
decision until such time as this Court recedes from the express
holding.' " (alteration in original) (quoting Puryear v. State, 810 So.
2d 901, 905 (Fla. 2002))); Bessey v. Difilippo, 951 So. 2d 992, 995
n.6 (Fla. 1st 2007) (disregarding subsequent Florida Supreme Court
dicta that contradicted a prior holding of that court) (citing Puryear,
810 So. 2d at 905)); cf. Stevens v. State, 226 So. 3d 787, 792 (Fla.
34
2017); Barthelemy v. Safeco Ins. Co. of Illinois, 257 So. 3d 1029,
1031–32 (Fla. 4th DCA 2018).
It must be noted that the holding of Jones—that comparative
negligence is not available as a defense to an action based on
section 767.01—was addressing the common law defense, because
the statutory comparative negligence defense had not yet been
added to either statute at the time the opinion was issued.
However, because the statutory comparative negligence defense was
added only to section 767.04, the dicta in Sklar—generally
pronouncing that the defenses in section 767.04 apply to claims
under section 767.01—is in irreconcilable tension with Jones's
specific holding that comparative negligence is inapplicable to
claims under section 767.01. The issue on appeal in Sklar had
nothing to do with statutory defenses, but rather the question of
whether a common law defense applied to the statutory cause of
action under section 767.01. Sklar, 548 So. 2d at 215 (addressing
"application of the Fireman’s Rule . . . as a defense for a dog owner
regarding a claim for injuries under section 767.01"). We should
not give more weight to the Sklar opinion's inessential reference to
the applicability of section 767.04 defenses to section 767.01 claims
35
than we do the Florida Legislature's decision to add a comparative
negligence defense only to section 767.04. I am confident, given the
language of its opinion, that the majority would agree that our
fealty must be to the text of the legislative pronouncements we are
interpreting. See Maj. Op. at I.A. (citing Ham v. Portfolio Recovery
Assocs., LLC, 308 So. 3d 942, 946–47 (Fla. 2020) ("In interpreting
the statute, we follow the 'supremacy-of-text principle'—namely, the
principle that 'the words of a governing text are of paramount
concern, and what they convey, in their context, is what the text
means.' " (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 56 (2012))). And while district
courts are bound to apply the holdings of the Florida Supreme
Court, they should not consider themselves bound to follow Florida
Supreme Court dicta that is patently in conflict with the language of
the statutory scheme they are interpreting and that would
constitute a receding from prior Supreme Court precedent sub
silentio. See Garcia v. Dyck-O′Neal, Inc., 178 So.3d 433, 436 (Fla.
3d DCA 2015) ("When the clear and unambiguous language of a
statute commands one result, . . . while dicta from case decisions
might suggest a different result," the language of the statute must
36
be followed.); Sturdivant, 84 So. 3d at 1052 (Rowe, J., dissenting)
("Although dicta from the Florida Supreme Court 'may afford
welcome guidance . . . such passages lack the binding force of
precedent.' In fact, in cases such as this one, where the Legislature
has clearly declared a contrary intent, such dicta must be
disregarded." (emphasis added) (first quoting Sims, 743 So.2d at 99;
and then citing Estate of Williams ex rel. Williams v. Tandem Health
Care of Fla., Inc., 899 So. 2d 369, 374 (Fla. 1st DCA 2005)).
Because we should not apply the dicta in Sklar to the question of
whether the comparative negligence defense in section 767.04
should be applied to cases brought under section 767.01, I would
affirm the judgment of the trial court. I, therefore, respectfully
dissent from the majority opinion to the extent that it reverses the
judgment and remands for a new trial and holds that the trial court
erred by depriving the Parsons of a comparative negligence
defense.7
7 I concur in result only with Part II of the majority opinion
concluding that the circuit court did not err by excluding the
Parsons' comparative fault (Fabre) defense based on the products
liability of a third party because such common law defenses are
inapplicable to claims brought under section 767.01. And I concur
in result only with Part III of the majority opinion concluding that
37
the trial court did not abuse its discretion by denying the Parsons'
motion for new trial based on the admission of evidence of past
medical expenses in an erroneous amount.
38