Fractured Kentucky Supreme Court Addresses Dog Bite Liability

Fractured Kentucky Supreme Court Addresses Dog Bite Liability

 

      In a remarkably fractured decision, the Kentucky Supreme Court has recently addressed the law as to when a landlord can be liable for dog bite liability.  Benningfield v. Zinsmeister, 2009-SC-000660-DG (Ky. June 21, 2012).

      Brandon Benningfield, an eight year old boy, was approached by a Rottweiler owned by Dominic Harrison.  Brandon ran, at which point the dog gave chase and attacked him, resulting in numerous injuries to Brandon.  The dog in question had been kept in the fenced pen of the yard of Dominic’s parents.  His parents in turn leased their residence from the Zinsmeisters.  As recounted by the Kentucky Supreme Court, “The attack occurred on the sidewalk across the street from the rented property after the dog somehow escaped from the back yard.”  Slip op. at 2.  Brandon’s mother, Laurie Benningfield, filed suit against the Harrisons, as the owner of the dog, and against the Zinsmeisters, asserting that they bore strict liability for the dog attack.  Ultimately, the Harrisons settled, and suit proceeded against the Zinsmeisters under KRS § 258.095(5), which defines the owner of a dog as including “every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him.”  The trial court granted summary judgment and the Court of Appeals affirmed on the basis that liability did not extend to the landlord when the attack does not take place on the leased premises.

      The Supreme Court would hold that, while the landlord may be treated as a statutory owner of the dog, focusing on the statutory reference to the dog being “on or about” the leased premises:

We read this to mean that a landlord is only an owner when the dog is within the landlord’s permission that is, when it remains on or about the premises.  Because liability depends on ownership, which under the statute depends on permission, then a landlord’s liability is limited by the scope of the permission so that it exists only when the attack occurs “on or about” the premises.  Slip op. at 12.

Ultimately, the court determined that “on or about” requires that the attack take place “on the property or so close to it as to be within the immediate physical reach.  Thus, it would include an attack that occurs immediately adjacent to the property – for example, on the sidewalk or just off the curb – but nothing further away.”  Slip op. at 12.  On that basis, the court determined that an attack taking place across the street was not “on or about” and, for that reason, the Zinsmeisters, as landlords, were not liable under the dog bite statute.

      This decision led to no less than four separate opinions from the seven members of the court.

      For the perspective of business law, it is important for all landlords to appreciate that Kentucky law does provide that, in least in certain circumstances, a landlord can be held responsible for dog bites that take place “on or about” their property if they have consented (which consent may be either explicit or implicit) to permitting dogs to be maintained at the property.  Landlords would be well advised to confirm the availability of insurance coverage in these events and to as well mandate that tenants maintain appropriate insurance coverage for which the landlord is identified as an additional insured.