Toole v. Dupuis , 735 So. 2d 582 ( 1999 )

735 So. 2d 582 (1999)

John TOOLE, Appellant,
v.
Richard J. DUPUIS, Appellee.

No. 98-2604.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.

Douglas P. Johnson of Law Offices of Douglas P. Johnson, Fort Lauderdale, for appellant.

John H. Richards, and Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for appellee.

OWEN, WILLIAM C., Jr., Senior Judge.

John Toole sued Richard J. Dupuis for damages, alleging that Dupuis, while driving a vehicle on a public highway, negligently struck and killed Toole's horse. Dupuis denied negligence and, without supporting affidavits or other proof, but relying solely on the argument that sections 588.14 and 588.15, Florida Statutes (1997),^[1] impose strict liability on the owner of livestock running at large on the public roads, sought and obtained a summary judgment in his favor. We reverse.

Florida law is clear that sections 588.14 and 588.15 do not impose strict liability on the owner of livestock astray on the public roads, but require proof that the owner intentionally, willfully, carelessly, or negligently permitted the livestock to run at large or stray upon the public road. See Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996); Selby v. Bullock, 287 So. 2d 18 (Fla. 1973); Dupuis argues that because the above cited cases involved the matter of proof of the owner's negligence where a claimant is seeking damages against the owner, those cases simply are not applicable to one such as this where it is the owner seeking damages against a vehicle driver. That argument is patently without merit. In order for the statute to benefit Dupuis defensively, as he is seeking to have done here, he still must do what these cases so clearly teach—carry the burden to show that the horse was astray due to Toole's intentional or negligent conduct. Obviously, that burden was not met on this motion for summary judgment.

REVERSED.

STEVENSON and HAZOURI, JJ., concur.

NOTES

[1] Section 588.14, Florida Statutes (1997) provides:

Duty of owner.—No owner shall permit live-stock to run at large on or stray upon the public roads of this state.

Section 588.15, Florida Statutes (1997) provides:

Liability of owner.—Every owner of livestock who intentionally, willfully, carelessly, or negligently suffers or permits such livestock to run at large upon or stray upon the public roads of this state shall be liable in damages for all injury and property damage sustained by any person by reason thereof.