Dykes v. Alexander
411 S.W.2d 47, 1967 Ky. LEXIS 457 (1967)
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Rule of Law:
Under KRS 258.275(1), strict liability for dog owners for injuries does not extend to trespassers on the owner's property if the owner was unaware of the trespasser's presence and the dog was not known to be vicious, thereby requiring application of common law premises liability rules.
Facts:
- On August 26, 1963, five-year-old Alexander and his three-year-old sister entered the fenced-in backyard of the Crosbys.
- Alexander was severely bitten by a dog that the Crosbys had owned for about two years.
- The Crosbys testified their dog was not vicious and had never previously attempted to bite anyone.
- Mary Alexander, one of the owners, heard noise, came out of the house, and saw the dog backing away from Alexander.
- Alexander stated that two unknown children opened the gate and let him into the backyard.
- Alexander and his sister lived approximately one and a half blocks down the street from the Crosbys.
- The Crosbys' backyard was enclosed by a four-foot-high fence with a gate that was kept closed.
Procedural Posture:
- A five-year-old boy (appellant Alexander) brought an action against the dog owners (appellees Crosby) for damages after being bitten by their dog.
- At the close of all the evidence, the trial judge directed a verdict in favor of the dog owners.
- The five-year-old boy, Alexander, appealed the directed verdict to the Kentucky Court of Appeals, arguing that the court erred in directing a verdict in light of KRS 258.275(1).
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Issue:
Does Kentucky Revised Statute 258.275(1) impose strict liability on dog owners for injuries inflicted by their dog upon a child who is trespassing on the owner's fenced property, when the owner was unaware of the child's presence and the dog was not known to be vicious?
Opinions:
Majority - Woodard C. Tipton, Special Commissioner
No, Kentucky Revised Statute 258.275(1) does not impose strict liability on dog owners for injuries inflicted by their dog upon a child who is trespassing on the owner's fenced property when the owner was unaware of the child's presence and the dog was not known to be vicious. The court reasoned that the legislature did not intend to impose strict liability under any and all circumstances, even under the present statute KRS 258.275(1) which replaced the common law 'one free bite' rule. The court emphasized that ordinarily, trespassing children occupy the same position as trespassing adults, absent an attractive nuisance. A dog, the court clarified, is not an attractive nuisance per se, nor is everything attractive to a child an attractive nuisance. A landowner's duty to a trespasser, even an infant, is limited to exercising ordinary care to avoid injury after their peril is discovered, and refraining from inflicting wanton or willful injury or setting a trap. Since there was no evidence the dog had previously bitten anyone, was vicious, or that the owners had knowledge of such, and the owners did not know Alexander was on their premises, the dog was considered to be where it had a right to be. The court referenced a California case (Fullerton v. Conan) with a similar statute, which likewise held a child trespasser not 'lawfully' on the property, thus absolving the owner of strict liability. The court concluded that the owners, in keeping a non-vicious dog in their fenced-in yard, were not liable to an unknown trespasser to whom they owed no higher duty.
Dissenting - Hill, J.
Justice Hill dissented from the majority's opinion without providing separate reasoning.
Analysis:
This case significantly limits the scope of strict liability under KRS 258.275(1) for dog owners in Kentucky, clarifying that the statute does not entirely abrogate common law principles of premises liability. It reinforces the traditional duties owed to trespassers, even child trespassers, and establishes that a dog is not an attractive nuisance per se. Future cases involving dog bites will likely continue to consider the injured party's status on the property (invitee, licensee, trespasser) and the owner's knowledge of the dog's vicious propensities, rather than applying blanket strict liability.
