A Florida jury in a dog attack case rejected the immunity defense of animal control officials and returned a verdict that leaves the city of Delray Beach potentially more liable than the dogs' owner for a $3.7 million award to the plaintiff.

The city denied having any knowledge that two Rottweiler mixes had a history of biting people before they attacked Marguene St. Juste in November 2002 and they had not been classified as dangerous or vicious.

But the Palm Beach County Circuit jury decided the city negligently failed to enforce its animal control ordinance. Delray Beach's animal control officer, Ginny Feldmann, had responded to three or four complaints about the dogs being at large but had never impounded them.

The dogs' owner, Keli Nowling, did not defend the negligence claim against her. St. Juste, 38, suffered permanent injuries to her right arm from the attack, which occurred in front of Nowling's property.

“We felt like the dogs' owner was obviously irresponsible, but be that as it may, if the city had followed its own code, it wouldn't have made any difference whether she was irresponsible or not because they would have impounded the dogs and it would have never happened,” the jury foreman told the South Florida Sun-Sentinel.

The jury assigned 60 percent of the blame for the attack to the city, making it potentially liable for more than $2.2 million of the damages award. Nowling is responsible for the remaining 40 percent.

Under Florida law, “discretionary” governmental functions are immune from tort liability and the Florida Supreme Court has applied the immunity to a city's decision not to enforce an impoundment law against dogs which later attacked a woman. An animal control officer, the court noted in Carter v. City of Stuart, 468 So.2d 955 (1985), had never observed the dogs off private property.

Delray Beach cited Carter in its defense, arguing in a summary judgment motion that the cases were factually similar and “any decision regarding enforcement of its dog control ordinance constituted a discretionary decision.”

But St. Juste attorney Brian W. Smith (Smith & Vanture, West Palm Beach) was able to distinguish her case from Carter. For one thing, Feldmann's supervisor, whom she had called for backup in response to one of the complaints, testified he found Nowling's dogs running loose on city property but returned them to the owner.

The city's ordinance specifies that “Any dog found running at large in the City ... shall be impounded by the City's Animal Control Officer.”

During one visit to the Nowling property, moreover, Feldmann tried to repair the hole in the fence through which the dogs were escaping. By doing so, Smith argued, she affirmatively assumed a duty of care to protect the public from the dogs.

The jury verdict includes $3.5 million for pain and suffering, $178,000 for lost earning capacity and $26,500 for medical expenses. Florida caps awards against municipalities at $100,000, but St. Juste could collect more than that by having the legislature approve a claims bill.

By Matthew Heller
6/21/07