Kimberly Deramos v. Anderson Communities, Inc.

• Court: Kentucky Supreme Court
• Decided: February 20, 2025
• Docket: 2023-SC-0378
• Status: Published

Opinion

RENDERED: FEBRUARY 20, 2025 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0378-DG

KIMBERLY DERAMOS APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0563 JEFFERSON CIRCUIT COURT NO. 22-CI-000008

ANDERSON COMMUNITIES, INC. APPELLEE

OPINION OF THE COURT BY JUSTICE BISIG

REVERSING

Kimberly Deramos and her Shih Tzu, Princess, lived in an apartment

complex owned by Anderson Communities. While returning from a walk,

Deramos and Princess were attacked by a pit bull that Deramos alleges was

owned by a neighboring tenant. Princess died from the attack and Deramos

sustained injuries. Deramos sued Anderson Communities, alleging that

Anderson Communities negligently failed to maintain a safe environment for its

tenants. Ultimately, the Jefferson Circuit Court granted Anderson

Communities’ motion to dismiss for failure to state a claim pursuant to

Kentucky Rule of Civil Procedure (CR) 12.02(f), relying on the strict liability

dog-bite rule found in Kentucky Revised Statute (KRS) 258.235(4).

Importantly, Deramos did not rely on this statute in her complaint. The Court

of Appeals affirmed, similarly holding that Anderson Communities was not an “owner” as that term is defined by KRS 258.095(5) and therefore could not be

strictly liable for the injuries caused by the dog.

After granting discretionary review, considering oral arguments, and

carefully reviewing the record, we reverse and remand this case for further

proceedings consistent with this Opinion.

FACTS AND PROCEDURAL HISTORY

In January 2021, Kimberly Deramos lived in an apartment complex

owned and managed by Anderson Communities. Deramos was returning from

walking her Shih Tzu, Princess, when she and Princess were attacked by a dog

that Deramos alleged was owned by a neighboring tenant in a common area of

the apartment complex. Princess died from her injuries and Deramos

sustained injuries to her nose and both hands from the dog attack. Deramos

required surgery on one of her hands and later received counseling for Post

Traumatic Stress Disorder from the incident.

According to a written policy of the apartment complex, certain breeds of

dogs were not allowed as pets. Deramos alleged the dog that attacked her and

killed Princess was a pit bull, which is one of the restricted breeds. Deramos

filed a negligence claim against Anderson Communities and alleged it was

negligent in “maintaining a safe environment for tenants” and was “otherwise

negligent.” She sought damages for past and future medical expenses, pain

and suffering, and compensation for the loss of Princess.

In response, Anderson Communities denied liability and filed a CR 12.02

motion to dismiss for failure to state a claim upon which relief may be granted.

2 Anderson Communities relied on KRS 258.235(4), a strict liability statute,

which provides that “[a]ny owner whose dog is found to have caused damage to

a person, livestock, or other property shall be responsible for that damage.”

Anderson Communities argued it was not an “owner” under the statute and

thus could have no liability for the attack. Importantly, however, Deramos did

not cite this strict liability statute in her complaint, but instead complained

Anderson Communities negligently failed to maintain a safe environment for its

tenants and was “otherwise negligent.”

The Jefferson Circuit Court granted Anderson Communities’ motion to

dismiss and focused solely on Anderson Communities’ argument under the

strict liability statute that it was not an “owner” as that term is defined in KRS

258.095(5). That subsection states that a person who “[p]ermits the dog to

remain on or about premises owned and occupied by him or her” qualifies as

a dog “owner” for strict liability purposes. KRS 258.095(5)(b)3 (emphasis

added). The circuit court reasoned that Anderson Communities, as a

corporation, cannot actually occupy any dwelling, and that the intent of the

statute was clearly to include only landlords who actually lived on the

premises. Further, the circuit court opined that Anderson Communities’

banned breeds list evidenced that it did not allow dangerous dogs to be on the

premises and took active steps to prevent it.

Deramos filed a motion to reconsider, asserting that the circuit court

failed to address her negligence claims. Deramos also pointed out that no

3 discovery had taken place, but the circuit court denied the motion and entered

a final and appealable decision on April 26, 2022.

Deramos appealed to the Court of Appeals which affirmed the circuit

court. The Court of Appeals echoed much of the circuit court’s reasoning and

likewise concluded that Anderson Communities was not an “owner” under the

statutory definition and therefore not subject to strict liability for the dog

attack. Neither of the lower courts addressed Deramos’s general negligence

claim. We granted discretionary review to determine whether dismissal

pursuant to CR 12.02(f) was proper.

ANALYSIS

We must determine whether the circuit court erred in granting Anderson

Communities’ motion to dismiss. A motion to dismiss pursuant to CR 12.02

presents a pure question of law, so “a reviewing court owes no deference to a

trial court’s determination; instead, an appellate court reviews the issue de

novo.” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). “A motion to dismiss for

failure to state a claim upon which relief may be granted ‘admits as true the

material facts of the complaint.’” Id. (quoting Upchurch v. Clinton Cty., 330

S.W.2d 428, 429-30 (Ky. 1959)). Thus, “a court should not grant such a

motion ‘unless it appears the pleading party would not be entitled to relief

under any set of facts which could be proved[.]’” Id. (citation omitted).

Deramos’s complaint alleges that Anderson Communities was negligent

in maintaining a safe environment for tenants. Despite Deramos never citing

nor relying upon Kentucky’s dog bite liability statutes, KRS 258.095 and

4 258.235, both the circuit court and Court of Appeals rested their holdings on

principles and case law surrounding strict liability for injuries caused by dogs.

Put simply, the strict liability dog bite statute is inapplicable to Deramos’s

claim. Because “this Court does not issue advisory opinions[,]” Ex parte Smith,

664 S.W.3d 505, 508 (Ky. 2022), we will not analyze whether Anderson

Communities constitutes a statutory dog owner. However, we note that the

dog-bite strict liability statutes have undergone changes in recent years that

reflect legislative intent as to the imposition of strict liability to premises

owners.

In 2012, the Court decided Benningfield ex rel. Benningfield v.

Zinsmeister, 367 S.W.3d 561, 562 (Ky. 2012), and held that a landlord could be

liable to a third party for injuries caused by a tenant’s dog. 1 On June 29,

2017, the General Assembly redefined the statutory definition of dog owner. In

relevant part, the now-existing version of KRS 258.095(5)(b)3 defines a dog

owner as a person who “permits the dog to remain on or about premises owned

and occupied by him or her . . . .” (Emphasis added). Therefore, landowners

are only considered dog owners for strict liability purposes if they both own

and occupy the premises where the dog-related injury occurs.

1 Notably, in Justice Schroeder’s dissent criticizing the majority’s expansion of

liability, he mentioned that Benningfield also argued that even if the landlords were not statutory owners, they would still be liable under common law negligence principles. Id. at 573. In his dissent Chief Justice Minton opined that a landlord whose tenant’s dog injures a third party should be held liable under general negligence principles even when the injury occurs off the leased property. Id. at 575. 5 The General Assembly has commanded: “[a]ll 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). Generally, by creating a strict

liability statute, the legislature has expressed that dog owners shall be strictly

responsible for injuries caused by their dogs. However, by replacing the

“owned or occupied” language with “owned and occupied,” especially in light of

the Benningfield decision, the legislature has effectively reduced the imposition

of strict liability on landlords for injuries caused by a tenant’s dog.

“[W]e presume that the legislature is aware of the state of the law when it

enacts a statute, including the judicial construction of prior enactments.”

Indep. Bank v. Welch, 636 S.W.3d 528, 535 (Ky. 2021) (citation omitted). Here,

this awareness includes this Court’s interpretation in Benningfield that a

landlord can be a statutory owner of a dog for strict liability purposes. 367

S.W.3d at 569. Arguably, the General Assembly acted after the Benningfield

decision to address the Court’s seemingly broad interpretation of landlord

liability under the dog bite statute and chose to significantly narrow the

circumstances where a landlord could be considered a statutory owner of

another person’s dog.

Importantly, Deramos neither cited the strict liability dog bite statute nor

relied upon it. Instead, she filed a negligence claim. Negligence and strict

liability are two separate and distinguishable legal concepts with their own

legal standards. Strict liability imposes responsibility irrespective of fault or

intent – the mere fact that an injury occurred is enough to establish liability.

6 In stark contrast, in pursuing a negligence claim, proving fault is essential. A

plaintiff must prove a person’s actions, or inaction, fell below the applicable

standard of care, leading to injury or damage.

Although not binding on this Court, the Court of Appeals recently

examined the dog bite statute in Horbach v. Forsythe, 667 S.W.3d 1 (Ky. App.

2023). Horbach, a dog walker, was paid to walk the Forsythes’ dog and was bit

on the hand, suffering injuries. Id. at 2. Horbach’s complaint alleged the dog

owner was liable for both strict liability and negligence. Id. The Court of

Appeals ultimately agreed with the trial court’s grant of summary judgment in

favor of the Forsythes concluding that Horbach constituted a statutory owner

under KRS 258.095(5)(b)2 because the dog was in her care and Horbach was

therefore prohibited from suing the Forsythes for her injuries. Id.

However, the Court of Appeals highlighted that Horbach sued under two

theories of liability – strict liability and negligence:

Strict liability is not negligence; and one who is not strictly liable is not necessarily exempt from negligence—which is a point we have recognized at least twice before in similar circumstances. See, e.g., Paige v. McCord, No. 2017-CA-000188-MR, 2018 WL 6434518 (Ky. App. Dec. 7, 2018); Cruz v. Henderson, No, 2021-CA-0983-MR, 2022 WL 2898498 (Ky. App. Jul. 22, 2022) (addressing strict liability claims and common law negligence claims separately and under different legal standards in the context of dog bite liability).

Id. at 6. While Horbach involves a negligence claim against a dog’s secondary

owner and a dog’s primary owner, it aptly notes the distinction between a

statutory strict liability claim and a negligence claim—a distinction we find

significant here.

7 Deramos’s complaint alleges that Anderson Communities was negligent

in maintaining a safe environment for tenants and was “otherwise negligent.”

“Kentucky is a notice pleading jurisdiction, where the ‘central purpose of

pleadings remains notice of claims and defenses.’” Pete v. Anderson, 413

S.W.3d 291, 301 (Ky. 2013) (quoting Hoke v. Cullinan, 914 S.W.2d 335, 339

(Ky. 1995)). CR 8.01(1) requires that “[a] pleading which sets forth a claim for

relief . . . shall contain (a) a short and plain statement of the claim showing

that the pleader is entitled to relief and (b) a demand for judgment for the relief

to which he deems himself entitled.” As interpreted by this Court, “[i]t is not

necessary to state a claim with technical precision under this rule, as long as a

complaint gives a defendant fair notice and identifies the claim.” Grand Aerie

Fraternal Ord. of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky. 2005) (citation

omitted). Moreover, we have long recognized that “a plaintiff is the master of

his own complaint, and is thus entitled to plead his cause of action among

alternative courses of action as he deems best to pursue his litigation

objectives.” Whitley v. Robertson Cnty., 406 S.W.3d 11, 17 (Ky. 2013). As

such, a plaintiff is also entitled to “to decide what law he will rely upon . . . .”

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913).

Here, Deramos stated in her complaint that Anderson Communities was

negligent and that she sustained injuries as a result of that negligence. This

gave Anderson Communities notice of her general negligence claim. She also

did not invoke the statutory dog bite strict liability scheme, and therefore the

8 circuit court erred in dismissing that claim by applying strict liability precedent

and principles.

As noted above, the strict liability imposed on dog owners as codified in

KRS 258.235 and 258.095 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.” Benningfield, 367 S.W.3d at 566 (emphasis added). As

contemplated in Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky. 2018),

without these strict liability statutes, “common law negligence would govern

dog bite cases.” We agree with the Court of Appeals’ interpretation in Horbach

that KRS 258.095 was “designed to convert part of the liability otherwise

contemplated by the common law into strict liability.” 667 S.W.3d at 6-7.

Returning to our standards for resolving a motion to dismiss for failure to

state a claim, “the pleadings should be liberally construed in the light most

favorable to the plaintiff, all allegations being taken as true.” Fox, 317 S.W.3d

at 7 (quoting Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)). Here,

Deramos alleges in her complaint that the dog that attacked her and Princess

was an unauthorized breed of dog, and that she and Princess were in a

common area of the apartment complex when the attack occurred. In response

to Anderson Communities’ motion to dismiss, Deramos further added that the

dog that attacked her and Princess was a pit bull owned by another tenant,

and that pit bulls are on Anderson Communities’ “Restricted Breeds List.”

9 Tenants are required to disclose the breed of dog they intend to keep on the

premises and provide veterinarian records confirming the breed.

To reiterate, “a court should not grant such a motion unless it appears

the pleading party would not be entitled to relief under any set of facts which

could be proved[.]” Id. (citation omitted). Having met our generous notice

pleading standards, and including allegations of general negligence in her

complaint, Deramos is permitted to proceed with her claim against Anderson

Communities. Without taking any position on the merits of Deramos’s claims,

we hereby reverse the CR 12.02 dismissal. A negligence claim can proceed

even where a separate strict liability claim, especially one that was never

pleaded, might fail. As such, the circuit court erred in dismissing Deramos’s

complaint.

CONCLUSION

We reverse the dismissal of Deramos’s claim and remand this case to the

Jefferson Circuit Court for further proceedings consistent with this Opinion.

Lambert, C.J.; Bisig, Conley, Keller, Nickell, Thompson, JJ., sitting. All

concur. Goodwine, J., not sitting.

COUNSEL FOR APPELLANT:

Grover S. Cox Cox & Cox Law Office, PLLC

COUNSEL FOR APPELLEE:

J. Michael Wells Travis, Herbert & Stempien 10