ANTHONY SIGLER v. JASMINE CURTIS AND MARY BETSY CURTIS
NO. 2019-CA-1628-MR
Commonwealth of Kentucky Court of Appeals
OCTOBER 23, 2020
NOT TO BE PUBLISHED; RENDERED: 10:00 A.M.; APPEAL FROM BULLITT CIRCUIT COURT, ACTION NO. 12-CI-00485, HONORABLE RODNEY BURRESS, JUDGE
AFFIRMING
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BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
JONES, JUDGE: Appellant, Tony Sigler (“Tony“), appeals the order of the Bullitt Circuit Court, which overruled Tony’s motion for partial summary judgment and, after a bench trial, ultimately granted a verdict in favor of the Appellees, Mary Betsy Curtis (“Betsy“) and Jasmine Curtis (“Jasmine“), on Tony’s claim for compensatory damages arising out of a dog bite he sustained on Betsy’s property.
Having reviewed the record in conjunction with all applicable legal authority, we affirm the trial court’s judgment.
I. BACKGROUND AND PROCEDURAL HISTORY
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
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,
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 not
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 was
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
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 his
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
[Tony] testified that he entered [Betsy’s] property in his own interest because he wanted to ask [Betsy] about planning to clean the road and driveway of the runoff from her property. [Tony] testified that he did not have permission to be on [Betsy’s] property on the date the incident occurred and that he had not contacted the [Curtises] before entering the property. This court finds that the Plaintiff entered upon the property of [Betsy], without any right, lawful authority or invitation, either express or implied and was therefore, at the time of the incident alleged in this action, a trespasser.
Thus, [Tony] unlawfully entered the premises as provided in
KRS § 381.231(1) andKRS § 511.090 . The [Curtises’] testimony indicates that they were at work when [Tony] entered the property and that they were unaware of his presence on the property at the time of the dog attack. It is well established that people are “not required to anticipate the intrusion of others.” Kentucky Cent. R. Co. v. Gastineau’s Adm’r, 83 Ky. 119, 7 Ky. L. Rptr. 3, 3 (1885). Therefore, [the] Court finds that [Tony] was trespassing on [Betsy’s] property at the time of the dog attack and the [Curtises] are not strictly liable.
Order at 5-6.
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 Curtises’ dogs apart because one was darker than the other, he could not remember which dog was the darker of the two or whether the darker or the lighter dog had bitten him.
This appeal followed.
II. STANDARD OF REVIEW
Different standards of review apply depending on whether we are reviewing findings of fact or conclusions of law. KL & JL Investments, Inc. v. Lynch, 472 S.W.3d 540, 544 (Ky. App. 2015), as modified (Apr. 17, 2015). In actions tried upon the facts without a jury, we review the trial court’s findings of fact under a clearly erroneous standard, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” CR4 52.01; McVicker v. McVicker, 461 S.W.3d 404, 416 (Ky. App. 2015). We may set aside a lower court’s findings pursuant to CR 52.01 “only if those findings are clearly erroneous.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Findings of fact are clearly erroneous if they are not supported by substantial evidence. Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky. App. 2009) (citing Cole v. Gilvin, 59 S.W.3d 468, 472 (Ky. App. 2001)).
According to our Supreme Court:
“[S]ubstantial evidence” is “[e]vidence that a reasonable mind would accept as adequate to support a conclusion” and evidence that, when “taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men.” Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence.
Moore, 110 S.W.3d at 354 (citations omitted).
“However, while deferential to the lower court’s factual findings, appellate review of legal determinations and conclusions from a bench trial is de novo.” Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (citing Sawyers v. Better, 384 S.W.3d 107, 110 (Ky. 2012)).
III. ANALYSIS
On appeal, Tony alleges the following counts of error: (1) the trial court erred by using a comparative fault analysis rather than a contributory negligence analysis when addressing strict liability; (2) the trial court erred in finding that Tony could not satisfy his burden of proof in identifying the dog that bit him; (3) the trial court incorrectly determined that Tony was a trespasser; and
Tony contends that the trial court “did not use a comparative fault analysis when deciding this case and instead implemented the contributory negligence standard which is no longer the law to be applied in negligence/dog-bite cases in the Commonwealth.” Appellant’s Br. at 9. Tony further argues that “any negligence (if any) in coming onto the Curtises’ property unannounced would not be a total bar to his claim as found herein by the trial Court [sic].” Id.
Tony is correct that, under Kentucky law, dog bite cases require a comparative fault analysis. “A dog owner is strictly liable for injuries caused when his dog attacks a person.” Maupin, 540 S.W.3d at 360.
A comparative fault analysis of the damages in dog bite cases is mandated by
KRS 411.182(2) . Therefore, it is appropriate for the jury, during the calculation of damages phase, to lessen the liable owner’s monetary responsibility for the victim’s injuries if the facts demonstrate that the victim’s own negligent or intentional acts contributed to the dog attack’s occurrence.
Id. at 361. However, in order for the court to undertake that analysis, it must make a number of factual findings – namely, whether Tony sufficiently identified the dog owner to be held liable and whether he was trespassing on the property where he was bitten. Id. A defendant cannot be held strictly liable for the actions of a
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.
Thus, Kentucky law holds dog owners strictly liable for injuries caused by their dogs under
- Every person having a right of property in the dog; and
- Every person who:
- Keeps or harbors the dog;
- Has the dog in his or her care;
- Permits the dog to remain on or about premises owned and occupied by him or her; or
- Permits the dog to remain on or about premises leased and occupied by him or her[.]
As plaintiff, Tony carries the burden of proof. Id. at 567. Tony could not offer any proof beyond his own belief that the dog that bit him was Charlie, Jasmine’s German Shepherd. See Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990) (“‘Belief’ is not evidence . . . .“). Tony could only testify that he
Tony claims that the Curtises’ actions following the dog bite demonstrate that Charlie was the dog that attacked him. It is true that the Curtises rehomed Charlie following the dog attack for fear that Charlie would be put down. However, all this goes to show only that Jasmine feared for her pet’s life and wanted to protect him from harm; it does not provide affirmative evidence that Charlie was the dog that attacked Tony. For circumstantial evidence to support a claim, “it must do more than suggest a possibility, and a recovery is not authorized if liability is a matter of conjecture, surmise or speculation; if a [factfinder] is required to speculate, the party must lose upon whom the burden of proof ultimately rests.” Gross v. Barrett, 350 S.W.2d 457, 459 (Ky. 1961).
In fact, if we assume that both Jasmine’s and Betsy’s dogs escaped their tethers, the dog that bit Tony could have been any one of four German Shepherds. Both Betsy and Rhonda testified that there were other dogs that roamed the area. According to Betsy, these included two other German Shepherds. Tony has not presented any affirmative evidence that the dog that attacked him was in the Curtises’ care or even permitted to remain on the premises owned by Betsy.
We note that, even if the trial court had concluded that the Curtises were the owners of the dog that bit Tony, Tony would still have been prevented from recovering under
Our Court has previously provided:
Statutory law is consistent in its definition of a trespasser.
KRS 381.231 defines a “trespasser” as “any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied[.]” In the criminal context, . . .KRS 511.090 provides that “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not privileged or licensed to do so.”As the above definitions indicate, either in the civil or criminal context, a person who enters the property of another “by express invitation or implied acquiescence of
the owner or occupant solely on [his] own business, pleasure or convenience” is not a trespasser. Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 390 (Ky. 1954).
Howard v. Spradlin, 562 S.W.3d 281, 285 (Ky. App. 2018).
“Habitual or customary use of property for a particular purpose, without objection from the owner or occupant, may give rise to an implication of consent to such use to the extent that the users have the status of licensees, where such habitual use or custom has existed to the knowledge of the owner or occupant and has been accepted or acquiesced in by him.” Bradford v. Clifton, 379 S.W.2d 249, 250 (Ky. 1964). Property owners may voice their objection to others’ use of their property through the presence of “no trespassing” signs. In Howard v. Spradlin, our Court differentiated between trespassers and licensees in terms of implied consent. In that case, we held that a defendant was a licensee rather than a trespasser when he parked in the plaintiffs’ parking lot after hours. Howard, 562 S.W.3d at 285. The defendant had habitually and customarily parked on the store lot after hours without any objection, and the plaintiffs had not posted any “no trespassing” signage on the plaintiffs’ parking lot to provide notice that parking there after hours was prohibited. Id. Our Court further reasoned that the defendant was a licensee because the plaintiffs had never objected to “anyone parking on the premise at any time, people often parked on the store lot after hours without their
The same rule applies for householders. “[T]here exists an implied invitation for one to come up to the house of another for information, visitation, or the like.” Perry v. Williamson, 824 S.W.2d 869, 872 (Ky. 1992) (citing City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941)). That invitation depends, of course, upon custom, and, significantly, may be rescinded by “placard” or signage warning would-be visitors away. Donaldson Baking Co., 155 S.W.2d at 239.
The trial court found that Tony had entered Betsy’s property in violation of
Tony appears to argue that the trial court’s determination as to whether he was trespassing on Betsy’s property at the time of the bite should not bar his claim, but rather play a role in the court’s comparative fault analysis. However, Tony was not “attacked” according to the definition provided by
IV. CONCLUSION
In light of the foregoing, we AFFIRM the judgment of the Bullitt Circuit Court.
ALL CONCUR.
J. Gregory Joyner
Louisville, Kentucky
BRIEF FOR APPELLEE JASMINE CURTIS:
James D. Winchell
Shepherdsville, Kentucky
BRIEF FOR APPELLEE MARY BETSY CURTIS:
Kirk Hoskins
Louisville, Kentucky