By Sarah Tilley
A recent decision by the Supreme Court of Kentucky increases landlords’ exposure to liability for injuries caused by their tenants’ dogs. In Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012), the Court overturned past precedent and found that henceforth a Kentucky landlord may be liable for injuries caused by a tenant’s dog that he or she permits to remain on or about the rented property–even if the landlord did not know of the dog’s dangerous propensities.
In the Benningfield case, a child was walking in the neighborhood when he was approached by a male Rottweiler in the middle of the street. After the child took off running, the dog chased him and attacked him on the sidewalk, causing the child physical injuries. The dog owner’s parents, who lived across the street from where the attack occurred, kept the dog in an enclosed pen in their fenced-in backyard. The parents rented their single-family residence from the Zinsmeisters, who lived next door. After initially giving oral permission to their tenants to keep the dog on the property, the Zinsmeisters later revoked that permission. However, the Zinsmeisters took no affirmative steps to make sure the dog was removed from the property.
Kentucky’s dog bite liability statute, 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.” Although a landlord may not typically be considered the owner of his or her tenant’s dog, an “owner” for purposes of the dog bite liability statute is broadly 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.” KRS 258.095(5). Interpreting these statutes, the Court in Benningfield held that landlords may qualify as statutory dog owners if they permit their tenants’ dogs to remain on the property they own.
Not every landlord in a dog bite case will deemed an owner and thus strictly liable for injuries caused by his or her tenant’s dog. A landlord is only a statutory owner when, with the landlord’s permission, the dog remains “on or about” the premises. But what exactly does it mean for a dog to be on or about the premises? The Court clarified that a landlord is only liable for dog attacks that occur on the property or in areas immediately adjacent to the property – such as on the sidewalk or just off the curb. A landlord’s liability for injuries caused by his or her tenant’s dog does not extend to anywhere the dog may roam or be taken. In the Benningfield case, the Zinsmeisters were not dog owners under the dog bit liability statute because the dog attack occurred on the sidewalk across the street from the rented property and not on or about the rented property.
Although the Zinsmeisters were ultimately found not liable for the injuries caused by their tenants’ dog, the Benningfield case represents an important change in Kentucky’s dog bite law, making it easier for plaintiffs to prevail against landlords who permit their tenants to have dogs. Landlords should take special precautions to protect themselves. As the Court noted in the Benningfield case, a landlord, often with more to lose than his or her tenant, may be more likely to anticipate the danger and difficultly of keeping a dog and plan for such a contingency by either barring dogs from the property or purchasing adequate insurance. If you are a landlord, make sure you have an insurance policy in place that would provide you with a defense and indemnification in the event your tenant’s dog injures another person. You should also consider changing your rental policies and contracts to prohibit your tenants from having or keeping dogs. The Insurance Defense Group lawyers at Goldberg Simpson can advise you regarding such policy and contract modifications.