Benningfield ex rel. Benningfield v. Zinsmeister

367 S.W.3d 561, 2012 WL 2361778, 2012 Ky. LEXIS 83

• Court: Kentucky Supreme Court
• Decided: June 21, 2012
• Docket: No. 2009-SC-000660-DG
• Status: Published

Opinions

Opinion of the Court by

Justice NOBLE.

Under Kentucky’s dog-bite liability statutes, KRS 258.095 and .235, the owner of a dog is strictly liable for damages caused by the dog. This case presents the questions whether a landlord can be liable under the statutory scheme’s broad definition of “owner” and whether that liability can extend to injuries caused by a tenant’s dog off the leased premises. We hold that a landlord can be the owner of a tenant’s dog for the purposes of liability under certain circumstances, but that any such liability extends only to injuries caused on or immediately adjacent to the premises. For that reason, the landlord in this case cannot be liable under the statutes.

I. Background

Brandon Benningfield, an eight-year-old boy, and his sister were walking in their neighborhood when they were approached by a male rottweiler in the middle of the street. Benningfield’s sister warned him to stand still, but he instead ran. The dog chased and attacked him. As a result of the attack, Benningfield suffered numerous injuries, including tears to his scalp, face, arms, and legs, which required surgery and a substantial hospital stay.

The dog was owned by Dominic Harrison. It and several other dogs were being kept by Harrison’s parents, Sheila Harrison and Ed Roach, in an enclosed pen in their fenced-in backyard. Harrison’s parents lived in a single-family residence rented from the Appellees, the Zinsmeisters, who lived next door. The attack occurred on the sidewalk across the street from the rented property after the dog somehow escaped from the backyard.

The Zinsmeisters undoubtedly knew of the dog’s presence at the house, having initially given oral permission to the tenants to keep it. But they claim to have later revoked that permission.¹ Nonetheless, they took no affirmative steps to make sure the dog was removed from the property except to ask or tell the tenants to remove the animal from the premises.

Benningfield’s mother, Laurie Benning-field, filed suit against Harrison, as the actual owner of the dog, and the Zinsmeis-ters, as statutory owners of the dog under KRS 258.095(5), claiming they were strictly liable for the attack under KRS 258.235(4) and 258.990(2). Harrison settled. The Zinsmeisters moved for and were granted summary judgment under Ireland v. Raymond, 796 S.W.2d 870, 871 (Ky.App.1990), which held that a landlord’s liability for attacks by his tenant’s dog does not extend to attacks that occur off the leased premises.

The Court of Appeals affirmed, also relying on Ireland. In addition to noting that Ireland limited landlord liability to attacks that occur on the leased premises, the court also noted that the case requires proof that the landlord knew of the tenant’s dog and its dangerous propensities. The court declined the Appellant’s invitation to overturn Ireland in light of the plain meaning of KRS 258.095(5), which defines “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,” stating that “to do so would create a slippery slope of liability which the legislature did not intend.” The court further stated that “[t]o apply the meaning suggested by Benningfield would create a society in which property owners would no longer allow dogs on public and private property for fear of being sued.”

In a motion for discretionary review, the Appellant raised several issues, including whether a landlord who permits a tenant to keep a dog on the leased premises is an “owner” under KRS 258.095(5) and therefore liable for damage caused by the dog under KRS 258.235(4) and 258.990(2). This Court granted review to answer these questions to the extent necessary to resolve this case.

II. Analysis

This case turns on the interpretation of two statutes, one creating a form of strict liability for the owner of a dog, KRS 258.235(4), and one defining the “owner” of a dog for the purposes of liability, KRS 258.095(5). The liability statute simply states: “Any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” KRS 258.235(4). The word owner, as the term is used in KRS 258.235(4), is defined as follows: “ ‘Owner,’ when applied to the proprietorship of a dog, includes every person having a right of property in the dog and 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....” KRS 258.095(5).

A. A landlord can be an “owner” of a tenant’s dog.

Under the literal language of the statute, many landlords would be included in the definition of “owner.” A landlord who owns the property he leases and who allows a tenant to keep a dog is a “person who ... permits [the dog] to remain on or about premises owned.... by him,” and so he is an “owner” of the dog under the statute. Although there may be a factual dispute about who really owns the premises or whether the landlord permitted a dog to remain on the premises,² the statutory definition does not categorically exclude all landlords from the definition of owner. Indeed, it literally includes some of them within the definition. Thus, the plain meaning of the statute would include such a landlord under the definition of a dog’s owner, assuming permission to keep the dog could be shown.

As the Zinsmeisters note, however, this Court’s predecessor held that a landlord is not an owner of a dog for the purpose of establishing liability when an earlier, almost identical version of the liability statute was in effect. See McDonald v. Talbott, 447 S.W.2d 84 (Ky.1969) (holding that a landlord is not liable for an attack by a tenant’s dog under KRS 258.275, the predecessor of the present liability statute, though leaving open the possibility of a common law negligence action). At that time, the liability statute also extended liability to owners, and the statutory definition of owner was the same.³ Since that decision, the General Assembly has deleted the old liability statute and re-adopted it in substantially the same form at a different location in the Kentucky Revised Statutes. See 2004 Ky. Acts ch. 189, §§ 18, 31 (deleting KRS 258.275 and enacting the present version of KRS 258.235(4)).

This arguably suggests that Kentucky’s highest court has interpreted the liability statutes to exclude landlords and that the General Assembly has acquiesced to that interpretation. “[W]hen a statute has been construed by a court of last resort and the statute is substantially reenacted, the Legislature may be regarded as adopting such construction.” Hughes v. Commonwealth, 87 S.W.3d 850, 855 (Ky.2002) (quoting Commonwealth v. Trousdale, 297 Ky. 724, 181 S.W.2d 254, 256 (1944)); see also id. (“[T]he failure of the legislature to change a known judicial interpretation of a statute [is] extremely persuasive evidence of the true legislative intent. There is a strong implication that the legislature agrees with a prior court interpretation when it does not amend the statute interpreted.” (quoting Rye v. Weasel, 934 S.W.2d 257, 262 (Ky.1996)) (second alteration in original)). This canon of interpretation is sometimes called the “reenactment doctrine.” Commonwealth v. Morris, 142 S.W.3d 654, 661 (Ky.2004).

The problem with this approach is that McDonald did not interpret the statute in which the definition of “owner” appeared. Indeed, KRS 258.095(5), which was in effect at that time, was never even mentioned in the case. Admittedly, McDonald discussed the liability statute that was in effect at the time, KRS 258.275, but it never mentioned the owner-definition statute, KRS 258.095(5).⁴ See McDonald, 447 . In reaching its decision, the Court explained:

KRS 258.275 deals with liability of the owner of a dog that bites a person, but that statute does not purport to impose such liability on a nonowner of the dog. As a general proposition, it has been urritten often that a landlord is not liable for the negligence of his tenants in the use of leased premises.

Id. (emphasis added).⁵ Rather than looking at whether a landlord is an owner under KRS 258.095(5), the Court looked at the “general proposition of law” and what has been “written often” concerning landlord liability. In other words, the Court looked to the common law, not the statute. Even though the definition of owner was on the books at that time, the Court simply failed to consider it.⁶ At best, we can assume the McDonald Court was aware of the owner-definition statute and that its decision finding the landlord was not an owner of the dog was an implicit interpretation of the statute. But it seems more likely that the Court simply missed the statute.

But even if we were inclined to presume an implied application of the owner statute in McDonald, the reenactment doctrine laid out in Hughes would not apply because it is highly unlikely the legislature knew of the McDonald interpretation of the statute. The case is not listed in the annotations to KRS 258.095 included in Michie’s Kentucky Revised Statutes, which is published by LexisNexis, nor is it included in the annotations to the statute on Westlaw. Thus, it appears that neither of the major legal publishing houses made the connection between the statute and the case. Yet these resources are what the General Assembly would likely turn to as it searched for any connection. A text search for “KRS 258.095(5)” on an online database would work no better because, again, the statute does not appear in McDonald. Consequently, the rationale for the rule in Hughes — that a legislature is presumed to know whether and how a high court has interpreted a statute — would be undermined by applying the rule in this case because there is no reasonable connection between the statute and McDonald.

Moreover, the rule in Hughes would be inapplicable in this case because the statute in question, KRS 258.095(5), has never been reenacted. The definition of owner to be applied in this case has been the same since its enactment in 1954. See 1954 Ky. Acts ch. 119, § 12. Unlike the liability statute, KRS 258.235 (and formerly KRS 258.275), the definitional statute has never been amended, moved, recodi-fied, or otherwise readopted since its initial enactment. Yet the rule in Hughes is called the “reenactment doctrine,” Morris, 142 S.W.3d at 661, for a good reason: It requires the legislature to have revisited the statute after a decisive judicial interpretation before any adoption of such an interpretation can be presumed. The General Assembly has never spoken, impliedly or otherwise, on this Court’s construction of the owner-definition statute, assuming one has happened, because it never touched the statute after 1954.

Without the rule of construction used in Hughes and other cases, McDonald has at best common law prece-dential value. And although adherence to stare decisis is the default approach in our jurisprudence, it is not an immutable rule. This Court will depart from previous decisions where “there are sound legal reasons to the contrary.” Hilen v. Hays, 673 S.W.2d 713, 717 (Ky.1984). A statute directly on point—and ignored by earlier decisions—surely fits that bill.

Moreover, the statute is clearly part of a scheme to displace or abrogate the common law rule on dog-bite liability in part to expand liability, presumably to create incentives for various actors to take steps to reduce the chances of dog bites. It makes sense, then, to include landlords, who are more likely to be responsible and to foresee future problems than many tenants. While an irresponsible tenant may only want to keep a dog because of companionship or security, without thinking about the difficulty and danger that such an animal might pose, a landlord with more to lose is more likely to anticipate the danger and difficulty, however rare, and plan for such a contingency.

Such plans could range from barring dogs from the property, and thus preventing the problem from ever occurring (or at least decreasing its likelihood, notwithstanding a tenant who acts in violation of the lease), to purchasing adequate insurance, which could be used to pay for injuries after the fact. That these are mere possibilities does not mean the legislature did not act in light of them. And in its most natural reading, the statutory scheme does reflect this type of policy concern. By including responsible landlords under the umbrella of dog owners, at least under some circumstances, and thereby extending liability for dog attacks to them, the legislature decreases the likelihood of dog attacks, since many landlords will bar dogs (which will reduce opportunities for attacks), and increases the likelihood that an innocent dog-attack victim can be made whole, at least to the extent the law can do so.

The General Assembly has commanded: “All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature....” KRS 446.080(1) (emphasis added); see also id. (“[T]he rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.”). Because the statute is intended to expand the class of potentially liable persons, this Court must read the statute consistently with that purpose.

While some may believe this is a bad rule or poor policy, it is the prerogative of the General Assembly to set public policy. See Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky.1992) (“The establishment of public policy is granted to the legislature alone. It is beyond the power of a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare that acts constitute a violation of public policy.”), overruled on other grounds by Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky.2009). By enacting the statute, the legislature has proclaimed the public policy of this state, and this Court is bound to interpret the statute to effectuate that policy.

In light of this, we conclude that only the plain meaning of the statute is workable. It has no ambiguity and plainly states that a person who permits a dog to remain on premises he owns shall be deemed an owner for purposes of the dog-bite liability statute. This can include a landlord. This reading furthers the policy of the statute to expand liability so that dog-bite victims can be compensated, which in turn gives incentives to potential owners of dogs to alter their behavior.

B. The statute’s liability does not extend to injuries occurring off the leased premises.

The next questions are whether the landlord in this case was an owner and was liable. The Court of Appeals addressed the first question by excluding landlords generally from the definition of owner as a matter of law. As described above, such a reading of the statute is simply unworkable.⁷ Still, that landlords can be statutory owners of their tenants’ dogs does not necessarily mean that all landlords are owners.

A plaintiff must still show that the defendant was an owner of the dog under the statute. Under the language of the statute, this requires a showing that the landlord permitted a dog to remain on premises he owns. But what exactly does it mean to permit a dog to remain on a premises? This question is important because it controls whether liability extends wherever the dog goes.

For example, a very literal reading of the statute suggests that the landlord, as a statutory owner, stands in the shoes of the dog’s actual owner. Thus, once a landlord permits the dog to remain on his property, he will be liable in any instance where the dog’s actual owner could be liable. But such a broad rule can have absurd consequences. For example, if the tenant (and actual owner) takes the dog along on vacation and an attack occurs 500 miles away, this rule would extend liability to the landlord, to whose property the tenant plans to return.

It is unreasonable to allow a landlord’s liability to track wherever the dog may roam or be taken. To say that once a landlord becomes a statutory owner of a dog, he is forever included under that umbrella, gives rise to absurd consequences. There must be some limit on that liability, which arises only because of the statutory definition of “owner.” The difficulty lies in deciding where to draw the line.

One possible limit is hinted at in McDonald and Ireland: that a landlord’s liability can at most extend to dog attacks occurring on the leased premises. This rule, too, can have absurd results. Consider this example: A dog steps a few inches away from an invisible property line, which has the appearance of being a continuation of the yard, and attacks a young child; the actual owner of the dog is judgment proof, and the landlord encouraged the presence of the dog. The landlord would not be liable under the premises-only rule, with the difference between liability and non-liability being but a few inches that could not reasonably be seen as off the premises.

The best way to resolve this is to look to the language of the statute. KRS 258.095(5) itself suggests a third option to limit when a landlord, who otherwise meets the statutory definition, can be an owner and thus liable under KRS 258.285. The statute makes a person an owner only when he permits a dog to remain “on or about” premises he owns. 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.

Though ordinarily used with reference to time, the phrase “on or about” is also used geographically. Black’s Law Dictionary has described it as a “phrase used in reciting the date of an occurrence or conveyance, or the location of it to escape the necessity of being bound by the statement of an exact date, or place; approximately; about; without substantial variance from; near.” Black’s Law Dictionary 1088 (6th ed.1990). The phrase clearly includes instances occurring on the property, but it also includes instances occurring about property. Whether an attack occurs on a premises is simple enough to resolve. The more difficult question would be whether an attack is near enough to be “about” a premises.

Though this aspect of the statute has not previously been interpreted, similar language exists in other statutes and has been construed by the courts of this Commonwealth. This Court’s predecessor read the language “on or about his person” in a criminal statute to “mean ... in such proximity to the person as to be convenient of access and within immediate physical reach.” Collier v. Commonwealth, 453 S.W.2d 600, 601 (Ky.1970); see also Hampton v. Commonwealth, 257 Ky. 626, 78 S.W.2d 748, 750 (1934) (“[T]he word ‘about’ means nearby, or within reach of the person, and hence that a revolver hidden in the door of an automobile driven by the accused is concealed about the accused’s person.”) (quoting Porello v. State, 121 Ohio St. 280, 286, 168 N.E. 135, 137 (1929)); id. at 749-50 (“ ‘[C]oncealed upon or about his person’ means concealed in such proximity to the person as to be convenient of access and within immediate physical reach.”).

This suggests the most reasonable reading of the phrase “on or about.” It means on the property or so close to it as to be within 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 farther away.

The attack in this case, occurring across the street, was outside the limited range of “on or about” the premises. For this reason, the Zinsmeisters were not owners of the dog in this instance, and thus cannot be liable under the dog bite statute.⁸

This raises one more question: whether this rule applies to a land owner on whose land the dog is temporarily permitted. While that is not the scenario presented by this case, addressing it is necessary to fully show the contours of the rule laid out in this opinion. The most troubling example is when a dog enters a public park in which dogs are allowed. Should the owner of the park, usually a city (and with questions of sovereign and related immunities aside), be liable for an attack that occurs on or about the premises of the park? It seems unlikely that the legislature intended for the owner of such a park to be liable. The dog is only on such land temporarily; the park is not the site of the dog’s care or habitation; and the owner exercises even less control over the land than the average residential or commercial landlord.

Again, this can be resolved by reference to the statute. Aside from the actual owner of the dog, the statutory definition of owner mostly includes persons into whose care the dog may be committed, either directly or indirectly, for example, by taking in a stray (“keeps or harbors the dog, or has it in his care”). The last category in the statute only extends to a person who permits the dog “to remain on or about premises owned or occupied by him.” The common thread that runs through these categories is that they all relate to the care or habitation of the dog, by which the statute incorporates something akin to “domicile” or tenancy for dogs. Further, the statute also allows for liability when the dog is temporarily in a person’s care, which focuses liability on a homelike setting. See, e.g., Jordan v. Lusby, 81 S.W.3d 523, 524 (Ky.App.2002) (holding that a dog groomer was an “owner” under the statute). Thus, where ownership is premised on permission for the dog to remain on property, there must be an element of tenancy, even if for a short period of time, and not simply a passing use of the property. Liability does not extend to temporary excursions onto another’s property, even when done so with the landowner’s permission.

III. Conclusion

In summary, this Court concludes that a landlord can be the statutory owner of a tenant’s dog for the limited purpose of establishing the landlord’s liability under KRS 258.235(4), if the landlord has permitted the dog to be on or about the premises. The landlord’s ownership status and resulting liability are limited by the scope of the landlord’s permission, meaning liability can only arise for attacks occurring on or about the premises. Though Benningfield has raised other questions of law in this appeal, answering them is unnecessary to resolve this case. Because the attack in this case occurred off the premises and the dog was therefore beyond the scope of any permission that may have been given, the landlord cannot be liable under the statutory scheme. For these reasons, the judgment of Court of Appeals is affirmed.

ABRAMSON and CUNNINGHAM, JJ„ concur. SCHRODER, J., dissents but concurs in result by separate opinion in which SCOTT, J., joins. MINTON, C.J., concurs in part as to the opinion of the court but dissents as to the result by separate opinion in which VENTERS, J., joins. VENTERS, J., concurs in part as to the opinion of the court but dissents as to the result by separate opinion in which MINTON, C.J., joins.

1 . However, according to one of the Zinsmeis-ters’ interrogatory answers, the lease with their tenants had "a clause ... stating that no pets were allowed without prior written consent of the landlords."

2 . In this case, for example, the lease included a no-dogs provision and the landlords claimed that they had asked the tenant to remove the dog.

3 . The liability statute then in effect read: "Any owner or keeper of a dog which has killed or injured livestock or poultry or which has bitten such livestock or poultry so severely as to necessitate its destruction, or injured or damaged any person or property, shall be liable to the owner of such livestock or poultry, or person in a civil action for all damages and costs, or to the Commonwealth.” KRS 258.275.

4 .The owner-definition statute, KRS 258.095(5), has not changed since it was enacted in 1954. The liability statute that was in effect when McDonald was decided, KRS 258.275, was repealed in 2004 and reenacted in a slightly different form as KRS 258.235(4). The substance of the new liability statute is very similar to the old liability statute.

5 . The Court went on to consider the possibility that "a landlord may be liable for injuries sustained by third persons lawfully on publicly open portions of leased premises inflicted by a tenant’s animal having dangerous propensities known by the landlord.” McDonald v. Talbott, 447 S.W.2d 84, 85 (Ky.1969). The Court left open the possibility that such a claim could proceed. It did not expressly hold so, though it reversed the case as having been improperly decided on summary judgment motion due to an issue of fact about the landlord’s knowledge, which evinces an implicit holding that such a claim is viable in Kentucky. Id. at 86.

6 . This error was amplified by the Court of Appeals in a later case, Ireland v. Raymond, 796 S.W.2d 870 (Ky.App.1990) (holding that a landlord cannot be liable for a dog attack occurring off the leased premises), which failed to mention any of the statutes from KRS Chapter 258, not even the liability statute.

7 . The Court of Appeals resolved the second question — whether a landlord can be liable— by stating that a landlord can only be liable if he knows of the dog's viciousness. Benning-field raised this issue, along with whether the statute creates strict liability, in his motion for discretionary review. While our resolution of this case does not require that we answer these questions explicitly and apply that aspect of the law to these facts, the historical application of the statute, as opposed to the common law rule, suggests the answer.

8 . Even if the attack had occurred on or about the premises, the Appellees’ ownership status would not be clear because there are questions about whether they actually permitted the dog to remain on the premises, having asked their tenant to remove it and having included a no-dogs provision in the lease. The Appellant, on the other hand, claimed that the Appellees knew of the dog, gave permission for it to be on the premises initially, and took no affirmative steps to have it removed after allegedly revoking permission. We need not decide those issues. But even if we could reach them, a remand would be necessary, as such factual questions are more appropriately decided for the first time at the trial level, either by a jury or by a judge in a bench trial.

We also note that this interpretation of how liability can arise under the statute in no way affects a claim that could be brought against a landlord under the common law. While that law has been abrogated to the extent that it is simpler to establish liability under the statute, the General Assembly in no way removed the ability of a plaintiff to bring a claim under the one-free-bite rule or a theory of negligence, assuming, of course, the plaintiff can prove the claim.