LANDLORDS ARE NOW LIABLE FOR FIDO AND CUJO
There’s an old saying that the world consists of two kinds of people: those who love dogs and those who don’t. This creates a bit of a conundrum for landlords: do I open my property to dogs and other pets and risk additional damage to my property, or do I create a no-pet policy and risk losing a significant portion of the potential resident pool? Since 2012, there’s been a new factor to consider in your decision-making: increased landlord liability for injuries from dog bites.
Until mid-2012, landlords didn’t have to worry about liability from dogs on their property unless they knew (or should have known) that the dog was dangerous. Specifically, landlords were not strictly liable (liable no matter what) for damages from dog bites, but rather were only liable if they (1) were aware of the dog’s dangerous propensities and (2) failed to exercise ordinary care to protect their tenants. This was known as the “one free bite” rule, as the notion was that a dog got “one free bite”, and after that, the landlord was on notice that the dog was dangerous, and therefore needed to use reasonable care to prevent the dog from causing damage. In other words, if you knew the dog was more like Cujo than Fido, you were liable for the damage.
The statute at issue is KRS 258.235, a state law that holds dog owners strictly liable for damage caused by their dog. The word “owner” is defined 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.” Prior to June 2012, courts had interpreted this statute to exclude landlords.
However, on June 21, 2012, in the case of Benningfield v. Zinsmeister, the Kentucky Supreme Court expanded the definition of "owner" in KRS 258.095(5) to include certain landlords. The Court decided that a landlord constitutes an “owner” of any dog that has a tenancy (i.e., is permitted to be cared for or to live) on the landlord’s property, even on a temporary basis. Under this reasoning, landlords are not be liable for dogs who merely stray onto the property, or dogs that are allowed to come onto the property for a short visit (i.e., by a neighbor who is out walking the dog), with no intention of staying for any significant period of time. But, landlords are liable for damage caused by any dog being housed on the landlord’s property, even temporarily, if the landlord is aware of the dog and it causes damage "on or about the premises". In this context, awareness of the dog will constitute permission for the dog to be on the property unless overt action is taken to get the tenant to remove the dog. The Court interpreted the phrase “on or about the premises” to mean “on the property or so close to it as to be within immediate physical reach.” So, even if the dog is typically mild-mannered and friendly, landlords are still liable if it gets agitated and causes damage on the property.
There was an effort in the Kentucky State Senate in 2014 to amend KRS 258.095(5) to exclude landlords from liability, therefore reverting the liability standard back to the "one free bite" rule. The measure passed the Senate, but never made it out of the House of Representatives, purportedly due to the lobbying influence of personal injury attorneys. As a result, the Benningfield case remains the law of the state.
So, here's what you need to remember: if you know that a dog is being housed on your property and take no action to get it removed, you will be liable for any damage it causes on or with reach of the property.
One obvious response would be to exclude all dogs from your rental properties. Excluding dogs would at once eliminate potential dog-bite liability (unless you learn that someone violates this provision and fail to take responsive action), but would also eliminate dog owners and dog lovers from your prospective tenant pool.
Another popular option is to restrict certain breeds that are historically thought to be more dangerous than others. This can be a tricky endeavor, as there is an oft-repeated notion that poodle bites cause more trips to the emergency room than those of any other breed. Regardless, one rarely sees anyone mauled by a poodle, but such cases are seemingly seen with some regularity in other breeds. This is an issue to discuss with your insurance company, as your agent should be able to separate fact from fiction on these issues.
In the event that you choose to allow dogs on your properties, you would be wise to take the following steps in order to reduce your risk in light of the Benningfield case:
- Give timely termination notices to tenants who have unauthorized animals and then follow through with an eviction if the animal is not removed. Such action would be evidence that the animal was not “permitted” on the premises.
- Review insurance policies to determine if damages caused by tenants’ dogs, even in the absence of negligence by the landlord or landlord’s agent, are covered by your current policy.
- Revise lease provisions to either exclude dogs, restrict dangerous breeds, or to identify the permitted dog in such detail so as to be able to deny liability for dogs that were not specifically permitted to be on the property.
One can only assume the Kentucky Supreme Court intended to make rental properties safer for residents and neighbors; there’s no question that their decision has made pet-friendly properties a more dangerous proposition for landlords.