Kimberly Deramos v. Anderson Communities, Inc.

RENDERED: JULY 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0563-MR
KIMBERLY DERAMOS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 22-CI-000008
ANDERSON COMMUNITIES, INC. APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Kimberly Deramos (“Deramos”) appeals the Jefferson
Circuit Court’s order granting dismissal of a lawsuit she filed against Anderson
Communities, Inc. (“Anderson Communities”). We affirm.
FACTS
In January of 2021, Deramos was living in a Louisville apartment
complex owned and managed by Anderson Communities. One evening, as she
was entering her building with her dog, both she and her dog were attacked by
another dog apparently belonging to a neighboring tenant. Sadly, Deramos’ dog,
Princess, did not survive the attack and Deramos sustained injuries.
According to the rules of the apartment complex, certain breeds of
dogs and species of animals were not allowed as pets. Deramos alleged that the
dog which attacked her and killed Princess was a pit bull, which is one of the
restricted breeds. Deramos filed a complaint against Anderson Communities,
alleging that it was negligent in “maintaining a safe environment for tenants” and
was “otherwise negligent.” She sought damages for past and future medical
expenses, pain and suffering, and compensation for the loss of Princess.
Anderson Communities answered and denied liability and sought
judgment on the pleadings pursuant to Kentucky Rule of Civil Procedure (“CR”)
12. After each side filed memorandums concerning the motion to dismiss, the
judge entered an order dismissing the matter, finding that Anderson Communities
could not be considered an “owner” under the statute defining that term Kentucky
Revised Statute (“KRS”) 258.095(5), and therefore Deramos could not recover
against Anderson Communities. We affirm that order.
STANDARD OF REVIEW
The standard of review of a trial court’s determination of a CR 12.02
motion for failure to state a claim upon which relief can be granted is de novo.
“It is well settled in this jurisdiction when considering a
motion to dismiss under [CR] 12.02, that the pleadings
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should be liberally construed in a light most favorable to
the plaintiff and all allegations taken in the complaint to
be true.” Mims v. Western-Southern Agency, Inc., 226
S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v.
Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). “Since
a motion to dismiss for failure to state a claim upon
which relief may be granted is a pure question of law, a
reviewing court owes no deference to a trial court’s
determination; instead, an appellate court reviews the
issue de novo.” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky.
2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky.
App. 2009)).
Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012) (footnote omitted).
ANALYSIS
Preliminarily, Deramos complains that the trial court granted
Anderson Communities’ dispositive motion before the discovery process had been
initiated. Deramos cites to Russell v. Johnson & Johnson, Inc. as being supportive
of its position that it was improper to grant dismissal for failure to state a claim
upon which relief could be granted pursuant to CR 12.02(f). 610 S.W.3d 233, 240
(Ky. 2020). However, Russell concerned a motion for judgment on the pleadings
pursuant to CR 12.03, not a motion for dismissal for failure to state a claim under
CR 12.02(f). Here, because the only pleadings filed in the trial court were the
complaint and the answer, the motion for judgment on the pleadings filed by
Anderson Communities, and the response to that motion by Deramos, summary
judgment is not appropriate.
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In fact, and despite its characterization, the trial court
rendered a summary judgment pursuant to CR 12.03 and
CR 56. Contrary to the view of some, our decision in
Steelvest, Inc. v. Scansteel Service Ctr., Ky., 807 S.W.2d
476 (1991), does not preclude summary judgment.
Provided litigants are given an opportunity to present
evidence which reveals the existence of disputed material
facts, and upon the trial court’s determination that there
are no such disputed facts, summary judgment is
appropriate.
Hoke v. Cullinan, 914 S.W.2d 335, 337 (Ky. 1995).
When there is a presentation of some evidence, then summary
judgment pursuant to CR 12.03 or CR 56 is appropriate; but here, where only the
pleadings are before the court, such is properly considered a CR 12.02(f) motion
for failure to state a claim.
Motions to dismiss for failure to state a claim do not require that the
party opposing the motion be granted an opportunity for discovery. CR 12.02(f)
allows a party to “expediently terminate litigation” without discovery upon a
showing that the “plaintiff would not be entitled to relief under any statement of
facts which could be proved in support of the claim.” Seiller Waterman, LLC v.
RLB Properties, Ltd., 610 S.W.3d 188, 195 (Ky. 2020) (citing Burkhart v.
Community Med. Ctr., 432 S.W.2d 433 (Ky. 1968)). Without discovery, a circuit
court must determine only “if the facts alleged in the complaint can be proved,
would the plaintiff be entitled to relief?” James v. Wilson, 95 S.W.3d 875, 884
(Ky. App. 2002).
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Turning to the trial court’s determination that Anderson Communities
could not be considered a “dog owner” under KRS 258.235(4) and KRS
258.095(5), we agree with the trial court. Strict liability for any injuries caused by
a dog is imputed to the “owner” of the dog via KRS 258.235(4): “Any owner
whose dog is found to have caused damage to a person, livestock, or other property
shall be responsible for that damage.” The term “owner” is defined in KRS
258.095(5):
(5) “Owner,” when applied to the proprietorship of a dog,
includes:
(a) Every person having a right of property in the
dog; and
(b) Every person who:
1. Keeps or harbors the dog;
2. Has the dog in his or her care;
3. Permits the dog to remain on or about
premises owned and occupied by him or
her; or
4. Permits the dog to remain on or about
premises leased and occupied by him or
her[.]
The basis for Anderson Communities’ motion to dismiss for failure to
state a claim was that it could not be considered an owner under the statute. Their
argument forwarded that a change in the definition of “owner” passed by the
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General Assembly in 2017 definitively excluded them from being considered an
owner. Deramos cites to Benningfield ex rel Benningfield v. Zinsmeister, 367
S.W.3d 561 (Ky. 2012), as supportive of her position that landlords can be held
liable for the actions of their tenant’s dogs. However, and Deramos fails to point
out, that case was decided before the General Assembly acted to change the
definition of “owner” as described above.1
Before the statutory change, the third definition of owner in KRS
258.095(5) read “permits [the dog] to remain on or about premises owned or
occupied by him [or her.]” (Emphasis added.) However, the General Assembly
changed that definition to read “permits the dog to remain on or about premises
owned and occupied by him or her.” Thus, under the statute, an owner under this
definition would have to be both the owner of the property and a resident thereof.
As the trial court pointed out in its order, the likely reason for this change could be
that a resident landlord would have occasion to be aware of a dog being upon the
property and would have acquiesced to its presence by not having the dog removed
from the premises.
1
“It has no ambiguity and plainly states that a person who permits a dog to remain on premises
he owns shall be deemed an owner for purposes of the dog-bite liability statute. This can include
a landlord.” 367 S.W.3d at 567.
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In responding to the motion to dismiss and arguing it constitutes
evidence of negligence by Anderson Communities, Deramos provided an affidavit
and attached to it a document listing “prohibited breeds” which she alleged had
been provided by Anderson Communities to her when she signed a “Pet
Addendum” to her lease agreement. She alleged that the dog which attacked she
herself and Princess was a “pit bull” and that breed is listed on the list as a breed
which Anderson Communities does not allow on the property and that Anderson
Communities was clearly negligent in failing to enforce its own policy. This, as
noted by the trial court, indicates that Anderson Communities did not allow
dangerous dogs on the property.
However, Deramos provided no allegation that Anderson
Communities knew that the pit bull (if the dog was, in fact, such breed) was
residing on the property, if it even was so residing rather than visiting. Even had
Deramos alleged that Anderson Communities was aware of the pit bull’s residence
in the building, the definition of “owner” makes it clear that Anderson
Communities would not be subjected to strict liability for the bite of a dog residing
on the property against their rules.
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CONCLUSION
We agree with the trial court that judgment on the pleadings was
proper as under no theory could Anderson Communities be found to be an owner
and thus liable for the actions of the dog of a tenant.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Grover S. Cox J. Michael Wells
Louisville, Kentucky Louisville, Kentucky
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