Shаun Leo REED, a Minor, By and Through His Parent and Next Friend, May Elretta LAWRENCE, and May Elretta Lawrence, Individually, Appellants, v. Felix BOWEN and Martha Bowen, Appellees.
No. 86-182.
District Court of Appeal of Florida, Second District.
October 24, 1986.
503 So.2d 1265
Louis L. Suprina, Winter Haven, for appellees.
PER CURIAM.
Appellants, Shaun Leo Reed, a minor, by and through his parent and next friend, May Elretta Lawrence, and May Elrеtta Lawrence, individually, filed an action under
The appellants first contend that the trial court should have granted their motion for directed verdict because the evidence submitted at trial was insufficient to permit the jury to lawfully find that Shaun had mischievously or carelessly provoked or aggravated the dog. We disagree.
A motion for directed verdict should not be granted unless the court concludes that the evidence and all inferences of fact, construed most strictly in favor of the nonmoving party, cannot support in the minds of the jurors any reasonable difference as to any material fact or inference. Zilber Cab Co. v. Capeletti Brothers, 303 So.2d 360 (Fla. 3d DCA 1974); see also, Chrysler Airtemp v. Stevens, 346 So.2d 1236 (Fla. 2d DCA 1977). The fact that circumstantial evidence is relied upon does not alter the rule that it is solely within the province of the jury to evaluate or weigh the evidence. See Voelker v. Combined Insurance Company of America, 73 So.2d 403 (Fla. 1954).
At trial, Shaun‘s grandmother testified that she was baby-sitting four-year-old Shaun on the day of the attack. At the time of the incident, she had gone into town and Shaun‘s grandfather was in the house sleeping. The dog owners, Mr. and Mrs. Bowen, testified that Shaun came over to their yard and started playing with the dog while they were sitting in their carport. They also testified that the dog was routinely chained to prevent his digging in the yard and that he customarily stayed under their van in order to stay cool. Mrs. Bowen testified that she warned Shaun that the dog had an ear infection and that if he played with the dog he might get bitten. When the child persisted in trying to play with the dog, Mrs. Bowen asked him to go homе. Shaun left and the Bowens went inside. The Bowens’ next door neighbor testified that shortly thereafter she saw the child return to the Bowens’ yard, put his shoes down on the driveway, and lie down beside the van. She testified that she could not see exactly what he was doing just рrior to the attack but that he was pulling on something which she presumed was the dog‘s chain or perhaps even the dog.
Shaun testified that he was petting the dog when the dog bit him. He also testified that the dog was not under the van, that he had not been told to stоp playing with the dog because of its ear infection, and that he did not remember pulling at the dog. Mr. Bowen testified that while visiting the child in the hospital he had occasion to hear Shaun‘s stepfather ask how the bite had occurred. According to Mr. Bоwen, the child replied that he was pulling on the dog and “bugging” the dog when the dog bit him. Shaun and his stepfather deny having had such a conversation. Although the witness’ testimony conflicts on this point, the determination of the credibility of witnesses is exclusively the province оf the jury. Waters v. Wainwright, 316 So.2d 588 (Fla. 4th DCA 1975); see also, Marshall v. State, 54 Fla. 66, 44 So. 742 (1907). We find there was circumstantial evidence from which the jury could properly conclude that the child had provoked or aggravated the dog. See Voelker.
We also disagree with appellants’ contention that, in view of the child‘s tender years, he wаs incapable as a matter of law of mischievously or carelessly provoking or aggravating the dog. Rather, for the reasons discussed below, we hold that the question of whether a person of any age mischievously or carelessly prоvokes or aggravates a dog within the
In so holding, we disagree with the first district in Harris v. Moriconi, 331 So.2d 353 (Fla. 1st DCA), cert. dismissed, 341 So.2d 1084 (Fla. 1976), that because the term “negligence” as customarily used in tort aсtions and the term “careless” as used in the statute are synonymous, a child under the age of six is, as a matter of law, incapable of being careless within the meaning of the statute.2 In arriving at its decision, the first district applied the presumption, enunciated in Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), that in the absence of a legislative declaration, any child under the age of six is conclusively presumed incapable of committing contributory negligence.
In statutory construction, statutеs must be given their plain and obvious meaning, and it must be assumed that the legislature knew the plain and ordinary meanings of words when it chose to include them in a statute. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla. 1973); Union Trust Co. v. Lucas, 125 So.2d 582 (Fla. 2d DCA 1960). When the language of a statute is clear and not unreasonable or illogical in its opеration, the court may not go outside the statute to give it a different meaning. In re Estate of Levy, 141 So.2d 803 (Fla. 2d DCA 1962); see also, Jones v. Utica Mutual Insurance Co., 463 So.2d 1153 (Fla. 1985). In this regard,
Decisions in other jurisdictions reveal a variety of theories under which dog owners have been held liable for injuries inflicted by their dogs, as well as a variety of defenses available to dog owners. Some jurisdictions hold, as a matter of law, that children “of tender years” are incapable of
We find implicit support for our holding in two Florida cases. In Minisall v. Krysiak, 242 So.2d 756 (Fla. 4th DCA 1970), the court found that the dog owners had failed to provide sufficient proof that a three-year-old child had mischievously or carelessly aggravated or provoked their dog, and that the trial court should have directed a verdict against the owners on the issue оf their liability. Significantly, that court did not rule as a matter of law that the child was incapable of mischievous or careless behavior.
In Flick v. Malino, 374 So.2d 89 (Fla. 5th DCA 1979), the court considered the provision in
Even under the attractive nuisance doctrine,3 age has been deemed only one of the factors to be considered in the jury‘s determination of the child‘s capacity to understand and avoid a particular danger.4 See, e.g., Howard v. Atlantic Coastline R.R., 231 F.2d 592 (5th Cir.1956); Idzi v. Hobbs, 186 So.2d 20 (Fla. 1966). Furthermore, there is generally no specific age below which a child is excused, as a matter of law, for his intentional torts. Instead, the child‘s age is only one of the factors considered in determining whether he was capable of forming the intent required for a specific tort. See, e.g., Ellis v. D‘Angelo, 116 Cal. App.2d 310, 253 P.2d 675 (1953); Jorgensen v. Nudelman, 45 Ill. App.2d 350, 195 N.E.2d 422 (1963); Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955); see also, 42 Am.Jur.2d Infants § 141 (1969).
Although, in Florida, children under the age of six are conclusively presumed incapable of committing contributory negligence, Swindell; see also, 43 Am.Jur.2d Infants § 142 (1969), and children under the age of seven are conclusively presumed incapable of committing a crime, Clay v. State, 143 Fla. 204, 196 So. 462 (1940); see also, 14 Fla.Jur.2d, Criminal Law § 25 (1979), age is not always an automatic bar.
We conclude that the trial court correctly instructed the jury that in deciding whether the child mischievously or carelessly provoked or aggravated the dog as contemplated by
AFFIRMED.
SCHOONOVER, A.C.J., and LEHAN and SANDERLIN, JJ., concur.