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Date: 07-13-2022
Case Style:
STEVEN RAMOS, vs Patricia Bastos and Rios Pet Spa & Boarding, Inc.
Case Number: 21-1276
Judge:
Ivan F. Fernandez
Court:
Third District Court of Appeal State of Florida
On Appeal From The County Court for Miami-Dade County
Linda
Melendez
Judge
Plaintiff's Attorney:
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Defendant's Attorney: Cotzen Law, P.A., and Michael L. Cotzen
Description:
Miami, Florida - Civil Litigation lawyer represented Appellant with appealing the final judgment entered after Ramos’s dog was attacked by another dog.
Steven Ramos appeals the county court’s final judgment entered in
favor of Patricia Bastos and Rios Pet Spa & Boarding, Inc. (collectively,
“defendants”). Because the defendants were not entitled to judgment as a
matter of law, we reverse.
On June 28, 2014, Steven Ramos (“Ramos”) took his dog to a pet
grooming facility operated by Bastos and Rios Pet Spa & Boarding, Inc.
(“Rios Pet Spa”), located in North Miami, Florida. While at the pet grooming
facility, Ramos’s dog was attacked by another dog that was at the facility.
Ramos alleges his dog received an eye injury.
Ramos sued Patricia Bastos (“Bastos”) and Rios Pet Spa in county
court for two counts of negligence. Ramos alleged one count of negligence
against Bastos and stated that as a business invitee, Bastos owed a duty of
care to all business invitees lawfully on the grooming business’s property to
operate the pet grooming service in a manner that avoids injury to person
and property. Ramos alleged Bastos breached that duty of care by allowing
Ramos’s dog to be injured. In Count II, Ramos set forth the same negligence
allegations against Rios Pet Spa.
Thereafter, defendants filed a motion for summary judgment. They
alleged that Ramos’s claims failed because he did not sue an indispensable
party, namely, the owner of the attacking dog. Defendants alleged that under
3
section 767.04, Florida Statutes (2018), the owner of a dog that bites any
person while such person is on or in a public place or lawfully on or in a
private place is liable for the damages suffered. They also claimed that under
section 767.01, the owner of a dog is strictly liable for damages done to
persons or to any animal by his dog.
In May 2021, the county court held a hearing on defendant’s summary
judgment motion and entered summary judgment in favor of the defendant.
1
In the final judgment, the trial court stated that sections 767.01 and 767.04
are strict liability statutes. Consequently, the dog owner was strictly liable for
damages caused by the dog, and summary judgment should be entered as
a matter of law in favor of the defendants. The trial court found that these
two statutes prohibited Ramos’s negligence claims against both defendants.
After the final judgment was entered, Ramos appealed.
Among his arguments on appeal, Ramos contends that sections
767.01 and 767.04 are inapplicable in this case because neither of the
defendants were actual owners of the dog that injured Ramos’s dog. We
agree.
This Court reviews an order granting summary judgment under a de
novo standard of review. Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,
1 There was no court reporter at the hearing, thus, there is no transcript.
4
760 So. 2d 126, 130 (Fla. 2000). The trial court improperly granted
defendants’ motion for summary judgment because it erred with respect to
the application of sections 767.04 and 767.01. Section 767.01 states,
“Owners of dogs shall be liable for any damage done by their dogs to a
person or to any animal included in the definitions of ‘domestic animal’ and
‘livestock’ . . . .” In turn, section 767.04 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 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.
(Emphasis added). Here, however, Ramos did not sue the attacking dog’s
owner; he sued the business owner and the grooming business. Ramos
5
alleged two counts of common law negligence in his amended complaint.
His amended complaint was not based upon the strict statutory liability of a
dog owner, as he did not allege a claim under either section 767.01 or section
767.04. Thus, although Ramos could have sued the owner of the attacking
dog, he did not. Sections 767.01 and 767.04 are silent as to keepers or
custodians of dogs, which allows for a common law negligence action
against a business and business owner by a business invitee for damages
sustained at the business premises. Noble v. Yorke, 490 So. 2d 29, 31-32
(“However, in Belcher [Yacht, Inc. v. Stickney, 450 So. 2d 1111, 1112 (Fla.
1984)), we noted that the strict liability of section 767.04 is limited to dog
owners and a dog-bite victim may sue the non-owner of the dog upon a
theory of common law liability. . . .”); Cole v. Leach, 405 So. 2d 449, 450
(Fla. 4th DCA 1981) (“But here, plaintiffs travel on a legal theory entirely
unrelated to ownership of the dog, namely, common law negligence of the
defendant.”)
Outcome: Accordingly, as a matter of law, defendants were not entitled to
judgment in their favor. Thus, the county court erred in entering summary
judgment for the defendants. We therefore reverse the final judgment and
remand to the county court for further proceedings.
Reversed and remanded
Plaintiff's Experts:
Defendant's Experts:
Comments: