The Fifth District Court of Appeal of Florida ruled on an important issue concerning dog bite liability and children. In the case of Porter v. Allstate Insurance Company, the Porter family filed a lawsuit on behalf of their four-year-old son who was injured during a dog attack. The victim, Michael Porter, was accused of pulling on the dog’s ears immediately before the attack. In court, this conduct can be classified as provoking a dog, a known statutory defense in a dog bite case.

Legal Accountability of Children

Under common law, a child under six years of age is legally incapable of being negligent. The lawsuit discussed whether a child can be considered to be comparatively negligent for provoking a dog in a careless or mischievous manner. Comparative negligence refers to the victim’s actions or behaviors which may have contributed to the injury in question.

The court ultimately held that, despite common law, dog bite liability based on statute generally applies to children in the same manner that it applies to adults. Contrary to Harris v. Moriconi, a First District Court of Appeal opinion on a similar issue, the Porter court found that a child could be comparatively negligent for carelessly or mischievously provoking a dog.

Florida Dog Bite Liability

Florida’s dog bite liability statute (statute 767.04) states that in most cases, the dog’s owner is liable for any injury that his or her dog causes to another person. This liability falls on the owner regardless of whether or not the dog has been previously identified as dangerous. This statute differs from some other states, where the injured individual must prove that the dog was a known risk. While this Florida statute holds true for a number of dog attack cases, there are a few exceptions to the rule.

Mischievous Provocation

An exception to the Florida statute states that the dog’s owner is not liable for injuries in cases where the dog attack occurred because the dog was “mischievously or carelessly provoked or aggravated.” The statute does not carve out an exception for children who may provoke a dog. In other words, the dog owner is not responsible when the injured individual caused the attack by purposely or negligently bothering, harassing, or agitating the dog. Mischievous or careless provocation transfers liability to the injured individual, regardless of the individual’s age.

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