Barrwood Homeowners Assoc., Inc. v. Maser

675 So.2d 983 (1996) BARRWOOD HOMEOWNERS ASSOC., INC., Appellant/Cross-Appellee, v. Jeffrey MASER and Karen Maser, Individually, and as parents and natural guardians and next friends of Alexander Maser, a minor incompetent, Appellees/Cross-Appellants. No. 94-3211. District Court of Appeal of Florida, Fourth District. May 29, 1996. Rehearing Denied July 16, 1996. *984 Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., and Thomas Morgan, Miami, for appellant/cross-appellee. Rebecca L. Larson of Montgomery & Larmoyeaux, and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellees/cross-appellants. SHAHOOD, Judge. Appellant, Barrwood Homeowners Assoc., Inc. (BARR), appeals the final judgment entered by the trial court after an adverse jury verdict in a negligence action brought on behalf of appellee Alexander Maser, a minor. The incident, a dog attack and biting, occurred on the property owned and controlled by BARR, customarily referred to as the "common area." Appellees cross-appeal the trial court's ruling that the dog owner would be put on the verdict form and that appellees' damage award would be reduced by the dog owner's percentage of fault, even though the dog owner was not named as a party in the trial court proceeding. We affirm the trial court's rulings in all respects. We affirm based on Vasques v. Lopez, 509 So.2d 1241 (Fla. 4th DCA 1987), wherein this court held that a landowner could be held liable for damages caused by a dog on its property where there was sufficient evidence from which a jury could determine that the landlord had knowledge of the vicious dog's presence and had the ability to control the premises. The evidence in this case was sufficient to allow a jury to determine whether or not the association was aware of the dog's vicious propensities. We distinguish this case from Tran v. Bancroft, 648 So.2d 314 (Fla. 4th DCA 1995), wherein this court held that a non-owner (landlord) was not liable for the injuries caused by its tenant's dog on property away from the leased premises and not owned by the landlord. We affirm with respect to the issue raised on cross-appeal based on sections 768.81(3) and 768.81(4), Florida Statutes (1993), and Fabre v. Marin, 623 So.2d 1182 (Fla.1993). Affirmed. POLEN, J., and SPEISER, MARK A., Associate Judge, concur.