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Maupin v. Tankersley

Supreme Court of Kentucky

February 15, 2018

LATASHA MAUPIN APPELLANT
v.
ROLAND TANKERSLEY APPELLEE

         ON 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.

          OPINION

          CUNNINGHAM JUSTICE.

         On 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 Tankersley's consent.

         Near 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 medical bills.

         Maupin 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 Plaintiffs injuries.

         Otherwise, you will find for Roland Tankersley.

         Maupin 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.

         The 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 Court denied.

         On 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.

         I. Analysis

         Whether 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 novo. Id.

         Additionally, 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 KRS 446.080(1)).

         The 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.

         From 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).

         Under 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 activity.

         After 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 ...


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