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Florida Second DCA rules that Florida’s dog bite statute, § 768.28, does not apply to lawsuit against Sheriff acting in his official capacity, but finds common law basis for negligence complaint in defendant’s alleged creation of a foreseeable “zone of risk” by placing K-9 close to event bystanders

On May 4, 2022, in McKinley v. Gualtieri, No. 2D20-3156, the Florida Second DCA reversed a trial court’s dismissal of a plaintiff’s dog bite case against the Pinellas County Sheriff, finding that the trial court erred in determining that the complaint was barred by the doctrine of sovereign immunity. The complaint alleged that a deputy sheriff was negligent in handling a K-9 dog that bit the plaintiff while he was attending an event at the Florida Auto Exchange Baseball Stadium in Dunedin. The Second DCA concluded that Florida’s “dog bite” statute, Fla. Stat. § 767.04, which imposes strict liability on dog owners for dog bites, did not apply in this case because the Florida Tort Claims Act, Fla. Stat. § 768.28, does not contemplate in its limited waiver of sovereign immunity that government actors will be subject to strict liability. The Second DCA cited Schick v. Fla. Dep't of Agric., 504 So. 2d 1318, 1322 (Fla. 1st DCA 1987), in which the First DCA stated that “liability will attach to the government in the same manner and to the same extent as to a private individual under like circumstances. Thus, the removal of sovereign immunity in tort actions does not impose strict liability in its place.” However, the Second DCA found that there were sufficient facts alleged in this case to support a common law action for negligence because the complaint alleged, inter alia, that the Sheriff created a foreseeable zone of risk "by placing bystanders in close proximity" to the K-9. The Second DCA also rejected the defendant’s argument that patrolling the baseball venue was a governmental“discretionary function” not subject to the waiver of sovereign immunity.

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