DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ERNEST CARNAHAN,

Appellant,

v.

ROBERT W. NORVELL,

Appellee.

No. 4D17-3948

[April 24, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Janet C. Croom, Judge; L.T. Case No. 56 2013 CA 000979.

Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, P.A., 

Orlando, and Joseph H. Graves and Matthew M. Thomas of Graves 

Thomas Injury Law Group, Vero Beach, for appellant.

Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for 

appellee.

LEVINE, J.

Appellant was driving along an unlit road at 4:45 a.m. when he collided 

with cows that were on the roadway. The nearby gate that enclosed the 

cows’ pasture was found open. Appellant sued appellee, the cows’ owner,

under the Warren Act, which establishes liability for owners of livestock.

Under the Warren Act, an owner is liable for injuries due to livestock that 

come upon public roads due to the owner’s intentional, willful, careless,

or negligent actions in permitting the livestock to “stray upon” public 

roads. See § 588.15, Fla. Stat. (2012). Appellant claimed that the

pasture’s gate was left unlocked and unlatched, which allowed the 

livestock to escape and come upon the unlit road he was driving on. After 

a trial, the jury found that appellee was not liable under the Warren Act. 

Appellant claims that the trial court erred in granting a motion in limine 

barring the introduction of evidence pertaining to prior instances where 

appellee’s livestock had escaped their confinement. We find that the trial 

court did not err in granting the motion in limine. We also find the other 

issues raised to be without merit and affirm without further discussion. 
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Thus, we affirm the judgment below.

This court reviews a trial court’s decision to admit or exclude evidence 

for abuse of discretion. Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991). 

Relatedly, whether an incident is sufficiently similar to be admissible as 

prior incident evidence is within the trial court’s discretion. Stephenson v. 

Cobb, 763 So. 2d 1195, 1196 (Fla. 4th DCA 2000).

Pre-trial discovery mentioned multiple instances of appellee’s cows 

escaping their pastures. During his deposition, appellee recounted several 

such incidents in general that had occurred over his thirty years raising 

cows in the area. The reasons for the cows’ escapes were numerous, 

including hurricanes, hunters, felled trees, neighbors, and vandals, among 

other causes. Notably, none of the previous escapes were the result of

appellee leaving a gate unlocked or unlatched.

Appellee subsequently moved to limit the introduction of any evidence 

pertaining to previous times his cows had escaped from their enclosed 

pastures. At the hearing on this motion, the parties discussed only one 

specific escape: an incident where appellee’s cows escaped from a different 

pasture onto Carlton Road. Based on appellee’s deposition testimony, the 

cows had left the pasture when dogs belonging to hunters on a neighbor’s 

property scared the cows, causing them to run through or over the fence 

encircling their pasture. Only then did those cows make their way onto a

road and become involved in a car collision. 

Appellant only brought to the trial court’s attention the facts and 

circumstances regarding the Carlton Road incident. Appellant did not 

proffer evidence of any other incidents. Further, neither party even argued 

any of the other prior incidents at the hearing, nor did appellant file any 

response to the motion challenging the exclusion of all those incidents 

from evidence. The trial court granted appellee’s motion in limine, 

preventing appellant from introducing evidence of any prior escapes at 

trial.

Appellant, by failing to proffer or argue as to any of the incidents aside 

from the one that occurred on Carlton Road, waived his ability to contest 

the exclusion of any incident not specifically proffered in the trial court. 

See Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla. 

4th DCA 2000) (“When the trial court excludes evidence, an offer of proof 

is generally necessary if the claimed evidentiary error is to be preserved for 

appellate review. Alternatively, if an adequate record of excluded evidence 

has been made at the hearing on the motion in limine, it is not necessary 

to make an offer of proof at trial.”) (citation omitted). Appellant neither 
3

proffered evidence as to the other incidents, nor did he argue against their 

exclusion at the motion in limine hearing. As such, he failed to preserve 

and cannot challenge the exclusion of any incident except the Carlton 

Road incident. See id.

As to the evidence regarding the Carlton Road escape, appellant 

preserved his argument, as evidenced by the record of the motion in limine 

hearing. See id. However, because that escape was not similar to the 

circumstances that led to appellant’s crash and not relevant to the theory 

of negligence pursued at trial, the trial court properly excluded the 

evidence. 

Another Warren Act case, Prevatt v. Carter, 315 So. 2d 503 (Fla. 2d DCA 

1975), is instructive. In Prevatt, like in this case, the appellant was driving 

down a dark road and collided with a black cow. Id. at 504. Importantly, 

the Second District there noted—and we reiterate here—that the Warren 

Act is not a “strict liability” statute, but instead hinges upon a showing of 

negligence:

The mere fact that the defendant’s [livestock] were running at 

large upon the public highway does not justify an inference 

that the defendant intentionally, willfully, carelessly or 

negligently permitted them to so run at large on the highway 

in violation of [the Warren Act].

See id. (quoting Hughes v. Landers, 215 So. 2d 773, 775 (Fla. 2d DCA 

1968)) (alterations added). 

In Prevatt, the court determined that the appellant should have been 

permitted to introduce evidence that the appellee knew that his cows had 

gotten out of the same pasture before as evidence of appellee’s negligence. 

Id. at 505-506. However, the instant case differs from Prevatt in several 

ways. First, the Carlton Road incident simply did not tend to prove or 

disprove appellee’s negligence. Appellee had nothing to do with that 

escape; instead, it was dogs belonging to hunters who were on a 

neighboring property. As the Second District noted in Prevatt, the mere 

fact that livestock escaped does not establish negligence. See id. at 503. 

Rather, there must be a nexus to negligence. The Carlton Road escape, 

where third parties caused appellee’s cows to leave their pasture, did not 

demonstrate any negligence by appellee, even if those escaped cows 

ultimately were involved in a car accident. 

Additionally, appellant pursued a specific theory of negligence below: 

that appellee was negligent in maintaining his gate, which allowed the 
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cows to escape and collide with appellant’s car. In light of this theory, the 

only livestock escape evidence appellant identified and proffered to the trial 

court was not similar incident evidence that would be probative and 

consequently admissible. The Carlton Road incident involved a fence; the 

instant case involves a gate. The Carlton Road incident occurred on a 

different pasture and the cows escaped onto a different road. Finally, as 

discussed above, the Carlton Road breakout was precipitated by the acts 

of third parties, not appellee, so it did not tend to prove “careless or 

negligent” action. Due to these key differences, the trial court did not 

abuse its discretion in excluding the Carlton Road incident evidence. See 

Stephenson, 763 So. 2d at 1196 (observing that determinations of whether 

incidents are sufficiently similar should be left to the sound discretion of 

the trial court). 

Finally, any error in excluding the prior incident evidence was 

harmless. As detailed above, none of the proffered evidence actually went 

to negligence; as such, its exclusion could not have reasonably contributed 

to the verdict. See Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1256 

(Fla. 2014). We therefore affirm. 

Affirmed. 

TAYLOR and CIKLIN, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.