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Florida Fourth DCA affirms defense verdict in negligence case brought under Florida’s Warren Act, finds no error in trial court’s order granting defendant’s motion in limine to exclude evidence of previous incidents involving escaped cattle

On April 24, 2019, in Carnahan v. Norvell, No. 4D17-3948, the Florida Fourth DCA affirmed a defense verdict in a negligence case brought by the plaintiff under Florida’s Warren Act. § 588.15, Florida Statutes, which imposes liability on a livestock owner for injuries caused by livestock that come upon public roads due to the owner’s intentional, willful, careless, or negligent actions.  The trial court granted a motion in limine by the defendant and barred the introduction of evidence pertaining to prior instances where defendant’s livestock had escaped their confinement.  Although pre-trial discovery uncovered multiple instances in which the defendant’s cows had escaped their pastures, the plaintiff only mentioned one specific incident at the hearing on the defendant’s motion in limine, an incident in which the cows had jumped the fence after being frightened by hunting dogs on a neighbor’s property.  The Fourth DCA ruled that by failing to proffer or argue as to any of the other incidents, the plaintiff waived his ability to contest on appeal the exclusion of any incident not specifically proffered in the trial court.  The Fourth DCA cited Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla. 4th DCA 2000) (“[w]hen 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”). Regarding the specific incident the plaintiff did raise before the trial court, the Fourth DCA concluded that the fact that the cows escaped through no fault of the owner and in a manner dissimilar to the method of escape in this case supported the trial court’s exercise of discretion in excluding the evidence. See Stephenson v. Cobb, 763 So. 2d 1195, 1196 (Fla. 4th DCA 2000) (observing that determinations of whether incidents are sufficiently similar should be left to the sound discretion of the trial court).  

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