IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,

IN AND FOR ORANGE COUNTY, FLORIDA

Case No.:

Jack Sixpack,
Petitioner,

and

Jane Roe,
Respondent.
____________________________/

MOTION FOR SUMMARY JUDGMENT

COMES NOW, the Respondent, Jane Roe (hereinafter referred to as “Respondent”), by

and through her undersigned attorney, moves the Court, pursuant to Fla. R. Civ. P. 1.510, for the

entry of a Summary Judgment in her favor as to the allegations listed against the Petitioner, Jack

Sixpack (hereinafter referred to as Petitioner), on the grounds that there is no genuine issue as to

any material fact, and that Respondent is entitled to a judgment in her favor as a matter of law.

FACTS

The Respondent left her dog, Buster, with the Petitioner for the day. Buster is a mild-

mannered bulldog, that can has been known to be “stubborn and ornery” on occasion. During

these instances he plants his feet, growls, and raises his fur. Petitioner had bi-monthly contact

with Buster during his year-long relationship with Respondent and had thus experienced that

type of behavior before. While watching Buster that day, Buster urinated on the carpet and whilst

he was preparing to leave a “deposit,” Petitioner attempted to remove Buster outside by grabbing

his collar and pulling. Buster refused to move, planting his feet while simultaneously growling

and raising his fur. Buster took no aggressive action toward Petitioner, and yet Petitioner

punched Buster’s face twice in an attempt to protect himself though at the time the situation had
not gotten dangerous. Buster did not respond to the hits, but Petitioner suffered a cut from

Buster’s protruding teeth on impact. To avoid further injury, Petitioner backed away. Buster then

left a “deposit” on Petitioner’s carpet. Petitioner’s lease ended a month after the incident and

Petitioner lost $50 from his security deposit refund as a result of Buster’s urination and

defecation on the carpet. Petitioner’s wound healed but he contracted a severe infection, forcing

him into a hospital. As a result of infection, Petitioner lost the tip of his right finger and incurred

$100,000 in medical expenses. Petitioner is wary of future pain and suffering following his loss

as well how it might affect his career. He desires damages as he alleges Buster caused the injury

expenses and losses suffered.

ANALYSIS

In support of her position Respondent states the following:

1. This Court has jurisdiction over both the subject matter of this action and that of

the Petitioner and Respondent.

2. There are no genuine issues as to any material fact and Respondent is entitled to a

judgment as a matter of law based upon the facts alleged.

3. Pursuant to Fla. Stat. § 767.01, Dog owners are liable for any damage done for any

damage done by their dogs to a person, however according to Fla. Stat. § 767.04, which refers to

a dog owner’s liability for damages to persons bitten, any negligence on the part of the person

bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog

by the percentage that the bitten person’s negligence contributed to the incident. This can be

construed in consideration of Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153 (S.Ct. 1985): “The

defendant is liable when his act of negligence combines with some other concurring or intervening

cause in the sense that, ‘but for’ the other cause as well, injury would not have occurred.”
 4. The intervening cause or negligence on the part of Petitioner was his willingness

and conscious effort in reeling back his arm and thrusting it, with great force, forward into the face

of the Respondent’s dog. If not for his own, voluntary and deliberate action, he would not be

suffering from the injury he now has. The resulting damage to his hand as well as the resulting

infection is due to Petitioner’s own negligence.

5. Petitioner alleges that because Buster reacted in an affirmative or aggressive

manner, as per the language of Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153 (S.Ct. 1985), the

owner or Respondent should be held liable and owe him damages. This holds in line with Fla. Stat.

§ 767.01.

6. Since the aggressive or affirmative action was the extent of the dog’s reaction to

Petitioner, and the resulting injury only occurred because of Petitioner’s step beyond it, Petitioner

is liable due to his own negligence.

7. There is no evidence beyond a growl and raising of fur, which occurred in response

to Petitioner’s action as he stated, to predict a bite, although it was a possibility. The

predetermination of the dog’s subsequent reaction is not substantive being that he did nothing more

than what he did. Petitioner is solely responsible for his injury and infection.

8. After Petitioner punched the dog once, the dog remained in his aggravated state so

Petitioner took it upon himself to punch Buster one more time, securing his own injury. Petitioner

even alleged in his deposition, “I knew I hurt my finger.” He admits his own fault in his injury.

9. In light of these facts, it is clear the Petitioner is liable for his own injury,

Respondent is clear of any responsibility in that her dog did nothing but enter an agitated state.

Buster took no action beyond his audible and visual annoyance. The statutes mentioned do not

allow for damages on this alone.

 10. As a matter of law, a Summary Judgment shall be entered in favor of a party

wherein the pleadings, depositions, facts, and law show there is no genuine issue as to any material

fact, that party is then entitled to a judgment in their favor as a matter of law, in light of Fla. R.

Civ. P. 1.510.

WHEREFORE, Respondent, Jane Doe, respectfully requests this Honorable Court to

enter Summary Judgment in her favor as to all issues raised in this Motion, and to award any

further relief as this Court deems just and proper.

CERTIFICATEE OF SERVICE

I HEREBY CERIFY that a true and correct copy of the foregoing Motion for Summary

Judgment was mailed to the Petitioner, Jack Sixpack, at 2130 Fakestreet, Orlando FL, 32826 on

October 3, 2017.

_________________________________
Michael Citelli, ESQUIRE
Citelli & Murdock, PL
FBN: 0081583
8630 Buccilli Drive, Suite 309
Orlando, Florida 32829
Telephone: 407.688.5555
Facsimile: 407.321.0988
Designation of Email of Service
Michael@citdoclaw.com
Matt@citdoclaw.com
Jim@citdoclaw.com
Attorneys for Respondent