In a dog bite case, does the term “owner” include a kennel owner or a veterinarian who undertakes care, custody, and control of the dog?

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According to Florida case law as of the date of this article, the term “owner” does not include a kennel owner or a veterinarian who undertakes care, custody, and control of the dog under an agreement with the actual owner.

See: Wipperfurth v. Huie, 654 So.2d 116 (1995)

Duke, The Dog, Bites the Hand That Feeds Him at the Kennel Club

In Wipperfurth, Patricia Huie worked at the Ormond Pet and Kennel Club.  Her boss was Gary Besset.  As part of Patricia’s job, she was to bath the dogs at the Kennel Club, as well as feed them, medicate them as necessary, and exercise them.

Gary Besset was a dog trainer; he provided obedience training.  Patricia was not the Club’s dog trainer.

In January 1990, a Doberman Pinscher named Duke was boarded at the Kennel Club by his owner, Kurt Wipperfurth.  Duke weighed between 60 and 70 pounds.  Patricia was to feed and clean up after Duke.  She was also to walk Duke for exercise.  Patricia knew Duke, and he had never behaved in a hostile or otherwise unusual manner.

On January 30, 1990, while Patricia was walking Duke there at the Kennel Club, he jumped upon her – face to face.  Duke was big enough that he reached her chest and arms.  Patricia told him “No, Off.”  She stepped back with this command.  Duke obeyed, and dropped back to the ground.

Then, when Patricia turned her back to Duke to leave, he jumped up on her again.  This time, he jumped on her back and became aggressive.  Duke bit Patricia several times.  Patricia suffered dog bites on her back as well as her right arm and right shoulder.

As a result of this incident, Patricia Huie demanded damages from Kurt Wipperfurth, as the owner of Duke.  The basis of her claim for damages was Florida Statute 767.04.

No settlement could be reached, and Patricia filed a lawsuit.  At trial, Wipperfurth moved the judge for a “summary judgment,” and his request was granted.

The trial court judge agreed with Wipperfurth’s argument that the dog owner was not liable because the common-law “independent contractor” exception applied.  Independent contractor are not covered by the dangerous instrumentality doctrine.

Patricia appealed this decision.   The case was reversed based upon Florida Supreme Court holdings (Carroll v. Moxley, 241 So.2d 681 (Fla. 1970) and Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla. 1978))  which ruled common-law defenses do not apply to Florida Statute 767.04 cases.  Under Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla. 1984), the term “owner,” as used in Florida Statute 767.04, applied only to the dog’s actual owner.

The case went to the Florida Supreme Court for its consideration.

Florida Supreme Court Decision

In Florida, there is a legal doctrine called “the dangerous instrumentality doctrine” which can be used as a defense in accident cases involving automobiles, trucks, and heavy machinery.  However, the defendant in a dog bite case must also deal with legislation enacted in Chapter 767 of the Florida Statutes.

The Florida Legislature has chosen to make a dog owner’s liability absolute, unless certain exceptions stated in the statutes apply to the situation.

This means that a dog owner cannot assert the dangerous instrumentality doctrine as a valid defense in a dog bite case.  The only defenses that the dog owner can use are those that are listed in Florida Statute 767.04.

Another legal doctrine that exists in Florida is the independent contractor exception.  Wendland v. Akers, 356 So.2d 368 (Fla. 4th DCA 1978), cert. denied,378 So.2d 342 (Fla. 1979).

This is another legal concept that gets replaced by the specific legislative language in Florida Statute 767.04.  The statute means that the independent contractor exception is inapplicable in dog bite cases.

While the results may be harsh in a particular case, the Florida Legislature has spoken and the clear and unambiguous language of the statute must apply.

This means that not only the dog owner is liable under Florida Statute 767.04.  It also means that kennel owners and veterinarians who have undertaken the care, custody, and control of a dog from the dog’s owner, are also controlled by the provisions of Florida Statute 767.04.

Comparing the wording of Florida Statute 767.04, “the owners of any dog,” with the wording of section Florida Statute 767.05, “an owner or keeper of any dog,”  the Florida Supreme Court held that Florida Statute 767.04 does not include a kennel owner or veterinarian who undertakes the care, custody, and control of a dog pursuant to an agreement with the dog’s actual owner.

QUICK FACTS: According to Florida’s Statute of Limitations, you have 4 years from the date of the dog bite injury to file a lawsuit. However, if a death resulted from the bite, the deadline to file a lawsuit is 2 years.

Florida Statute 767.11(7)

Court’s Note:  Effective October 1, 1990, the Florida Legislature enacted Florida Statute 767.11(7), which gives a definition for “owner” for these custodial parties.  The effective date of this new law was subsequent to the facts of Patricia Huie’s case, so it was not applicable.

Florida Statute 767.11(7) will control in future cases.  It defines the owner as “any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person’s parent or guardian.”

This means that in the future, kennel owners and veterinarians will be liable as dog owners under Florida Statute 767.04.

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