REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-001259-MR
JACKSON CIRCUIT COURT NO. 10-CI-00226
COUNSEL FOR APPELLANT: Marshall F. Kaufman, III Kerstin
Schuhmann KAUFMAN & STIGGER.
COUNSEL FOR APPELLEE: Daniel Allen Simons Amanda Kash SIMONS,
FORE & BOWMAN, P.S.C.
September 12, 2009, in Jackson County, Appellant Latasha
Maupin was squirrel hunting with her boyfriend, James
Carpenter, on heavily wooded property owned by
Carpenter's family. Maupin decided to go home early, so
she started walking back to Carpenter's truck parked
nearby. In doing so, she apparently walked across part of a
42-acre tract of property owned by Appellee Roland
Tankersley. The evidence indicates that Maupin was walking on
an old overgrown path or roadway, once used by Maupin's
family to access her aunt's property with
where the pathway adjoins Highway 1955, a pack of four or
five dogs attacked Maupin, knocking her down, biting her, and
causing substantial injury. While she was being mauled, a
motorcyclist traveling on the nearby highway saw her
predicament and came to her rescue. The motorcyclist
extracted Maupin from the attacking dogs and whisked her away
to safety. Maupin sustained severe wounds from the dog
attack, endured pain and suffering, and incurred substantial
sued Tankersley for her injuries, relying on KRS 258.235(4).
After conclusion of evidence, the trial court instructed the
jury as follows:
You will find for the Plaintiff, Latasha Maupin, under this
instruction if you are satisfied from the evidence that:
(A) The Defendant, Roland Tankersley, owned the dogs that
caused Plaintiffs injuries; AND
(B) The Defendant, Roland Tankersley, had reason to believe
that the Plaintiff would be in the vicinity of his dogs; OR
(C) The Defendant, Roland Tankersley, failed to exercise
ordinary care to control his dogs for the safety of others,
and that such failure was a substantial factor in causing
you will find for Roland Tankersley.
objected to the instructions and tendered her own, requiring
an imposition of liability upon Tankersley solely by showing
Tankersley's ownership of the dogs which attacked her.
jury determined that Tankersley was the owner of the dogs
that caused injury to Maupin. However, the jury also
determined that Tankersley had no reason to believe Maupin
would be near his dogs. Nor had he failed to exercise
ordinary care to control his dogs for the safety of others.
Accordingly, the jury found that he was not liable to Maupin.
Maupin filed a Motion for Judgment Notwithstanding the
Verdict and/or a Motion for New Trial based upon improper
jury instructions on liability, which the Jackson Circuit
September 16, 2016, the Court of Appeals affirmed the Jackson
Circuit Court. The Court of Appeals held that the jury
instructions properly stated the law of dog owner's
liability for injuries caused by his dog. We granted review
to answer one narrow question of law: whether the language of
KRS 258.235(4) imposes strict liability upon the owner of a
dog that attacks and injures a person.
a jury instruction misrepresents the applicable law is purely
a question of law, which we review de novo. Sargent v.
Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). Thus, we shall
review the substantive aspect of the jury instruction de
we conduct de novo review of statutory
interpretation. Workforce Dev. Cabinet v. Gaines,
276 S.W.3d 789, 792 (Ky. 2008). We interpret statutory terms
based upon their common and ordinary meaning, unless they are
technical terms. See id. (citing KRS 446.080(4)). We
liberally construe our reading of a statute with the goal of
achieving the legislative intent of the General Assembly
regarding the statute's purpose. See id. (citing
statute in question is the progeny of years of evolution in
the law of dog attacks. Without KRS 258.235(4) or its
predecessor statutes, common law negligence would govern dog
bite cases. Thus, the General Assembly's intent in
passing these statutes is clear: to mandate that dog owners
are strictly responsible for injuries caused by their dogs.
1893 to 1918, former Ky. Stat. § 68 (later renamed 68a)
prevailed over the common law "one free bite" rule.
Former Ky. Stat. § 68a read as follows:
Every person owning, having or keeping any dog
shall be liable to the party injured for all damages
done by such dog. But no recovery shall be had in case the
person injured is, at the time, upon the premises of the
owner of the dog after night, or engaged in some unlawful act
in the daytime.
Bush v. Wathen, 47 S.W. 599, 600 (Ky. 1898) (quoting
former Ky. Stat. § 68) (emphasis added).
former Ky. Stat. § 68a, dog owners were strictly liable
for the injuries caused by their dogs. However, strict
liability was not imposed if-the victim was on the
owner's premises at night or engaged in unlawful daytime
the repeal of former Ky. Stat. § 68a, the common law
rule prevailed once again between 1918 and 1954. Dykes v.
Alexander,411 S.W.2d 47, 48 (Ky. 1967)). Then the
General Assembly enacted former ...