In my very first post on this site, found here, I wrote about Kentucky’s then-current law on liability for landlords for dog-bites on their rental property. The law at that time centered around a 2012 case, 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 certain dogs on their rental property if the dog causes damage on the property or within immediate physical reach of the property. I’m glad to finally get to provide an update on that law: it’s changed. Landlords are no longer strictly liable for dog bites caused on their rental properties.
Here’s how it all transpired. Kentucky has a statute, KRS 258.235(4), that creates strict liability for a dog’s owner for any damage caused by the dog. Strict liability means the owner is liable regardless of any other factors, even if he did nothing wrong. The definition of owner was found in KRS 258.095(5), which included every person permits the dog to remain on or about premises owned or occupied by him. Until 2012, the courts had interpreted this statute to exclude landlords from the definition of “owner”. As a result, a landlord did not was not strictly liable for dog bites on his rental property, but rather was only liable if he was negligent in relation to the dog.
The Benningfield decision in 2012 changed this. The Kentucky Supreme Court held that because when a landlord permits a dog to be housed on property that it owns, even temporarily, he qualifies as the dog’s “owner” under KRS 258.095(5) and is therefore strictly liable for any damage caused by that dog on the property or within an arm’s length of the property.
This ruling became the law of the state for landlords, and landlords immediately undertook efforts to get it changed. Bills were introduced in the state legislature in 2014, 2015, and 2016 to amend KRS 258.095(5) to exclude landlords from the definition of “owner”, which would have the effect of eliminating them from the strict liability faced by dog “owners”. These bills regularly passed the State Senate with relative ease, and always died in the House of Representatives, typically stalling in the Judiciary Committee without discussion or votes being taken.
That changed in 2017, as House Bill 112 passed both houses of the legislature with ease and was signed into law by the governor on March 20, 2017. HB 112 amended KRS 258.095(5) to read that an owner of a dog is someone who permits it to be housed on property “owned AND occupied by him”, rather than “owned OR occupied” by him. Thus, unless the landlord occupies the property that he owns or leases, he does not meet the definition of a dog “owner” and therefore is not strictly liable for damage caused by the dog. This change took effect on June 29, 2017.
While it is still early and there have been no published rulings by the courts on such matters, it is my expectation that courts will primarily analyze dog-bite cases involving landlords under the negligence standard that was in effect prior to the Benningfield decision in 2012. Previous cases have established that landlords are liable for negligence involving dog bites if:
- the landlord knew or should have known that the dog was dangerous;
- the damage took place in an area under the control of the landlord; and
- the landlord failed to take reasonable steps to prevent the damage
So, landlords can breathe a little easier now, knowing that they won’t be liable unless they permit dogs or other animals that they reasonably should know are dangerous on their properties. However, the new law doesn’t mean that landlords can be asleep at the wheel regarding the pets of their tenants. Here are some steps to take to minimize your risk of liability:
- Require your written consent for the tenant/applicant to have a pet. This helps you to control what animals are permitted on your property.
- Make sure your application and lease/pet addenda prohibits animals that exhibit dangerous behavior (growling, bites, attacks, etc.) and requires their removal from the property. This allows you to remove dangerous animals and/or their owner if the owner fails to remove them.
- Make sure your application requires prospects give descriptive information about the animal and to disclose any aggressive behavior exhibited by the animal in the past. This gives you the best chance of getting information that would allow you to reject animals that would be dangerous.
- For current tenants who want to get a pet, require them to complete a Pet Request Form that gives you descriptive information about the animal and requires them to disclose any aggressive behavior exhibited by the animal in the past.
- Respond to complaints of dangerous or aggressive behavior quickly and decisively. “I meant to do something about that, but I’ve just been so busy” is not a good defense when that aggressive behavior you were told about turns into a victimized tenant. As a matter of fact, that's never a good defense.
There’s one major item that’s missing from that list: “dangerous breeds”. I’m not to the point that I insist that landlords restricting dangerous breeds (yet). However, I do acknowledge the there’s a good argument for doing so; namely, that certain breeds of dogs are innately dangerous. You can be sure that if a Pit Bull, Rottweiler, German Shepherd, Doberman Pinscher, or Chow bites someone on your property, you are going to get sued on the theory that such animals are inherently dangerous, and therefore you should have taken steps to prevent injury to your tenants by keeping them off the property. At this point, I don’t think that’s a winning argument unless the particular dog in question had exhibited dangerous behavior. However, I would expect a lawsuit that you’ll have to spend money to defend.
My parting thought is a reminder that these rules are for pets, not for Assistance Animals for tenants/applicants who need an animal because of their disability. Assistance Animals are governed by other rules. For more information, check out these articles or, even better, check out my video training courses on the topic here.
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- Tags: dangerous propensities, dog bite, dogs, legislation, liability, negligence, one-free-bite rule