Paskel v. Higgins

District Court of Appeal of Florida

Paskel v. Higgins

337 So. 2d 416

CourtDistrict Court of Appeal of Florida

DecidedSeptember 24, 1976

DocketNo. 75-2283

StatusPublished

Cited by1 cases

This text of 337 So. 2d 416 (Paskel v. Higgins) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Paskel v. Higgins, 337 So. 2d 416 (Fla. Ct. App. 1976).

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Opinion

SCHWARTZ, ALAN R., Associate Judge.

The defendant-dog owner appeals from a partial summary judgment on the issue of liability entered against him in a dog-bite case brought under the provisions of Fla. Stat., Sec. 767.04. While, on the authority of Sand v. Gold, 301 So.2d 828 (3 DCA Fla.1974), cert. den., 312 So.2d 752 (Fla.1975), we hold that the 6-year-old plaintiff was conclusively shown not to have “mischievously . . . provoke[d] or aggravate[d] . . . ” the dog in question, we have concluded that plaintiffs-appellees did not meet this burden, of course necessary to sustain a summary judgment, to establish that the child was on the defendants’ premises, where the bite occurred, “. upon invitation, expressed or implied, of the owner thereof . . . .” Since recovery under Fla.Stat., Sec. 767.04 requires such a showing, we reverse for a trial on this liability issue and, if appropriate, on that of damages.

AFFIRMED in part; REVERSED in part, with directions.

DOWNEY, J., and MORROW, RUSSELL 0., Associate Judge, concur.

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SCHWARTZ, ALAN R., Associate Judge.

The defendant-dog owner appeals from a partial summary judgment on the issue of liability entered against him in a dog-bite case brought under the provisions of Fla. Stat., Sec. 767.04. While, on the authority of Sand v. Gold, 301 So.2d 828 (3 DCA Fla.1974), cert. den., 312 So.2d 752 (Fla.1975), we hold that the 6-year-old plaintiff was conclusively shown not to have “mischievously . . . provoke[d] or aggravate[d] . . . ” the dog in question, we have concluded that plaintiffs-appellees did not meet this burden, of course necessary to sustain a summary judgment, to establish that the child was on the defendants’ premises, where the bite occurred, “. upon invitation, expressed or implied, of the owner thereof . . . .” Since recovery under Fla.Stat., Sec. 767.04 requires such a showing, we reverse for a trial on this liability issue and, if appropriate, on that of damages.

AFFIRMED in part; REVERSED in part, with directions.

DOWNEY, J., and MORROW, RUSSELL 0., Associate Judge, concur.

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337 So. 2d 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paskel-v-higgins-fladistctapp-1976.

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