LIABILITY FOR BITE ARGUED

BY Jim Hannah, The Kentucky Enquirer, February 18, 2012

                                            
So excited from watch “The Wizard of Oz” for the first time. Andrew Fuller grabbed a lion costume threw it on and ran out the front door on July 4 weekend 2009. Instead of finding courage so longed for by the lion in the movie, the active 7-year-old came face-to-face with a frightened dog, a 10-month-old boxer named Jo-Jo, who attacked him.

With scars on his scalp and a mangled ear, Andrew’s family now hopes to set a precedent in Kentucky courts so other dog-bite victims will not be left with bills. The family attorney, Michael A. O’Hara argued before the Kentucky Court of appeals on Thursday that the dog owner’s landlord should be held responsible for the attack.

“While legislators repeatedly draft unambiguous laws to include landlords, judges have repeatedly interpreted the plain language in esoteric ways to absolve landlords from liability,” O’Hara told a three judge panel of the appeals court.
He said it was an important issue because children are disproportionately more likely to be attached by dogs. If the dog’s owner is a renter with no renters insurance, there is often no one to pay the medical bills. Andrew’s family had health insurance but it will not cover plastic surgery.

An estimated 4.7 million god bites occur in the U.S. each year, according to the American Humane Association. Of those, 50 percent involved children under 12, and 65 percent of bites among children occur to the head and neck.
The landlord’s attorney, Barry Rudell II, argued that Andrew, now 10, made for sympathetic case but that the judges had to follow the law.

“This case reminds me of something … said in law school,” Rudell said. “Emotional cases still turn on evidence.’ That is what we have in this case. We have a young man, severely injured. Clearly damaged to no fault of his own.”
But Rudell said the court couldn’t find the landlord responsible, in part, because the attack didn’t even happen on the landlord’s property. Court records state the attachk happened on a sidewalk as Andrew walked down his street. The family lived in the 300 block of 13th Street in Newport. Andrew’s father, Bryan Fuller, first sued the landlord and dog owner in Campbell Circuit Court.

Judge Julie Reinhart Ward found the landlord, JoAnn Blair, who was represented by her insurer’s lawyers, not liable.
Ward instead issued a judgment of $80,000 against the dog owner, Catherine Black. Black didn’t have renter’s insurance, didn’t hire a lawyer and didn’t show up in court to defend herself. She now claims Blair told her she would take care of the litigation. Black, who couldn’t be reached for comment, is left to pay $78 per pay period toward the judgment. O’Hara said insurance companies are profiting by selling landlords insurance that covers dog bites and then successfully arguing in court that the landlords are not responsible for dog-bite claims. “Right now they have the best of both worlds,” O’Hara said.

The Fullers appealed Ward’s ruling that the landlord was not responsible. The appeals court is expected to issue its opinion in 30 to 45 days. Court of Appeals Judge Jeff Taylor said it appeared Ward struggled with trying to make the leap that a landlord could held responsible for a dog bite. O’Hara said the landlord knew a dog was being kept at the rental property. In the lease agreement between Black and Blair, Blair permitted the dog to reside at the home, and charged a different rental rate because of the boxer’s presence.

“Kentucky law does not limit the definition of a ‘dog owner’ only to those with a right property in the dog,” O’Hara said. “By virtue of Blair permitting this boxer to remain on the premise she owned, Blair is an ‘owner’ as defined by statute.”
O’Hara said ignoring the statute would invite everyone in Kentucky who wanted to avoid liability on dog attacks to not license the dog or license the dog in the name of the most judgment-proof member of the household, like a 6 year old child.

When a dog bites someone, the owner would simply disclaim it, thus allowing all the secondary party owners to escape all liability and leaving the victim with the entire burden of the injury, O’Hara said.


BY Jim Hannah, The Kentucky Enquirer, February 18, 2012