DAVID PARSONS AND MARLA PARSONS v. PATRICIA CULP

• Court: District Court of Appeal of Florida
• Decided: September 17, 2021
• Docket: 20-0600
• Status: Published

Opinion

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