Sigler v. Curtis
| Decision Date | 23 October 2020 |
| Docket Number | NO. 2019-CA-1628-MR,2019-CA-1628-MR |
| Parties | ANTHONY SIGLER APPELLANT v. JASMINE CURTIS AND MARY BETSY CURTIS APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
Tony relied on KRS1 Chapter 258 and KRS 258.990(2) to bring suit after he was attacked by a dog while traversing Betsy's private property in 2011. The trial court determined that Tony's claim failed because he had been trespassing on Betsy's property at the time of the attack and could not prove that either of the Curtises owned the dog responsible.
Having reviewed the record in conjunction with all applicable legal authority, we affirm the trial court's judgment.
The Sigler and Curtis families became neighbors at some point prior to 2011, when Tony and his wife, Rhonda, purchased a parcel of property from Betsy. At first, the two families were on good terms, and they socialized at several cookouts and birthday parties on each other's properties. However, the relationship had since soured, and the parties did not have a social relationship at the time of the incident. Although Tony testified that at one time he would visit Betsy on her property and she his, even Tony admitted that he had not been on Betsy's property since the fall of the prior year.2
In 2011, Betsy owned approximately thirty acres of land in a semi-secluded area of Bullitt County. Her property included two residences: a main house where Betsy resided and a smaller cottage her daughter Jasmine then occupied. Betsy's property bordered on the neighborhood in which Tony and Rhonda lived, although her property was separated from the Siglers' by a street. Betsy's property was entirely separate from the neighborhood, as her gated driveway connected to an outside road. However, at the edge of Betsy's property, a dirt "path" led up from the neighborhood in which the Siglers resided.
According to Betsy, the path was created when her waterline was installed and connected to the water main, but it was not intended to be a walkway to her property. Testimony from all parties indicated that the path was used primarily by Betsy and her children, although Tony claimed that he used this path when he went to visit Betsy. However, Rhonda testified at trial that she had observed Betsy prevent others from using the path when Betsy saw them attempt to do so. Instead, Betsy expected visitors to use the driveway to enter her property,posting "No Trespassing" signs throughout her property, including near the path, to discourage such action. Betsy had a number of "No Trespassing," "Private Property," and "Beware of Dog" signs throughout her property, and some portions of the property were secured by fencing.
In 2011, Betsy and Jasmine each owned German Shepherd dogs, Roxie and Charlie, respectively, for companionship and protection. As a rule, they kept their dogs tethered outside during the day while they were away from home at work, a fact attested to by Tony. However, both Rhonda and Betsy testified that at any given time, there were several other dogs roaming the neighborhood and surrounding areas freely. Betsy identified three of these dogs as two other German Shepherds and a Boxer belonging to neighborhood families.
On the afternoon of April 26, 2011, Tony entered Betsy's property, intending to discuss some unsightly runoff that was draining from Betsy's property onto his driveway. Rather than use Betsy's driveway, Tony opted to use the dirt path on Betsy's property as a shortcut to her house. Tony had not been invited onto Betsy's property, nor had he called ahead to inform her that he was coming over to discuss the runoff issue. All parties concurred that they were not on speaking terms at the time that Tony entered Betsy's property. In fact, Betsy stated that, at this point, she and her family had not interacted socially with the Siglers for approximately eighteen months. Rhonda agreed, testifying that she could notrecall the last time the parties socialized before the incident because they were not on good terms.
Unbeknownst to Tony, Betsy was still at work, having recently begun a new job as a school teacher. None of the Curtis family was home, although there was an old truck parked in the driveway. Betsy and Jasmine testified that, prior to leaving home, they had tethered Roxie and Charlie outside in the yard with wire cords as usual. Jasmine recalled that both dogs were still tethered when she left the property that morning.
When Tony was approximately halfway through the yard to Betsy's house, he spotted a German Shepherd approaching him from about twenty feet away. The dog was untethered and moving slowly toward him, and it appeared to be aggressive - its tail was not wagging. Tony knew that the Curtis family's dogs were not supposed to be loose. Despite these observations, Sigler continued toward Betsy's residence, and the dog attacked. The dog bit Sigler on the back of the right arm as he raised his arm to shield his face. After the bite, a second German Shepherd dog appeared, and Tony believes that this prevented the attacking dog from biting him again. Tony claimed that the dog that bit him wasCharlie, Jasmine's dog, and the dog that warded off any further attacks was Roxie, Betsy's dog, both of whom were supposed to be tethered.3
Tony yelled for help, but no one came to his aid, so he continued up to Betsy's house. When he realized no one was home, Tony armed himself with a rake from Betsy's garden and returned the way he had come. Once home, Tony called Rhonda at work so that she could take him to receive medical treatment for his wounds. Rhonda called Betsy to tell her that Tony had been bitten, who in turn called Jasmine. Tony received treatment and ultimately sustained no serious lasting injuries, although he still experiences a numb sensation in his arm around the bite site.
On April 24, 2014, Tony and Rhonda filed suit in Bullitt Circuit Court against Betsy, Jasmine, and David Curtis, Betsy's husband, relying on KRS Chapter 258 and KRS 258.990(2). After a period of inactivity, the trial court dismissed the case on July 23, 2015, for want of prosecution. The trial court set aside this order on August 10, 2015, but no immediate activity resulted.
On July 10, 2019, more than five years after filing suit, Tony moved for partial summary judgment, arguing that the Curtises were strictly liable for hisinjury as a matter of law pursuant to KRS 258.235(4) and Maupin v. Tankersley, 540 S.W.3d 357 (Ky. 2018). Betsy filed a response to Tony's motion for summary judgment and her own cross-motion for summary judgment. She maintained that Tony was a trespasser on her property at the time of the incident and, as such, she could not be held strictly liable under KRS 258.095(6). She argued that, according to KRS 258.095(6), a dog owner shall not be liable for a dog "attack" on a person who has illegally entered or is trespassing on the dog owner's property.
On August 5, 2019, the court heard oral argument on the parties' motions for partial summary judgment. The court found that there were material issues of fact and denied the motions for summary judgment. A bench trial was held on August 9, 2019. Tony, Betsy, and Jasmine were present and represented. Defendant David Curtis was not present, and his court-appointed warning order attorney, Victoria Oakley, did not appear.
The trial court rendered its judgment and findings of fact on September 27, 2019. Therein, the trial court made two key findings of fact. First, the court found that Tony was a trespasser on Betsy's property at the time of the dog attack, rendering KRS 258.095 inapplicable to his claim. The trial court determined that because of Betsy's attempts to keep others from using the path to enter her property and the posted signage, the path Tony used to gain entrance toBetsy's property was not "an acceptable means of egress to and from [Betsy's] residence." Order at 4. Based on this finding, the trial court concluded:
Second, the trial court found that Tony had not satisfied his burden of proof in establishing that the dog that bit him was owned by either of the Curtises. The trial court noted that although Tony claimed he could tell the...
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