Concerning liability for dog bites, some Florida residents are aware of dog owners' statutory liability if their dog bites a person in a public place or while lawfully on that owner's property, See §767.04, Florida Statutes; however, few residents realize that a dog owner by statute is "strictly liable". This means that it is not relevant whether the dog owner knew that a dog had vicious tendencies. A statutory defense for dog bites to persons over the age of six exists if the owner displays an easily readable sign which includes the words "Bad Dog" in a prominent place on the owner's property.

In addition to a dog owner's liability, the owner of property where the dog bite occurred may be liable. It may seem unusual that a property owner who does not own a dog and who may have no actual knowledge of a vicious dog's presence, could be liable if a dog bites someone. The rationale for this long standing legal rule is that given the parties who would bear the cost of a dog bite, the dog owner and the property owner may be in the best position to take action to prevent a damaging incident.

The law does change to reflect changing presumptions. Until recently, most reported Florida appellate decisions which involved the liability of persons who were not the dog owners concerned landlords. Two recently decided cases held that a homeowners' association may be liable when a dog bites someone within the community even though the association did not own the dog. It is fair to assume that these rulings will apply to condominium and cooperative associations; thus, the decisions are important to all associations and their members.

In Barrwood Homeowners Association, Inc. v. Maser, _______ So.2d _______, 21 Fla. L. Weekly D1255 (Fla. 4th DCA, May 29, 1996), the Association, Inc. was liable for a dog biting a child on "common area" property the Association owned and controlled. The decision did not discuss specifically how or what the Association knew of the dog's presence or the dog's viciousness. The decision did remark that there was sufficient evidence to determine that the Association was aware of the dog's vicious propensities.

The decision clarifies the law, albeit in favor of finding associations liable. Unfortunately, without the decision stating what notice the Barrwood Association had, there is little factual guidance for associations as to where, proverbially, "to draw the line" when a bad dog is present. On a positive note for homeowners' associations, the Court specifically held that the homeowners' association's liability can be reduced by the dog owner's percentage of fault. However, this does not absolve the association from fault for failing to prohibit the presence of the vicious dog on common area property.

In the second decision, Sanzare v. Varesi, ____ So. 2d _____, 21 Fla. L. Weekly D2101 (Fla. 4th DCA, September 25, 1996) the Coconut Key Homeowners Association, Inc. defended a claim arising from a bite by a tenant's dog occurring on common property. The Court rejected the Association's defense that only the dog owner or the tenant's landlord could be liable for the attack. The Court held that the Association's knowledge of the dog and the Association's ability to control the dog were important factors.

What is "knowledge" about a dog that will result in an association's liability? Though an exact answer depends upon the circumstances, earlier appellate decisions involving landlords provide guidance. Florida courts have definitively held that the "knowledge" of a landowner does not have to be "actual" knowledge of the presence of a vicious dog. A landowner will be held liable for dog bites on the landowner's property even if there is only circumstantial evidence based upon inferences that the landowner knew of the vicious dog's presence.

Importantly. any information about a vicious dog's presence on common areas may be attributable to, or held against a homeowners', condominium or cooperative association if an employee or agent of the association knew of the information. While was older case law supporting the proposition that knowledge gained by an association director in a social setting is not held against the association, there now appears a trend that however an association gains knowledge, the information will be presumed to have been provided to the association. As with all circumstances that might cause injury, once an association officer, director, employee or agent has information, regardless of the source or method of communication, the information should be transmitted to a responsible association representative for action.

The manner in which information is transmitted appears to be relevant. Many associations require that complaints be in writing. Such regulations are valuable, making owners carefully think about whether an event really justifies a complaint. Nevertheless, an association will most likely be held to have received notice even if by a telephone or face to face conversation.

Associations are suggested to counsel all employees, including management, gate and access personnel, employees working on the common areas, as well as directors, to take immediate steps when faced with a potential danger. Usually the proper effort will be a report to management. Management then is usually charged to rectify the situation, removing the danger.

In the dog situation, the effort is relatively clear. Whoever observes unattended dogs on common areas should inform management. Management then must take action to prevent injury. Note that a report to management does not absolve an association from potential liability unless the situation is made safe. Of course, residents need to be educated about securing their dogs on their private property.