Pleading Controls: The Dog‑Bite Strict‑Liability Statute Does Not Bar a Common‑Law Negligence Claim That Was Not Pled

Introduction

In Kimberly Deramos v. Anderson Communities, Inc., the Supreme Court of Kentucky reversed a CR 12.02(f) dismissal that had erroneously imported Kentucky’s statutory dog-bite strict-liability regime into a lawsuit pled purely as common-law negligence. The case arises from a fatal dog attack on a tenant’s small dog in an apartment complex’s common area. The plaintiff sued the landlord for negligence in maintaining a safe environment; she did not invoke Kentucky’s strict-liability dog-bite statutes (KRS 258.235 and KRS 258.095).

Both the Jefferson Circuit Court and the Court of Appeals dismissed by analyzing whether the corporate landlord qualified as a statutory “owner,” concluding it did not—and therefore could not be strictly liable. The Supreme Court held that this was the wrong question at the pleading stage: because the plaintiff did not bring a statutory strict-liability claim, the lower courts erred by dismissing the negligence claim based on inapplicable statutory elements. Kentucky’s notice-pleading standards and the de novo Rule 12 analysis require courts to accept the complaint’s allegations as true and to ask only whether any set of provable facts could entitle the plaintiff to relief on the claim she actually pled.

Summary of the Opinion

The Court reversed the CR 12.02(f) dismissal and remanded for further proceedings on the plaintiff’s negligence claim.
The strict-liability dog-bite statutes (KRS 258.235 and KRS 258.095) were inapplicable because the plaintiff did not invoke them; a court may not decide an unpled theory or issue advisory opinions about it.
Kentucky’s notice-pleading regime requires only a short and plain statement giving fair notice of a claim; the plaintiff’s allegation that the landlord negligently failed to maintain a safe environment sufficed.
The Court emphasized the doctrinal distinction: strict liability is not negligence; the unavailability of one does not immunize a defendant from the other.
While declining to resolve statutory “owner” questions, the Court acknowledged that the 2017 amendment from “owned or occupied” to “owned and occupied” in KRS 258.095(5)(b)3 narrowed landlord exposure to statutory strict liability and reflects legislative awareness of earlier judicial interpretations like Benningfield.

Case Background

In January 2021, tenant Kimberly Deramos and her Shih Tzu, Princess, were attacked in a common area of an apartment complex owned and managed by Anderson Communities. Princess died; Deramos suffered hand and facial injuries and later PTSD, requiring surgery and counseling. The complex had a written policy restricting certain dog breeds, including pit bulls. Alleging the attacking dog was a prohibited pit bull owned by another tenant, Deramos sued the landlord for negligence in maintaining a safe environment and “otherwise negligent” conduct, seeking medical expenses, pain and suffering, and compensation for the loss of Princess.

Anderson Communities moved to dismiss under CR 12.02(f), arguing it could not be strictly liable under KRS 258.235(4) because it was not an “owner” under KRS 258.095(5). The circuit court agreed, holding a corporation cannot “occupy” premises as required by the amended statute, and the Court of Appeals affirmed. The Supreme Court granted discretionary review to decide whether dismissal at the pleading stage was proper.

Issues Presented

Whether a negligence claim alleging a landlord failed to provide a safe environment for tenants can be dismissed at the pleading stage by applying statutory strict-liability dog-bite principles when the plaintiff did not plead a strict-liability theory.
Whether, under Kentucky’s notice-pleading standard, the complaint’s allegations suffice to state a claim for negligence that could entitle the plaintiff to relief under any set of provable facts.

Holdings

Dismissal under CR 12.02(f) was improper. The complaint states a cognizable negligence claim; strict-liability dog-bite statutes are inapplicable to that claim because they were not pled.
The Court declined to decide whether the landlord is a statutory “owner” or to issue advisory opinions on strict liability. The opinion highlights that negligence and strict liability are distinct theories and that the statutory scheme does not eliminate common-law negligence claims.

Precedents and Authorities Cited

Standards for CR 12.02(f) Dismissal and Notice Pleading

FOX v. GRAYSON, 317 S.W.3d 1, 7 (Ky. 2010): Motions to dismiss are reviewed de novo; the court accepts the complaint’s material facts as true and should not dismiss unless the plaintiff can prove no set of facts entitling relief.
UPCHURCH v. CLINTON COUNTY, 330 S.W.2d 428 (Ky. 1959): The Rule 12 motion admits as true the complaint’s material allegations.
Pete v. Anderson, 413 S.W.3d 291 (Ky. 2013) and HOKE v. CULLINAN, 914 S.W.2d 335 (Ky. 1995): Kentucky is a notice-pleading jurisdiction; the complaint’s “central purpose” is to give fair notice of claims and defenses.
Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005): Technical precision is unnecessary so long as the complaint gives fair notice and identifies the claim.
Whitley v. Robertson County, 406 S.W.3d 11 (Ky. 2013): The plaintiff is the master of the complaint and may choose among alternative causes of action.
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913): A plaintiff decides the legal theory on which to proceed.
MORGAN v. BIRD, 289 S.W.3d 222 (Ky. App. 2009): Pleadings are liberally construed in favor of the plaintiff.

Advisory Opinion Principle

Ex parte Smith, 664 S.W.3d 505 (Ky. 2022): The Court does not render advisory opinions; it avoids deciding issues not necessary to the disposition, such as an unpled strict-liability theory.

Dog-Bite Statutory Scheme and Its Interaction With Common Law

KRS 258.235(4): Imposes strict liability on an “owner” whose dog causes damage to persons or property.
KRS 258.095(5)(b)3: Current definition of “owner” includes a person who permits a dog to remain “on or about premises owned and occupied by him or her” (emphasis added), reflecting a 2017 narrowing from “owned or occupied.”
Benningfield ex rel. Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012): Before the 2017 amendment, the Court interpreted the statutory scheme to allow landlord strict liability; subsequent legislative change suggests intent to narrow that exposure.
Indep. Bank v. Welch, 636 S.W.3d 528 (Ky. 2021): Legislature is presumed aware of judicial constructions when it enacts or amends statutes.
KRS 446.080(1): Statutes are to be liberally construed to promote their objects and legislative intent.
Maupin v. Tankersley, 540 S.W.3d 357 (Ky. 2018): Absent the strict-liability statutes, common-law negligence governs dog-bite cases.
Horbach v. Forsythe, 667 S.W.3d 1 (Ky. App. 2023): A dog walker who qualified as a statutory “owner” could not recover under strict liability, but the Court of Appeals underscored that strict liability is distinct from negligence and must be analyzed separately—supporting the Supreme Court’s distinction here.

Legal Reasoning

1) The claim pled controls the analysis

The cornerstone of the ruling is procedural: courts must test the complaint that was actually filed, not a different theory one party would prefer to litigate. Deramos pled negligence, not statutory dog-bite strict liability. On a CR 12.02(f) motion, the question is whether, taking those negligence allegations as true and liberally construing the pleading, she could prove any set of facts establishing a negligence claim against the landlord. By pivoting to—and then rejecting—an unpled strict-liability theory, the lower courts committed reversible error.

2) Distinct theories: strict liability is not negligence

The opinion underscores that strict liability and negligence are separate causes of action with different elements and policies. Strict liability dispenses with fault and imposes responsibility based solely on status and causation; negligence requires proof of duty, breach, causation, and damages. The fact that a defendant may not be strictly liable (or that strict liability is unpled) does not resolve whether the defendant was negligent. The Court cites Horbach to reinforce this analytical separation.

3) Notice pleading sets a low bar at the dismissal stage

Accepting as true the complaint’s allegations and the asserted existence of a breed-restriction policy, the plaintiff stated a plausible negligence claim: that Anderson Communities owed and breached a duty to maintain a safe environment in common areas and that this breach caused her injuries. Kentucky’s “short and plain statement” standard requires no technical detail, only fair notice. The pleading easily clears that threshold; whether the landlord was actually negligent is for later stages, after discovery.

4) No advisory ruling on the statutory “owner” question

The Court noted the 2017 amendment changing the statutory definition of “owner” from “owned or occupied” to “owned and occupied,” highlighting that the General Assembly likely narrowed landlord exposure to strict liability in response to Benningfield. But because the plaintiff did not plead strict liability, the Court declined to opine on whether Anderson Communities can be deemed an “owner,” or how “occupied” applies to corporate landlords. That remains for another case where the issue is properly raised.

Impact and Significance

Immediate effects

Negligence claims survive Rule 12 dismissals even when a strict-liability route might be unavailable. Defendants cannot short-circuit negligence by invoking inapplicable elements from the dog-bite statute.
Trial courts are reminded to honor Kentucky’s notice-pleading framework and to avoid deciding unpled theories or issuing advisory opinions.

Longer-term doctrinal impact

Dog-bite litigation: Plaintiffs can proceed on common-law negligence theories against non-occupying landlords, even though statutory strict liability appears substantially narrowed by the 2017 amendment.
Premises liability for third-party acts: The case affirms that ordinary negligence principles continue to supply duties and standards of care for landlords in common areas, independent of the strict-liability regime.
Statutory interpretation: The Court signals that the 2017 “and occupied” amendment carries weight and reflects legislative awareness of Benningfield’s reach. Future cases will likely refine who “occupies” premises and under what circumstances.

Practical litigation guidance

Pleading strategy: Plaintiffs should plead negligence expressly (and, when warranted, plead statutory strict liability in the alternative). Defendants should tailor Rule 12 motions to the claims actually pled.
Discovery focus on remand: enforcement of pet policies; knowledge (actual or constructive) of prohibited breeds or dangerous propensities; control and supervision of common areas; prior incidents or complaints; compliance mechanisms (registration, vet records, verification of breed); and causal links.
Allocation of fault: Although not resolved here, apportionment among the dog’s owner and the landlord may be in play at later stages under Kentucky comparative fault principles.

Complex Concepts Simplified

Strict liability versus negligence

Strict liability: Liability attaches without proving fault; the question is whether a defendant fits a statutory status (e.g., “owner”) and whether the dog caused harm. It is a legislative choice to shift losses regardless of care.
Negligence: Requires proof of fault—duty, breach, causation, and damages. For landlords, this often turns on control of common areas, foreseeability of the hazard, and reasonable measures taken or not taken.

Notice pleading

Under CR 8.01, a complaint need only provide a short and plain statement giving fair notice of the claim. Specific legal theories, labels, or detailed facts are not necessary at the outset.

CR 12.02(f) dismissal standard

Courts accept the complaint’s factual allegations as true and draw reasonable inferences in the plaintiff’s favor. Dismissal is appropriate only if the plaintiff could not possibly obtain relief under any set of provable facts consistent with the allegations.

Advisory opinions

Appellate courts resolve only the issues necessary to decide the case, avoiding hypothetical or unpled matters. Here, that means leaving the statutory “owner” question for a case that actually presents it.

“Owned and occupied” in KRS 258.095(5)(b)3

The 2017 amendment requires both ownership and occupancy for landlord strict liability as an “owner.” Though not decided here, this signals narrowed statutory exposure for non-occupying landlords; negligence remains a distinct pathway for liability.

How the Precedents Shaped the Decision

FOX v. GRAYSON and Upchurch cement the de novo, plaintiff-favorable posture at the pleading stage, compelling reversal when a viable negligence claim is plausibly alleged.
Pete, Carneyhan, and Whitley underscore that the plaintiff chooses the claim and only needs to give notice—not to plead every legal detail or alternative theory.
Ex parte Smith confines the Court to the negligence issue and forecloses advisory analysis of statutory strict liability.
Benningfield, Maupin, and Horbach frame the landscape: the statutory scheme partially abrogates common law by creating strict liability for “owners,” but it does not erase negligence claims; courts must analyze the two separately.
Welch and KRS 446.080(1) inform the Court’s observation that the 2017 amendment likely responds to Benningfield and narrows landlord strict liability—a legislative development the Court recognizes but does not adjudicate in this case.

What Remains Open on Remand

Negligence elements: Whether Anderson Communities owed and breached a duty regarding safety in common areas, whether any breach proximately caused the injuries, and what damages resulted.
Policy and practice: Whether the breed-restriction policy and registration requirements were reasonably enforced and whether the landlord knew or should have known of the prohibited dog.
Comparative fault and apportionment: The extent to which responsibility may be allocated among the landlord and the dog’s tenant-owner based on the evidence that emerges.
Scope of duty and control: The contours of the landlord’s duty regarding third-party animals in common areas (e.g., leash rules, monitoring, response to complaints, prior incidents).

Practice Pointers

For plaintiffs

Plead negligence expressly; consider pleading strict liability in the alternative if facts may support “ownership” under the statute.
Seek discovery on policies, enforcement records, tenant disclosures, incident reports, and prior complaints to establish knowledge and breach.
Identify and, where appropriate, join the dog’s owner to ensure full apportionment and discovery.

For landlords and property managers

Do not assume the strict-liability statute insulates you from negligence claims. Your policies and enforcement practices may shape duty and breach analyses.
Implement and document enforcement of pet restrictions (registration, verification of breed, leash compliance), especially in common areas you control.
Respond promptly to complaints or incidents; maintain records showing reasonable care and corrective measures.

Conclusion

Deramos v. Anderson Communities, Inc. re-centers Kentucky civil procedure on first principles: the claim pled governs the analysis, and Rule 12 dismissals must be confined to that claim, liberally construing the complaint in the plaintiff’s favor. The decision clarifies that Kentucky’s dog-bite strict-liability statute does not supplant or silently adjudicate common-law negligence claims where the plaintiff has not invoked the statute. It also signals—without deciding—that the General Assembly’s 2017 narrowing of “owner” in KRS 258.095 likely limits landlord exposure under strict liability while leaving negligence intact as a separate avenue for relief.

The key takeaway is twofold. Procedurally, trial and appellate courts must resist the temptation to refashion pleadings at the dismissal stage. Substantively, strict liability is not negligence; the unavailability of one does not defeat the other. On remand, ordinary negligence principles will govern whether the landlord’s conduct regarding common-area safety and policy enforcement fell below reasonable care and caused the plaintiff’s injuries. In Kentucky’s broader tort landscape, the opinion will guide courts and litigants toward cleaner pleadings, disciplined motion practice, and a sharper distinction between statutory and common-law theories in dog-related injury cases.

Panel: Lambert, C.J.; Bisig, Conley, Keller, Nickell, Thompson, JJ., all concur. Goodwine, J., not sitting.

Pleading Controls: Kentucky Supreme Court Holds the Dog‑Bite Strict‑Liability Statute Cannot Defeat an Unpled Negligence Claim at the CR 12.02(f) Stage