Summary
In Spalding, David Spalding slipped on dog excrement outside of a home owned by Own Your Home, LLC, and injured himself.
Summary of this case from Insko v. PerrautOpinion
NO. 2017-CA-001647-MR
09-27-2019
DAVID ALLEN SPALDING APPELLANT v. OWN YOUR HOME, LLC APPELLEE
BRIEF FOR APPELLANT: Mark B. Wallace Louisville, Kentucky BRIEF FOR APPELLEE: J. Michael Wells Michael E. Krauser Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 15-CI-005046 OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: David Allen Spalding appeals from a June 9, 2017, opinion and order of the Jefferson Circuit Court granting summary judgment to Own Your Home, LLC. After careful review, we affirm.
The basic facts underlying this appeal are uncontested. Spalding filed his complaint on October 1, 2015. Spalding alleges he severely injured his ankle in October 2014 when he slipped and fell on dog excrement while performing HVAC work in the basement of a house owned by Own Your Home, LLC. Spalding sued Own Your Home and John Segevan, its tenant. Own Your Home, as landlord, moved for summary judgment, arguing only Segevan could be liable.
Spalding argued in response that this case presents a statutory exception to the general landlord liability laws under Kentucky Revised Statutes (KRS) 258.235(4) and 258.095(5). KRS 258.235(4) 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." At the time of Spalding's injury in 2014, KRS 258.095(5) defined "owner" as "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[.]" (Emphasis added). In its reply, Own Your Home argued that those statutes were intended to encompass dog bites and attacks, not slip and fall injuries caused by dog excrement.
In 2017, Kentucky Revised Statutes (KRS) 258.095(5) was amended to apparently eliminate a landlord such as Own Your Home from being deemed an owner of a tenant's dog. The statutory revision went into effect on June 29, 2017. It is undisputed that the former version of the statute applies to this case.
In June 2017, the trial court granted Own Your Home's motion for summary judgment, summarily concluding that "the injury suffered by [Spalding] is not the type of injury contemplated by the legislature nor by the Kentucky Supreme Court in its interpretation of the statute[s]. The facts involved in this matter do not fall within the scope of the dog bite statute." At the request of Own Your Home, pursuant to Kentucky Rule of Civil Procedure (CR) 54.02, the circuit court subsequently made that summary judgment ruling final and appealable. This appeal followed.
The tenant, John Segevan, is not a named appellee and the status of the claims against him are not at issue in this appeal.
The standard of review of an appeal of a circuit court's entry of summary judgment is well-established. Summary judgment is proper where there exists no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. CR 56.03; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences therefrom must be viewed in a light most favorable to the nonmoving party. Id. at 480. Because a summary judgment involves only questions of law, we review the matter de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Under Kentucky law, a landlord generally is not liable for the negligence of his tenant in the use of a leased premises. Carney v. Galt, 517 S.W.3d 507, 509 (Ky. App. 2017). Indeed, Own Your Home's duty as a landlord was only to warn Segevan of known latent defects at the time he rented the premises. See Carver v. Howard, 280 S.W.2d 708 (Ky. 1955). However, that does not end our review, as there is a recognized exception to the general rule—KRS 258.235(4), commonly referred to as the "dog-bite liability statute." Carney, 517 S.W.3d at 509. While the dog bite exception is not an issue, the question before us is whether KRS 258.235(4) extends liability to landlords for damages caused by a tenant's dog that arise from acts other than a dog bite.
Again, as noted in Footnote 1, had the injury in this case arisen after June 29, 2017, we harbor grave doubt that KRS 258.235(4) would have been applicable to a landlord in Kentucky.
To be liable under KRS 258.235(4), a person must first be an owner of a dog. The parties do not dispute that Own Your Home as landlord, could be deemed an owner under the statutory definition found at KRS 258.095(5) that was in effect in 2014. See Benningfield ex rel. Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012). Second, the owner's dog must have caused the damage at issue. Damage is not defined in the statutes, but KRS 446.080(4) provides that "[a]ll words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning." The definition of "damage" is functionally the same in both legal and common usage. See Black's Law Dictionary 471 (10th ed. 2014) (defining "damage" as "[o]f, relating to, or involving monetary compensation for loss or injury to a person or property[.]"). For purposes of this appeal only, we will presume that the injury suffered by Spalding constituted "damage" within the definition of the statute.
In addition, Own Your Home has not argued in this case that Spalding's injuries (i.e., his "damage") were not caused by Segevan's dog. --------
Notwithstanding, Own Your Home persuasively argues that the overall tenor of KRS 258.235 provides that it was intended to encompass only damage stemming from dog bites or attacks. Indeed, the statute is frequently referred to as the "dog bite" statute. See, e.g., Zinsmeister, 367 S.W.3d at 562. This interpretation is consistent with other subsections of the statute that explicitly address vicious, attacking dogs. The Kentucky Supreme Court explained in Zinsmeister that KRS 258.235 was part of a legislative "scheme to displace or abrogate the common law rule on dog-bite liability . . . presumably to create incentives for various actors to take steps to reduce the chances of dog bites." 367 S.W.3d at 566 (emphasis added). And, more recently, our Supreme Court referred to KRS 258.235(4) as governing "dog bite law" and being "the progeny of years of evolution in the law of dog attacks." Maupin v. Tankersley, 540 S.W.3d 357, 359-60 (Ky. 2018). Dog excrement is plainly neither a bite nor an attack. Thus, we agree with the trial court that Spalding's ankle injury, caused by slipping on dog excrement, is not the type of "damage" that the legislature intended to address in KRS 258.235(4). Accordingly, we cannot extend liability to a landlord under the facts of this case.
For the foregoing reasons, the June 9, 2017, opinion and order of the Jefferson Circuit Court granting summary judgment to Own Your Home, LLC, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mark B. Wallace
Louisville, Kentucky BRIEF FOR APPELLEE: J. Michael Wells
Michael E. Krauser
Louisville, Kentucky