After several failed attempts in prior legislative sessions to take action against the Court of Appeals holding in the 2012 “pit bull” case of Tracey v. Solesky (for a closer look at the Solesky case, click here), the legislature finally succeeded in passing a new dog bite liability law (the governor is expected to sign it) for incidents where a dog causes personal injury or death to a person. The new law has five key features:
(1) it applies with respect to all dogs, negating the Solesky Court’s determination that pit bulls were inherently more dangerous than other dogs;
(2) In any action against the dog owner, once a plaintiff presents evidence that the dog caused the injury, it creates a rebuttable presumption that the owner knew or should have known that the dog had dangerous propensities. This presumption may not be rebutted as a matter of law, meaning that the issue must go to a jury. Under common law, it was the plaintiff’s burden to prove that the owner had actual or constructive knowledge of the dog’s viciousness. That burden of proof has now been shifted to owners. If you are a pit bull owner, however, you may take comfort in the fact that you will now at least have an opportunity to prove that you did not have knowledge of your dog’s propensities, because under Solesky, the pit bull’s inherent dangerousness was established as a matter of law;
(3) As to any person other than the dog’s owner, the common law duty as it existed prior to Solesky is the standard with respect to all dogs. This means that with respect to non-pit bull dogs, the standard of liability for non-owners (most notably, but not limited to a landlord) is unchanged. However, the liability standard for these non-owners with respect to pit bulls, which under Solesky created a strict liability standard, is now significantly lower. Again, under the new law, a pit bull is not considered different than any other dog;
(4) The dog owner is liable for injuries caused by his dog when the dog is running at large, unless the injured person was committing or attempting to commit a trespass or other criminal act on the owner’s property, was committing or trying to commit a crime against a person, or the person was taunting, abusing, or provoking the dog. Practically speaking, whether this creates a new obligation on the owner generally probably depends on where the owner lives. Several counties had existing leash laws that created at least presumptions of negligence under similar circumstances. In this respect, there should now be uniformity regarding liability for injuries caused by dogs off leash; and
(5) The law’s express purpose is to abrogate the Solesky decision, but it will not apply retroactively. This means that with respect to pit bulls, there are three potential standards that could be imposed over the next few years. If the injury occurred prior to Solesky, the common law liability requiring actual or constructive knowledge of the pit bull’s viciousness is required to prove liability, and the burden of proof is on the plaintiff. For injuries caused after the Solesky decision and prior to the enactment of this new law, owners, landlords, and anyone harboring a pit bull is strictly liable for injuries caused by the dog. Finally, for injuries occurring in the future, persons will be subject to the requirements of the new law.
Whether this law is good or bad is a matter of perspective. For persons who were at a great risk after Solesky of being found liable for a pit bull attack caused by a dog they did not own – landlords, veterinarians, dog walkers, pet store owners (but let’s face it, it’s landlords) – this law is a substantial victory. If you are a pit bull owner, you have achieved a victory, but not to the extent you may have hoped. The prospect of renting an apartment that will allow you to keep your pit bull has probably increased, but you are still at a greater risk of liability than you were before the Solesky opinion was issued. Further, as a practical matter, even though the law now will not consider pit bulls to be inherently more dangerous than other dogs, the public (read – jury) still by and large will. As long as the burden remains upon the pit bull owner to prove that the dog is not dangerous, the owner is going to have a tough sell to rebut the presumption to the jury. If you are trying to limit your liability exposure, do not get a pit bull. The group who has lost the most by the enacting of this law are dog owners generally. For better or worse, Fifi the poodle and Spot the labrador are now presumed dangerous unless proven otherwise, and are considered no less vicious than Rampage the pit bull.