Eshelman v. Key – Dog Bite Injury Lawsuit Weighed


When it comes to liability for dog bites in Florida, the law provides broad protection for victims.

F.s. 767.04 states the owner of a dog that bites and injures someone either in a public or private place – including the owner’s property – is liable for damages suffered. This is true even if there was no prior indication the dog was vicious. However, the dog owner’s responsibility to pay can be reduced if there is evidence the victim was somehow comparatively negligent (i.e., was teasing the dog, was on the property illegally, etc.). These exceptions don’t apply to victims under the age of 6.

Still, each case is going to be weighed individually by the court for merit, and it’s important for victims to make sure they are well-represented by a seasoned attorney. Recovery of damages can be substantial. In a single year, the insurance industry pays about $490 million in damages for dog bite injuries sustained by some 4.5 million people. There are approximately 800 serious bite victims in Florida annually.

In the recent case of Eshelman v. Key, the question was whether the handler/keeper of a police dog in Georgia was entitled to sovereign immunity for a bite resulting in serious injuries to an 11-year-old boy. The dog had gotten out of its enclosure after the keeper failed to secure the kennel door. Normally, this would be an open-and-shut case. However, because the keeper didn’t technically “own” the dog and because she kept it as a term of her employment for the local government, the Georgia Supreme Court determined she was, in fact, entitled to sovereign immunity.

According to court records, the dog was acquired, kept and trained for the purpose of helping the local police department assist in apprehending criminal suspects. When the employee/keeper was not working, she kept the dog at her home, which was just down the street from plaintiff’s son.

One afternoon, defendant failed to lock the kennel door and the dog escaped, making its way to the child, attacking him and causing severe bites to his arm.

The father sued the keeper, alleging she failed to keep the dog properly restrained, resulting in dog bite injury.

Defendant sought summary judgment on grounds of official immunity. Trial court denied the motion and defendant appealed. Appellate court affirmed the denial of summary judgment, but the Georgia Supreme Court reversed.

The state high court noted as a general rule, law enforcement officials have immunity from lawsuits alleging personal liability for torts that occur in the performance of official functions. There are two exceptions. The first is no immunity for actions that were intentional or carried out with malice. the second is for negligence in the performance of a ministerial function, as opposed to a discretionary function. The former is one that is simple, absolute and definite, while the latter calls for personal deliberation and judgment.

As a police officer and dog handler, defendant was responsible for care and maintenance of the dog at all times, even when she wasn’t working. for this reason, the allegation defendant did not secure the dog outside her home concerns her performance of an official function. Presumptively, then, she is entitled to official immunity.

The only question was whether this was a ministerial function or a discretionary one. The court ruled that keeping the dog kenneled is a ministerial function, and thus she was entitled to official immunity.

If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Eshelman v. Key, June 29, 2015, Georgia Supreme Court

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