Terry v. Elam
| Decision Date | 14 September 2012 |
| Docket Number | NO. 2011-CA-001006-MR,2011-CA-001006-MR |
| Parties | PAULA TERRY, ADMINISTRATRIX OF THE ESTATE OF ALLEN TERRY APPELLANT v. JAMES ELAM AND BARBARA ELAM APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
This appeal arises out of a single-vehicle automobile accident that occurred on October 7, 2009, on Bybee Road in Clark County, Kentucky. The driver of the vehicle, Allen Terry, died as a result of injuries sustained in the accident. The evidence reflects that Allen's vehicle left the road and collided with a metal fence, several fence posts, and a brick mailbox. The accident occurred adjacent to rental property at 5235 Bybee Road that was owned by the Elams.
The Elams had rented the property to Daniel and Betty Ferguson for more than nine years, but the parties had never entered into a written lease agreement. At the time of the accident, the Fergusons owned two "outside" dogs and three "house" dogs. Although they are not mentioned in the police incident report, two of the "house" dogs - "Taco" and "Izzy" - were subsequently found dead on Bybee Road just north of the accident scene.
On June 10, 2010, Terry's estate ("the Estate") filed a wrongful death complaint against the Fergusons and the Elams in the Clark Circuit Court. The Estate alleged that the accident was the result of a collision with the Fergusons' dogs, which were "running at large" on Bybee Road due to negligent ownership and control by both the Fergusons and the Elams. The complaint set forth that the Elams were liable for negligence per se pursuant to Kentucky Revised Statutes (KRS) 258.095 and 258.235, as well as local ordinance. The Estate also asserted a common-law negligence claim against the Elams.
On February 2, 2011, the trial court granted partial summary judgment to the Elams as to the Estate's statutory and ordinance-based claims of negligence per se. The Estate did not challenge this decision on appeal. After further briefing, the trial court entered an order on May 10, 2011, granting the Elams summary judgment as to the Estate's common-law negligence claim. The court justified its decision as follows:
(Emphasis in original.) It is from this order that the Estate now appeals.
The standards for reviewing a trial court's entry of summary judgment on appeal are well-established and were concisely summarized by this Court in Lewis v. B & R Corporation, 56 S.W.3d 432 (Ky. App. 2001):
The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial."
Id. at 436 (internal footnotes omitted). Because summary judgments involve no fact finding, we review the trial court's decision de novo. 3D Enterprise Contracting Corp. v. Louisville & Jefferson County Metropolitan Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005); Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
The Estate contends that the trial court failed to view the record in the light most favorable to it because the court failed to assume that the Elams knew that the Fergusons' dogs were allowed to run at large. However, the trial court's order reflects its belief that "[e]ven if the landlord was aware of this activity running at large is not the same as a dangerous propensity." Thus, the court appeared to take this fact into account in reaching its decision. The Estate also argues that the trial court applied an improper legal standard in considering the Elamses' motion for summary judgment and failed to properly articulate Kentuckylaw as it applies to the facts at hand. For reasons that follow, we disagree with those assertions.
The Estate contends that entry of summary judgment was inappropriate as to its negligence claim against the Elams. The Estate specifically contends that a landlord can be held liable in negligence for injuries caused by his tenant's dogs where the landlord is aware of the dogs' propensity to "run at large." In considering this issue, we emphasize that we have been presented solely with the question of whether the trial court erred in granting summary judgment as to the Estate's common-law negligence claim. The question of the applicability of KRS 258.095 and 258.235 - the dog-injury liability statutes - or any local ordinance in this case is not before us.1
"As a general proposition, it has been written often that a landlord is not liable for the negligence of his tenants in the use of leased premises." McDonald v. Talbott, 447 S.W.2d 84, 85 (Ky. 1969). However, there areexceptions to that rule. Id. Of particular relevance to this case, our courts have historically recognized that landlords may be held liable in negligence for injuries caused by a tenant's dog, but only in very specific circumstances. In order to establish a duty on the part of a landlord with respect to a tenant's dog for purposes of a common-law negligence action, the plaintiff must establish that the landlord had: (1) knowledge of the dog's vicious or mischievous propensities and (2) control over the area where the incident in question occurred. See Benningfield, 367 S.W.3d at 573 (Schroder, J., dissenting in part but concurring in result); see also McDonald, 447 S.W.2d at 85-86; Ireland v. Raymond, 796 S.W.2d 870, 871-72 (Ky. App. 1990).2
The trial court determined that the Elams could not be held liable in this case since the subject accident occurred on a public roadway, i.e., in an area out of the control of the Elams. The Estate contends that the trial court's determination was erroneous because there is "a genuine issue of material fact regarding whether the accident occurred on or off the leased premises." However, this argument was never raised before the trial court or, if it was, the Estate has not directed us to where it was preserved. Instead, the Estate consistently argued below that Allen Terry's death "was a direct and proximate result of [the Fergusons'] dogs being at large in the roadway." It is well-established that an appellant "will not be permitted to feed one can of worms to the trial judge andanother to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). Therefore, we assume that the accident did, in fact, occur on a public road.
In Ireland, this Court considered whether a landlord could be held liable for injuries resulting from an attack by his tenant's dogs when the attack did not take place on the rented premises. The circuit court in that case determined that the landlord could not be held liable, and we affirmed, holding that because "the injuries were not received on the leased premises, and there is nothing to indicate that the landlords had any control of the area where the injuries were received," summary judgment was appropriate. 796 S.W.2d at 871.
Based on Ireland, the Elams could not be held liable as a matter of law because the subject accident was a direct result of the Fergusons' dogs being on Bybee Road, an area that was not within the Elamses' control. We note, however, that the road in question is immediately adjacent to the Elamses' rental property in what appears to be a rural area. In light of the plurality opinion in Benningfield and Justice Venters' dissenting views in that case,3 we believe that areasonable argument could be made that the accident occurred in close enough proximity to the property to create a question of liability. We decline to reach a definitive holding on that question, however, because it is apparent that no actionable "dangerous" or "mischievous propensities" - or knowledge of such by the Elams - were demonstrated in this case.
"At common law, 'the dog was regarded as a tame, harmless, and docile animal, and its owner not responsible for any vicious or mischievous act it might do, unless he had a previous knowledge of the mischievous or vicious propensities.'" May v. Holzknecht, 320 S.W.3d 123, 126 (Ky. App. 2010) (quoting Koestel v. Cunningham, 97 Ky. 421, 30 S.W. 970, 17 Ky.L.Rptr....
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