It’s A Dog’s Life

by Pessin Katz Law, P.A.
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Governor O’Malley has signed into law Senate Bill (SB) 247 which many pit bull owners, and the Humane Society, have hailed for doing away with the Maryland Court of Appeals’ decision in Tracey v. Solesky, 427 Md. 627 (2012).  Tracey imposed strict liability upon the breed’s owners for damages resulting from pit bull attacks.  SB 247 is Emergency Legislation that became effective immediately upon the Governor’s signature.  It only applies to future cases.

The new law is a compromise. The law does away with specific reference to attacks by pit bulls, and includes language that applies to all dog owners. 

The law makes the following points regarding injuries to others as to all dog owners:

  • There must be evidence that the dog in question caused the personal injury or death on which a lawsuit is based.
  • Once that evidence is produced, a “rebuttable presumption” is created that the owner “knew or should have known that the dog had vicious or dangerous propensities”.
  • If the case is before a jury, rather than a judge, the judge cannot rule that the presumption has been rebutted BEFORE the jury returns a verdict.
  • With several exceptions, including the victim’s teasing or taunting the dog, the owner is liable for death or injury caused by the dog “while it is running at large”.

As to non-owners, such as landlords, the case law that existed on April 1, 2012 applies to determine their liability and the law is clear that it is not to affect any other cause of action that may be available to an injured party or any defense or immunity that might be available to the defendant(s) in a lawsuit.

Before the Court of Appeals made its 2012 ruling, Maryland followed the “one bite” rule relating to a dog owner’s liability for injury to another.  Generally speaking, an owner would not be held liable for a dog’s actions until it displayed vicious propensities known to the owner, usually by having bitten someone once before with the owner’s knowledge.  However, knowledge of a dangerous dog on the part of an owner could be shown circumstantially as set forth in Bachman v. Clark, 128 Md. 245 (1916) which highlighted the owner’s keeping the dog in an enclosure, the dog’s jumping on people entering the enclosure, the dog’s excitable nature, and the dog’s growling at others.

The new law changes the landscape.  First, once it is proven that the dog caused injury, its owner must then rebut a “presumption” that the owner knew of the dog’s “vicious or dangerous propensities”.  No longer must the plaintiff show knowledge on the part of the owner either directly or circumstantially.  That knowledge is presumed until rebutted by the owner.  Second, it is unlikely that a plaintiff will ask that a judge rule on the case rather than a jury because once the case starts, the jury must return a verdict before a judge can rule on whether the presumption mentioned above was rebutted by the owner.  This will mean that an owner will have to go to the expense of a full jury trial and verdict before the owner can learn whether it has successfully rebutted the presumption.  As a result, the cost of providing a defense to a dog owner by an insurer will most likely be reflected in heightened insurance premiums, if not to the uninsured or under insured owner.  Third, an owner will be liable for injury or death to another “while the dog is running at large”.  The law does not define the phrase “running at large” but one may surmise from the language that the dog is to be in an enclosure (and even then it might have to be leashed if in a public place such as an enclosed “dog park”) or on a leash.  (Baltimore County, for instance, mandates by ordinance that when off the owner’s property, all dogs and cats must be walked on a leash.  The effect of the statute on this ordinance, and others similar to it, is unclear.)

As to landlords, they are required to “exercise ordinary care and diligence to maintain [the areas under their control] in a reasonably safe condition”.  Violations of statutes or ordinances pertaining to those areas may be the basis for suing a landlord.  What can be said as to landlord liability is that because of the new law, landlords will not be held strictly liable for having pit bulls on the leased premises.  Whether landlords feel comfortable enough with the new law to permit dog owners to maintain their pets or watchdogs on the leased premises is yet to be resolved.  Also yet to be resolved, is the impact of the legislation on insurance rates.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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