FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-1481

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DEBORAH DAVISON,

Appellant,

v.

REBECCA BERG,

Appellee.

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On appeal from the Circuit Court for Nassau County.

Steven M. Fahlgren, Judge.

March 22, 2018

PER CURIAM.

Deborah Davison, an avid animal enthusiast, volunteered at

her local Humane Society to help take care of a dog park. Three 

years later, Rebecca Berg’s canine companion was chasing other 

dogs at the park when it collided with Davison, resulting in 

Davison suffering a broken leg and requiring extensive medical 

care. Davison filed an action against Berg under section 767.01, 

Florida Statutes (2014), which imposes liability on dog owners for 

damage their dogs cause to other persons or animals. The trial 

court granted final summary judgment in favor of Berg on two 

equally dispositive bases: 1) the signs outside the dog park 

sufficiently warned Davison of the risks inside, and 2) Davison 

actually consented to, or assumed the risk of, potential injuries. 

We agree with Davison that the trial court erred in granting 

summary judgment, and reverse. 
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I.

“Section 767.01 is a strict liability statute which has 

consistently been construed to virtually make an owner the 

insurer of the dog’s conduct.” Jones v. Utica Mut. Ins. Co., 463 So. 

2d 1153, 1156 (Fla. 1985) (citing Donner v. Arkwright-Boston 

Mfrs. Mut. Ins. Co., 358 So. 2d 21, 23 (Fla. 1978) (“[T]he Florida 

Legislature enacted statutes designed to obviate the element of 

scienter, and make the dog owner the insurer against damage 

done by his dog.” (footnote omitted))). 

The only total defense to liability available in a section 

767.01 action is for a dog owner to have “displayed in a 

prominent place on his or her premises a sign easily readable 

including the words ‘Bad Dog.’” § 767.04, Fla. Stat.1 Berg 

presented evidence regarding two signs prominently displayed at 

the dog park entrance, titled “Dog Park Rules.” The two signs 

respectively listed ten and eleven rules for entrance to the dog 

park. The rules noted that park use is at “the dog owner’s risk.” 

Dogs “exhibiting aggressive behavior” were not permitted in the 

park, and “rough play and chasing” were not allowed if any dogs 

or owners were uncomfortable with the behavior. One sign added 

an eleventh rule stating that visitors enter the dog park at their 

own risk. Davison had seen and understood these signs prior to 

the incident at issue. 

The trial court found that Davison was aware of the two 

signs, which adequately advised her that she entered the dog 

park at her own risk. However, the purpose of the statutory sign

requirement is to give “genuine, effective and bona fide” notice 

“that a bad dog is on the premises.” Carroll v. Moxley, 241 So. 2d 

681, 683 (Fla. 1970); see also Romfh v. Berman, 56 So. 2d 127, 

129 (Fla. 1951), overruled in part by Sweet v. Josephson, 173 So. 

2d 444 (Fla. 1965) (“The sole purpose of the legend was to put one 

 1 The defenses found in section 767.04, which concerns dog 

bites, are equally applicable to “damage” from dogs as set out in 

section 767.01. See Kilpatrick v. Sklar, 548 So. 2d 215, 218 (Fla. 

1989).
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entering the premises on notice that there were dangerous dogs 

on the place.”). “Not every sign, even if seen, is sufficient to put a 

potential victim on notice of the risk he assumes by being present 

on the premises.” Carroll, 241 So. 2d at 683. The signs, which 

also contain rules regarding digging holes and disposing of dog 

waste, are not designed to warn visitors not to enter the dog park

due to the presence of dangerous dogs. Cf. Romfh, 56 So. 2d at 

129 (holding that “Beware of Dogs” sign is equivalent to “Bad 

Dog” sign and precludes liability). We conclude that the trial 

court erred in finding that the Dog Park Rules signs were 

sufficiently equivalent to “Bad Dog” signs to preclude liability 

under section 767.01. 

II.

The trial court also found actual consent or assumption of 

risk on Davison’s part, noting that it was “about as strong as we 

could ever have.” 

In Kilpatrick v. Sklar, 548 So. 2d 215, 216 (Fla. 1989), a 

police officer climbed over a home’s backyard fence while 

investigating a possible burglary, was startled by the 

homeowners’ four dogs as he crept through the backyard, and 

“impaled himself in the calf” while attempting to jump back over 

the fence in retreat. The Florida Supreme Court held that the 

Fireman’s Rule—which precludes policemen and firemen from 

recovering from a property owner for injuries arising from their 

professional duties—was inapplicable, noting that “there are no 

common law defenses to the statutory cause of action based on 

sections 767.01 and 767.04, Florida Statutes (1981).” Id. at 218. 

This rule has been applied consistently by the courts, without 

regard for lack of negligence or other reasonable common law 

arguments. See Huie v. Wipperfurth, 632 So. 2d 1109, 1112 (Fla. 

5th DCA 1994), approved, 654 So. 2d 116 (Fla. 1995); Freire v. 

Leon, 584 So. 2d 98, 99 (Fla. 3d DCA 1991).2

 2 We note that all cases cited construed section 767.04 before 

its 1993 amendment, which replaced the defense of provocation 

with comparative negligence, and permitted plaintiffs to seek 

other remedies outside chapter 767. See Ch. 93-13, § 1, at 117,

Laws of Fla.; Huie v. Wipperfurth, 632 So. 2d 1109, 1112 n.3 (Fla.
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The summary judgment evidence demonstrated that Davison 

was aware that she could be injured in the course of her 

volunteer work. She signed a volunteer application form 

acknowledging that she could be exposed to bites, scratches, and 

other injuries. One year prior to her injury, she watched a dog 

collide with another individual, which also caused a broken leg. 

Following that incident, she spoke multiple times with others at 

the Humane Society about the dangers of being inside the dog 

park with dogs running around and chasing each other, but 

continued to volunteer. Finally, moments before her own 

collision, she noticed dogs chasing each other and stated, “This 

looks like leg breaking territory. I better get out of here.”

While there may be evidence to support the trial court’s 

conclusion that Davison consented to the risk of injury, an actual 

consent or assumption of the risk defense cannot bar liability. 

Rather, the Legislature requires these facts to be presented to the 

jury for a determination of comparative negligence, in accordance 

with section 767.04. 

For these reasons, we reverse the trial court’s entry of final 

summary judgment in favor of Berg. 

REVERSED.

RAY, BILBREY, and WINOKUR, JJ., concur.

 

5th DCA 1994), approved, 654 So. 2d 116 (Fla. 1995). Similarly, 

section 767.01 was amended in 1994 to clarify which “domestic 

animals” and “livestock” dog owners could be held liable for. See 

Ch. 94-339, § 1, at 2433, Laws of Fla. These amendments do not 

reflect any changes in the strict liability nature of section 767.01 

or the defenses available under section 767.04, aside from 

permitting a broader range of a plaintiff’s conduct to be presented 

to juries as comparative negligence. 
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jeffrey J. Humphries of Morgan & Morgan, Jacksonville, for 

Appellant.

William H. Davis of Dobson, Davis & Smith, Tallahassee, for 

Appellee.