Barry Cornett v. Timothy Sexton

• Court: Court of Appeals of Kentucky
• Decided: April 14, 2022
• Docket: 2021 CA 000821
• Status: Unknown

Opinion

RENDERED: APRIL 15, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0821-MR

BARRY CORNETT APPELLANT

APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 20-CI-00170

TIMOTHY SEXTON AND LESLIE CAUDILL SEXTON APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.

COMBS, JUDGE: Barry Cornett appeals the summary judgment of the Perry

Circuit Court entered in favor of Timothy Sexton in this tort action. After our

review, we affirm.

The material facts are not in dispute. On July 4, 2019, Cornett went to

Timothy Sexton’s home. While Cornett was there, a dog, owned by Timothy

Sexton’s neighbor, Leslie Caudill Sexton (no relation), attacked Timothy Sexton. When Cornett attempted to aid Timothy Sexton, Cornett was also attacked and

seriously injured. Cornett settled his claims against Leslie Caudill Sexton for

$42,500.

On May 7, 2020, Cornett filed a personal injury action against

Timothy Sexton, alleging that Timothy Sexton owed him a duty of care that

required Sexton “to supervise and/or control the dog so as to prevent injury to

others.” Cornett alleged that Timothy Sexton breached the duty of care by

“allowing the dog to bite and to injure [him.]” Next, Cornett alleged that Timothy

Sexton owed him a duty of care that required Sexton “to warn [him] of the

[neighbor] dog’s known dangerous propensities[.]” Cornett alleged that Timothy

Sexton breached that duty of care by failing to warn him that the dog was vicious.

Months later, on January 30, 2021, Timothy Sexton was served with a

summons and a copy of the complaint. He filed a timely answer denying the

substantive allegations against him. Timothy Sexton also interposed extensive

written discovery requests to Cornett and a third-party complaint against his

neighbor, Leslie Caudill Sexton, the owner of the dog.

Cornett filed his answers to the written discovery requests on March

18, 2021. Leslie Caudill Sexton filed her answer to the third-party complaint on

April 8, 2021. She also filed a motion to dismiss.

-2- On April 12, 2021, Timothy Sexton filed a motion for summary

judgment. He contended that there was no genuine issue of material fact

concerning the events surrounding the dog attack. Sexton argued that he could not

be held liable for Cornett’s injuries under these facts and that he was entitled to

judgment as a matter of law.

Cornett filled his response to the motion for summary judgment on

April 30, 2021. In his response to the motion, Cornett argued that he should be

afforded sufficient opportunity to conduct discovery aimed at ascertaining “what

[Timothy Sexton] knew about the propensity of the neighbor’s dog to be violent.”

In his reply, Timothy Sexton reiterated the undisputed fact that he was

not the owner of the dog. Furthermore, he observed that Cornett was plainly aware

of the danger that the dog posed before he (Cornett) elected to offer aid against the

dog-attack. Timothy Sexton denied that he had a duty to survey his neighbors to

determine whether any of them harbored a vicious dog. He argued that no amount

of discovery would change these undisputed facts and that, therefore, he was

entitled to judgment as a matter of law.

In an order entered May 18, 2021, the Perry Circuit Court granted the

motion for summary judgment; it also dismissed the third-party action against

Leslie Caudill Sexton. The court denied Cornett’s subsequent motion to alter,

amend, or vacate. This timely appeal followed.

-3- On appeal, Cornett argues that the circuit court erred by granting

summary judgment. According to Cornett, the sole issue before us is whether the

circuit court erred by failing to afford him additional time to conduct discovery

relating to “[Timothy] Sexton’s prior knowledge as to the dog’s prior aggressive

propensities[.]” Cornett contends that this information is relevant in light of

Timothy Sexton’s “universal duty to exercise reasonable care to prevent

foreseeable injuries to others[.]”

Summary judgment is properly granted where “the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” CR1 56.03. In undertaking our review, we must consider whether the trial

court correctly determined that there were no genuine issues of material fact

concerning Timothy Sexton’s duty of care and whether it properly concluded that

he was entitled to judgment as a matter of law. See Scifres v. Kraft, 916 S.W.2d

779 (Ky. App. 1996). Because summary judgment involves only questions of law

and not the resolution of disputed material facts, we do not defer to the trial court’s

decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.

1992). Instead, we review the trial court’s interpretations of law de novo.

1 Kentucky Rules of Civil Procedure.

-4- Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644

(Ky. 2007).

Cornett contends that the circuit court erred by granting summary

judgment because he was not given an opportunity to discover whether Timothy

Sexton was aware that his neighbor’s dog was vicious. We disagree.

The provisions of KRS2 258.235 impose strict liability upon the

owners. And KRS 258.095(5) defines who is the owner of a dog as follows:

(5) “Owner,” when applied to the proprietorship of a dog, includes:

(a) Every person having a right of property in the dog; and

(b) Every person who:

1. Keeps or harbors the dog;

2. Has the dog in his or her care;

3. Permits the dog to remain on or about premises owned and occupied by him or her; or

4. Permits the dog to remain on or about premises leased and occupied by him or her.

It is undisputed that Timothy Sexton did not own the dangerous dog.

There is no allegation that he kept, harbored, or cared for the dog; nor that he

otherwise permitted it to remain on or about his premises. Consequently, he could

2 Kentucky Revised Statutes.

-5- not be held liable under the governing statute. Furthermore, it is clear under the

facts of this case that Cornett became aware of the viciousness of the dog when he

observed it attacking Timothy Sexton before he (Cornett) approached it. Under the

circumstances, it is reasonable to conclude that Cornett assumed the risk of being

attacked by the dog when he decided to intervene in the attack -- a complete

defense to the action. See Jordan v. Lusby, 81 S.W.3d 523 (Ky. App. 2002).

There was no genuine issue of material fact left to be discovered.

Therefore, the circuit court did not err by granting summary judgment.

We affirm the judgment of the Perry Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jeffrey R. Morgan J. Stan Lee Hazard, Kentucky Katie Bouvier Lexington, Kentucky

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