A dog bite victim in Kentucky can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort.
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
Kentucky is a strict liability state. The law of this state is favorable for anyone who was injured in any way by a dog. The dog owner is strictly liable for all damage to a person, livestock and other property, including the victim’s pet. Furthermore, any person may kill or seize any dog that is observed attacking a person, and a dog that is declared to be dangerous has to be kept securely away from people.
The Kentucky dog bite statute covers injuries inflicted to a person or animal, and the law makes liable the owner or the keeper of the attacking dog. Section 258.235 of Kentucky Revised Statutes provides in part as follows:
258.235 Authority to kill or seize dog — Return by court to owner of vicious dog -Liability for damage — Proceeding by person attacked by dog — Disposition of dog after seizure — Powers of animal control officer — Vicious dog not to run at large.
(1) Any person, without liability, may kill or seize any dog which is observed attacking any person.
(2) Any livestock owner or his agent, without liability, may kill any dog trespassing on that owner’s property and observed in the act of pursuing or wounding his livestock.
(3) Any dog determined to be vicious by a court and allowed to be returned to an owner shall be confined in a locked enclosure at least seven (7) feet high or a locked kennel run with a secured top. The dog may leave the enclosure only to visit the veterinarian or to be turned in to an animal shelter. The dog shall be muzzled if leaving the enclosure for either of these purposes.
(4) Any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.
(5) (a) Any person who has been attacked by a dog, or anyone acting on behalf of that person, may make a complaint before the district court, charging the owner or keeper of the dog with harboring a vicious dog. A copy of the complaint shall be served upon the person so charged in the same manner and subject to the laws regulating the service of summons in civil actions directing him to appear for a hearing of the complaint at a time fixed in the complaint. If the person fails to appear at the time fixed, or if upon a hearing of the parties and their witnesses, the court finds the person so charged is the owner or keeper of the dog in question, and that the dog has viciously and without cause, attacked a human being when off the premises of the owner or keeper, the person shall be subject to the penalties set forth in KRS 258.990(3)(b), and the court shall further order the owner or keeper to keep the dog securely confined as provided by subsection (3) of this section, or the court may order the dog to be destroyed.
(b) The animal control officer shall act as an officer of the court for the enforcement of any orders of the court in his jurisdiction pertaining to this subsection.
(6) For his services in the proceedings, a peace officer shall be entitled to the same fees to which he is entitled for performing similar services in civil cases. In all proceedings under this section, the court shall place the costs upon either party as it may determine.
(7) It shall be unlawful for the owner or keeper of any vicious dog, after receiving an order under subsection (5) of this section, to permit the dog to run at large, or to appear in public except as provided in subsection (3) of this section. Any vicious dog found running at large may be killed by any animal control officer or peace officer without liability for damages for the killing. (Effective July 13, 2004.)
As in all other statutory strict liability jurisdictions, “strict liability” means “almost strict liability.” Kentucky applies principles of comparative negligence. KRS 411.182; Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984). Such negligence is a defense under the dog bite statute. Johnson v. Brown, 450 S.W.2d 495 (Ky.App. 1970) (“In the event of another trial the jury should be instructed to find for the plaintiff unless he failed to exercise ordinary care for his own safety, but for which failure, if any, he would not have been injured.”). However, a child under seven years of age cannot be guilty of contributory negligence and, therefore, comparative negligence. Lehman v. Patterson (1944), 298 Ky. 360, 182 S.W.2d 897.
Kentucky also has eliminated joint and several liability, replacing it with rules of apportionment based upon comparative fault. Dix & Associates Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky. 1990). (“Whereas it is fundamentally unfair for a plaintiff who is only 5 percent at fault to be absolutely barred from recovery from a defendant who is 95 percent at fault, it is equally and fundamentally unfair to require one joint tort-feasor who is only 5 percent at fault to bear the entire loss when another tort-feasor has caused 95 percent of the loss.”) See also Kentucky Farm Bureau Mutual Insurance Co. v. Ryan, 177 S.W.3d 797 (Ky. 2005): “The thrust of the comparative negligence doctrine is to accomplish (1) the apportionment of fault between or among negligent parties whose negligence proximately causes any part of a loss or injury, and (2) the apportionment of the total damages resulting from such loss or injury in proportion to the fault of each party.”
Furthermore, despite the unequivocal language of the statute, a trespasser cannot recover under it. Dykes v. Alexander, 411 S.W.2d 47 (Ky.App. 1967). In the Dykes case, the trespasser was a child. The court noted that trespassing children occupy the same position as trespassing adults, except for special responsibility in case of attractive nuisances. The court recognized that this is a harsh rule as applied to infants, but stated that the rule still applies, citing Louisville & Nashville Railroad Co. v. Spence’s Adm’r. (1955), Ky., 282 S.W.2d 826; Chesser .v. Louisville Country Club (1960), Ky., 339 S.W.2d 194.