Dog-Bite Liability Update: New Legislation Pending

In my very first post on this site, found here, I wrote about the 2012 case of Benningfield v. Zinsmeister in which the Kentucky Supreme Court interpreted the state’s dog-bite statutes in such a way as to hold landlords liable for injuries caused by dogs that they permit to be cared for or housed on their property if the dog causes damage on the property or within immediate physical reach of the property. The relevant liability statute, found here, holds owners liable for injuries and damages caused by their dog, and the Court interpreted the definition of “owner” to include landlords.

In 2014, the Kentucky State Senate passed a bill that would have revised KRS 258.095(5), the statute that defines an “owner” of a dog, to effectively undo the Kentucky Supreme Court’s ruling in Benningfield. That bill was defeated in the state House of Representatives, meaning that Benningfield is still good law, thus leaving landlords with increased liability for dog bites. The main group opposing the bill at that time were lobbyists employed by personal injury attorneys, who support the Benningfield decision because it provides another source of revenue from which they (and their clients) can collect.

NEW LEGISLATIVE EFFORT: SB 68

A couple of weeks ago, Senator Ralph Alvarado (R – Winchester) sponsored Senate Bill 68, another attempt to amend KRS 258.095(5) in a way that would effectively undo the Benningfield ruling by changing the definition of the “owner” of a dog. The Benningfield Court based its ruling on the current version of the statute (found here) that defines the “owner” of a dog as (1) every person who has a right of property in the dog; and (2) 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;

SB 68, which I’ve linked here, would modify this definition to include:

     1. Every person having a right of property in the dog; and
     2. every person who:

          a. Keeps or harbors the dog;
          b. Has it in his care;
          c. Permits it to remain on or about premises owned and occupied by him; or
          d. Permits it to remain on or about premises leased and occupied by him;

The effect of this change would seemingly be to undo the Benningfield ruling by taking away the language on which the Court relied in making the decision. With new language requiring that an “owner” of a dog must permit it to remain on premises that he owns/leases AND occupies, landlords would not carry liability as an owner of the dog.

SB 68 passed through the Senate Committee on Agriculture, then was approved 31-6 in the Senate. It will now go to the House of Representatives for consideration, which is where the 2014 version of the bill was defeated. The bill is expected to again face significant opposition before it can be passed.

The opposition lobby believes that it is necessary to hold landlords liable because (1) they are in a position to control whether and/or which dogs are allowed on the property, (2) the individuals who actually own the dogs often have no assets from which injured parties can recover for their losses, and (3) SB would remove any liability from landlords.

OPPOSITION ARGUMENT #1: LANDLORDS CAN BAN DOGS IF THEY WANT TO ELIMINATE LIABILITY

While it’s true that landlords can decide to outlaw dogs completely in order to avoid the additional liability risk, doing so would have significant negative consequences for landlords, tenants, and dogs. For landlords, it would drastically decrease their potential tenant pool, as recent statistics suggest that there are over 50 million households who own a dog, and almost 70% of them consider their dog to be a part of the family. Such tenants are not going to get rid of their dogs to qualify for rental housing, and will simply flock to landlords who allow them to keep their dogs.

For tenants, the pool of available housing for tenants with pets would decrease. Statistics show that pet owners already have trouble nationwide finding pet-friendly communities, and the Benningfield decision only exacerbates that problem in Kentucky. In addition, there is little doubt that landlords who remain dog-friendly will be forced to raise their rents and fees to compensate for increased liability costs and higher insurance rates that result from Benningfield. So, landlords will lose tenants, and tenants will have a harder time finding dog-friendly housing and will pay higher prices when they do. That’s a lose-lose proposition.

In addition, the tenants who are forced to get rid of their dogs to remain in their rental homes will often take the animals to the local humane society or shelter as a quick fix. Overcrowding in these shelters is already a problem, and the Benningfield decision will only serve to make it worse. I've prosecuted numerous eviction cases based on tenants having unauthorized dogs. In some cases, the tenants choose to give up their dog in order to stay in their rental home. Almost every time, the local shelter or humane society ends up being the drop-off point for the dogs. Thus, not only is Benningfield a losing proposition for landlords and tenants, it's a losing proposition for dogs as well.

OPPOSITION ARGUMENT #2: LANDLORDS CAN RESTRICT DANGEROUS BREEDS

The other option, according to those who oppose SB 68, is for landlords to only restrict certain breeds that are known to be dangerous and, thus, create the greatest risk of liability. Most statistics are in agreement that Pit Bulls, Rottweilers, wolf hybrids, German Shepherds, and Chows are responsible for the most serious attacks, but this will only theoretically reduce the odds of liability for landlords while increasing their administrative burden. Such restrictions put landlords in the business of breed identification, which is well beyond the expertise of any non-veterinarian. My experience in prosecuting breed restriction-based eviction cases has shown me that very few tenants admit that their dog is a Pit Bull, Rottweiler, etc. Instead, they claim the animal is some type of mixed breed animal that is not restricted, and oftentimes they are correct, at least to an extent. Often, tenants don’t even know the exact breed of the dog, and neither do the landlords. As a result, someone is going to have pay a veterinarian to make a determination, or have the dog undergo a DNA test to make a determination, and such tests are often inconclusive.

Moreover, as the ASPCA and other groups point out, a dog’s tendency for aggression goes well beyond its breed to its training and history. Even dogs from breeds thought to be “friendly” such as Labradors and Retrievers behave aggressively in certain circumstances, especially if they have a history of being abused. In short, there’s often no way for a landlord to know when processing a rental application whether a dog has a tendency for aggression. As a result, it’s a bad policy to hold landlords liable for injuries caused by a dog that, from all appearances, seems friendly.

Finally, Senate Bill 116, introduced earlier this session, seeks to prohibit city and county governments from making laws that restrict entire breeds of dogs. While this law would not prohibit landlords from restricting certain breeds in their leases, it still highlights the growing support for notion that one cannot identify a dangerous dog merely by reference to its breed. 

OPPOSITION ARGUMENT #3: VICTIMS OFTEN CANNOT RECOVER FROM DOG-OWNING TENANTS, SO THE LANDLORD SHOULD ALSO BE LIABLE

This is simply a substitute-your-victim argument. The proponents’ moral calculation has concluded that it’s better for the landlords to pay, even if they did absolutely nothing wrong, than for victims to be, either in whole or in part, unable to be compensated for their losses. While no one wants to see the victim of a dog-bite have to suffer financial loss in addition to the pain and injury endured, this injustice should not remedied by taking money from another innocent party. At this point, the opposition will argue that the landlord is not an innocent party because he/she allowed the dog on the property. But, again, in most instances, the landlord will not have any reason to believe that the dog was a danger to others and will have done nothing wrong by permitting it to be on the property. Making an innocent landlord liable for the injuries of an innocent victim does not correct an injustice, it only shifts it to a different innocent party.

OPPOSITION ARGUMENT #4: SB 68 WOULD LEAVE NO RECOURSE AGAINST LANDLORDS

The final argument put forth by opponents of SB 68 is that the bill would remove any potential liability for the landlord, and would not reinstate the “one free bite” rule that existed prior to the Benningfield decision. I don't think this is true, as all injured parties still retain a claim for recovery when another person acts negligently. If the landlord knew (or should have known) a dog was dangerous and failed to take reasonable precautionary steps, there is little doubt that courts will hold the landlord liable under a negligence theory.

I think this is the proper standard. Landlords should not be liable for injuries or damages caused by dogs on their properties unless they knew or should have known that the dog was dangerous and failed to take reasonable precautionary steps. It gives landlords incentive to take action against tenants whose dogs are a danger to others, but does not make them the insurer against injuries caused by dogs who seemed to be friendly and had no history of aggressive behavior.

ACTION STEP: CONTACT YOUR STATE REPRESENTATIVE

As a result, I’m a proponent of SB 68 and think it should be enacted. As noted above, the next step is consideration in the state House of Representatives. I urge you to contact your state representative and encourage them to support the bill in the state House. If you are unsure of your state House rep, go to this link, and click on Who’s My Legislator. Once you know your rep, this link will give you their e-mail address. Your calls and e-mails will make the difference.