Johnna N. Sizemore, as Next of Friend of Brylee Sizemore v. Donald Howard

• Court: Court of Appeals of Kentucky
• Decided: June 13, 2024
• Docket: 2023 CA 000855
• Status: Unknown

Opinion

RENDERED: JUNE 14, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0855-MR

JOHNNA N. SIZEMORE, AS NEXT OF FRIEND OF BRYLEE SIZEMORE APPELLANT

APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE W. DAVIS, III, JUDGE ACTION NO. 22-CI-00736

DONALD HOWARD AND BARBARA HOWARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, GOODWINE, AND A. JONES, JUDGES.

JONES, A., JUDGE: The Appellant, Johnna N. Sizemore, as next friend of her

daughter, Brylee Sizemore, filed a negligence and strict liability lawsuit against the

Appellees, Donald and Barbara Howard, seeking damages for injuries Brylee

suffered when she was attacked by a dog owned by one of the Howards’ tenants.

After the Boyd Circuit Court entered summary judgment in favor of the Howards, Ms. Sizemore brought this appeal as a matter of right. Having reviewed the record

and being otherwise sufficiently advised in law, we affirm.

I. BACKGROUND

The Howards are the record owners of a residence located at 2112

Belmont Street in Ashland, Kentucky. The Howards do not reside at the property.

Rather, it is simply one of many properties the Howards lease to others or renters.

On September 11, 2021, Chelsie Parsons and Seth Stewart signed a lease to rent

the Belmont residence from the Howards. At that time, Ms. Parsons informed Mr.

Howard that she owned a Great Dane. Mr. Howard expressed some reservations

about the dog living on the property because of its size. Ms. Parsons assured Mr.

Howard that the dog was not a cause for concern as it was gentle, friendly, and

loved everyone. The Howards allowed Ms. Parsons and Mr. Stewart to move in

the home with the dog subject to an additional $25 per month pet fee. Prior to the

incident in question, the Howards had not received any complaints about the dog

or any information suggesting that the dog was vicious.

On July 3, 2022, Ms. Sizemore left her five-year-old daughter, Brylee,

in the care of her babysitter, Olivia Adkins, while she was at work. Ms. Adkins

asked Ms. Sizemore if Brylee could accompany the Adkins family to a cookout at

-2- the Belmont Street house.1 Ms. Sizemore was apparently informed that the dog

would be present at the cookout but was told there was no need for her to worry

because the dog was friendly. Ms. Sizemore acquiesced. Unfortunately, sometime

during the cookout the dog attacked Brylee, seriously injuring her face and scalp.

On October 18, 2022, Ms. Sizemore, acting on Brylee’s behalf, filed

suit against Ms. Parsons and the Howards.2 Ms. Parsons did not file an answer or

otherwise enter an appearance. The Howards, however, filed an answer denying

liability. Thereafter, the parties exchanged written discovery and both Ms.

Sizemore and Mr. Howard gave depositions.

On May 12, 2023, the Howards moved for summary judgment. In

their motion, the Howards argued that: (1) they cannot be held strictly liable for

Brylee’s injuries because were not the dog’s statutory owner as that term is defined

in KRS3 258.095(5); and (2) they were not negligent because they had no prior

knowledge that the dog posed a threat. Ms. Sizemore filed a response in

opposition to which the Howards responded.

1 It is unclear who was hosting the cookout as Ms. Parsons and Mr. Stewart were apparently out of town at the time. 2 Ms. Sizemore later moved to amend her complaint to add Mr. Stewart and various members of the Adkins family as defendants. This appeal was filed from the final order, with no issue raised as to those other potential defendants and without an amended complaint filed. 3 Kentucky Revised Statutes.

-3- On June 2, 2023, the trial court entered summary judgment in favor of

the Howards. The trial court certified that the judgment was final and there was no

just cause for delay. After the trial court denied her CR4 59.05 motion to alter,

amend, or vacate, Ms. Sizemore filed this appeal.

II. STANDARD OF REVIEW

Summary judgment is appropriate 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.” CR 56.03. The

movant bears the initial burden of demonstrating that there is no genuine issue of

material fact in dispute.

The party opposing the motion then has the burden to present, “at

least some affirmative evidence showing that there is a genuine issue of material

fact for trial.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 482 (Ky.

1991); Watson v. Landmark Urology, P.S.C., 642 S.W.3d 660, 666 (Ky. 2022). “A

party responding to a properly supported summary judgment motion cannot merely

rest on the allegations in its pleadings.” Versailles Farm Home and Garden, LLC

v. Haynes, 647 S.W.3d 205, 209 (Ky. 2022) (citing Continental Cas. Co. v.

Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955)). “[S]peculation

4 Kentucky Rules of Civil Procedure.

-4- and supposition are insufficient to justify a submission of a case to the jury, and

that the question should be taken from the jury when the evidence is so

unsatisfactory as to require a resort to surmise and speculation.” O’Bryan v. Cave,

202 S.W.3d 585, 588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. Co. v. Yates,

239 S.W.2d 953, 955 (Ky. 1951)).

“An appellate court’s role in reviewing a summary judgment is to

determine whether the trial court erred in finding no genuine issue of material fact

exist[ed] and the moving party was entitled to judgment as a matter of law.”

Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). The standard of

review for an appellate court is de novo because only legal issues are involved.

Isaacs v. Sentinel Ins. Co. LTD., 607 S.W.3d 678, 681 (Ky. 2020).

III. ANALYSIS

A. Strict Liability

Pursuant to KRS 258.235(4), “[a]ny owner whose dog is found to

have caused damage to a person, livestock, or other property shall be responsible

for that damage.” This statute creates “a form of strict liability for the owner of a

dog.” Benningfield ex rel. Benningfield v. Zinsmeister, 367 S.W.3d 561, 563 (Ky.

2012).

In Benningfield, the Court was called upon to determine whether a

landlord could be liable under the statute if his tenant’s dog bit a third party. In

-5- determining that the landlord could be liable, the Court noted that the statutory

definition of an owner at that time included “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.” Id.

(emphasis added). The Benningfield court reasoned that a landlord fell into the

latter category if he knowingly permitted his tenants to keep dogs.

If the law was the same today as it was at the time of Benningfield,

Ms. Sizemore might be able to hold the Howards strictly liable for her daughter’s

injuries. It is not. In 2017, the Kentucky General Assembly amended KRS

258.095(5) 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;

-6- KRS 258.095(5) (emphasis added). By revising the statute to require both

ownership and occupancy, the General Assembly excluded non-occupant

landlords, like the Howards, from the statute’s reach.

It is undisputed that while the Howards owned the property at issue,

they did not occupy it. Accordingly, the trial court properly granted summary

judgment to the Howards with respect to Ms. Sizemore’s strict liability claim.

B. Common Law Negligence

“At common law, a dog owner is not liable absent knowledge of the

dog’s vicious propensities, i.e., the ‘one free bite’ rule.” Horbach v. Forsythe, 667

S.W.3d 1, 7 (Ky. App. 2023). The rationale of the rule is grounded in

foreseeability. A dog owner who knows her canine has exhibited vicious

propensities in the past should anticipate and be on notice that it poses a future

danger. While a landlord is not technically an owner, it stands to reason that if a

landlord knowingly permits his tenant to harbor a vicious animal on the premises,

he could be held liable. Ireland v. Raymond, 796 S.W.2d 870, 872 (Ky. App.

1990).

While it is undisputed that the Howards were aware that the dog was

on the premises, there is no evidence that the Howards knew the dog was vicious.

It is true that Mr. Howard expressed some initial concern when told the dog was a

Great Dane due to the breed’s generally large size. That fact, alone, however, is

-7- insufficient. Id. To hold the Howards liable based on common law negligence,

Ms. Sizemore must be able to point to some evidence to show that they knew the

dog had vicious tendencies. Nothing in the record suggests that the Howards had

any knowledge that the dog had previously attacked someone, acted aggressively,

or posed any sort of danger. In fact, the evidence is to the contrary. Mr. Howard

testified that when asked about the dog, he was told that it was very friendly and

posed absolutely no danger. There is also no evidence that the Howards received

any complaints about the dog prior to the incident in question. Without such

evidence, Ms. Sizemore cannot prevail on her common law negligence claim

against the Howards making summary judgment in their favor proper.

On this point, Ms. Sizemore asserts that summary judgment was

premature. Summary judgment is proper only after a party has been given ample

opportunity to take discovery and then fails to offer controverting evidence.

Pendleton Bros. Vending, Inc. v. Commonwealth Finance & Administration

Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (citing Hartford Insurance Group v.

Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628 (Ky. App. 1979)). The

movant does not have to show that a party opposing summary judgment actually

completed discovery but only that there was sufficient opportunity to do so. Suter

v. Mazyck, 226 S.W.3d 837 (Ky. App. 2007). “The trial court’s determination that

a sufficient amount of time has passed and that it can properly take up the

-8- summary judgment motion for a ruling is reviewed for an abuse of discretion.”

Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010).

Ms. Sizemore filed her complaint on October 18, 2022. During the

next several months, the parties took the depositions of Mr. Howard and Ms.

Sizemore and engaged in some written discovery. Approximately nine months

passed between the time Ms. Sizemore filed her complaint and the trial court

granted summary judgment. Ms. Sizemore knew Ms. Parsons’s address. Indeed,

Ms. Parsons signed for the complaint at the address listed on the summons.

According to the complaint, Ms. Sizemore also knew the dog belonged to Ms.

Parsons. Had Ms. Sizemore made some attempt to depose Ms. Parsons but been

unable to do so, her failure might have been excusable. It does not appear from the

record, however, that Ms. Sizemore ever attempted to do so. In the absence of an

affirmative record of diligence, the trial court did not abuse its discretion when it

concluded that Ms. Sizemore had been given sufficient time to gather evidence in

her favor prior to taking up the Howards’ motion for summary judgment.

IV. CONCLUSION

For the reasons set above, we affirm the Boyd Circuit Court’s

judgment in favor of Donald and Barbara Howard.

ALL CONCUR.

-9- BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:

Jeffrey D. Hensley Andrew K. Wheeler Russell, Kentucky D. Luke Vincent Ashland, Kentucky

-10-