In Tracey v. Solesky, decided April 26, 2012, the Court of Appeals of Maryland ruled that when an owner or a landlord is proven to have knowledge of the presence of a pit bull dog1, or should have had such knowlege, and the dog attacks someone on the landlord’s property, a prima facie case of liability against the owner or landlord is established. It is not necessary that the pit bull’s owner or the landlord have actual knowledge that the involved dog is dangerous. The Court found that the aggressive and vicious nature of the pit bull, and its capability to inflict serious and sometimes fatal injuries, cause this breed of dog to be “inherently dangerous.” Thus, where it is proven that a dog involved in an attack is a pit bull, the dog owner, or such other person who has a right to control the pit bull’s presence on the premises and who knows or has reason to know of that the dog is a pit bull, is strictly liable for the damages caused by the dog’s attack on or from the premises. The strictly liable party includes a landlord who has the right and/or opportunity to prohibit such a dog from being on the premises.
In reaching its decision, the Court of Appeals, which is the highest appellate court in the State, reviewed the history of pit bull related decisions in Maryland and in other states. The Court noted the first reported appellate case involving the “mauling of young children by pit bulls” occurred as early as 1916, and that no less than seven instances of serious maulings by pit bulls had reached Maryland’s appellate courts in the last thirteen years. The Court provided details of the reported cases, describing the viciousness of the attacks, the severity of the injuries suffered, and the innocent acts in which the victims had been engaged immediately prior to the attacks. Included in the descriptions were the facts of the Tracey case, where a pit bull named “Clifford” escaped his enclosure and attacked at least two different boys at different times on the same day, causing the second one, Domenic Solesky, to sustain life threatening injuries and to undergo several surgeries over a seventeen-day stay at Johns Hopkins Hospital. Although the trial court initially ruled for landlord Tracey, finding that there was insufficient evidence of her negligence to send the case to a jury, the Court
1 The Court’s opinion initially extended to cross bred pit bulls and pit bull mixes. However, by the granting of a Motion for Reconsideration on or about August 21, 2012, the Court deleted all references in its opinion to such cross bred and mixed dogs.
approved a reversal of the trial court’s finding and directed that the case be sent back to the trial court in light of the landlord’s strict liability.
In its analysis, the Court described the history of the common law of Maryland in such matters. It noted that in its decision in the 1882 Goode v. Martin case, the Court, citing English common law, had ruled that an owner of a dog would not be liable to one bitten by the animal unless it was proven that that the dog was fierce and the owner had knowledge that he was fierce. In the 1916 case of Bachman v. Clark, the Court stated that when a dog is of a vicious nature, and the owner has knowledge of that, responsibility attaches to the owner to keep the dog from “doing mischief as the keeper of an animal naturally ferocious would be subject to and proof of negligence on the part of the owner in unnecessary.” This standard had generally continued up to this day: that one keeps dangerous animals at one’s peril, and it is not a defense that one employed reasonableness or diligence to control the creature or prevent its escape. This is to be contrasted with dogs that are not of vicious nature, where the general theory of liability rests on negligence, and owners are given “one free bite.”
The Court noted that the common law “is subject to judicial modification in the light of modern circumstances or increased knowledge.” With this underlying precept, the Court considered a number of resources, including the Journal of the American Veterinary Medical Association, an article in the “Annals of Surgery” entitled “Mortality, Mauling and Maiming by Vicious Dogs,” the Center for Disease Control, and appellate cases from other jurisdictions [including a D.C. case that involved a violation of the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Act of 1966 (known as the Pit Bull Act)] and concluded that the common law needed to be changed to apply a strict liability standard with respect to attacks by pit bull and cross-bred pit bull mixes. No longer will a plaintiff have to prove that the landlord knew that his tenant’s dog was dangerous; it will be sufficient if it is proven that the landlord knew or should have known that his tenant had a pit bull, as that dog is now considered inherently dangerous.
Three of the seven Court of Appeals Judges dissented, arguing that the majority had gone too far in its decision. The dissenters questioned the empirical evidence (or in their view the lack thereof) that the majority relied upon to determine that pit bulls were inherently dangerous. The dissenters questioned the wisdom of having liability turn upon a particular breed and not the applicable facts, including the prior propensity of the dog to be
vicious, or the owner’s or landlord’s knowledge of this. The dissenters pointed out that there was nothing in the Tracey record to prove that the landlord knew that the dog would be likely to attack people, and were thus troubled by the Court finding the landlord strictly liable. Indeed, the dissent analyzed that the only thing a landlord could now do to avoid liability for the harm that a pit bull might cause would be to prevent possession of such a dog on the premises. The dissent argued that if the State desired strict liability for pit bulls than that should be a legislative decision rather than the Court “legislating from the bench.”
While the Court’s opinion turned upon the action, or inaction, of a landlord, the opinion also has ramifications for community associations. The issue for the Court was the landlord’s right to control the pit bull’s presence. Just as a landlord can, by its lease, prohibit tenants from keeping pit bull dogs on the premises, a community association can, by virtue of its Declaration, By Laws and/or rules and regulations, govern its members and reasonably dictate their pet choices. In addition to prohibiting pit bulls the association would need to diligently inspect its premises to ensure that the prohibition was being followed, and take immediate action if a violation is discovered. Neither landlords nor associations want to spend time in Court disputing whether or not they knew or should have known that a pit bull was being kept on the premises. The language in the Court’s opinion imposing a strict liability standard “in respect to the owning, harboring, or control of pit bulls” is rather expansive; it can be easily argued that any landlord or association that does not prohibit such animals is allowing them. If an association does not presently prohibit pit bulls, as is likely, then it is suggested that steps be immediately taken to revise or amend the association’s governing documents and/or its rules, guidelines and standards. It should be noted that legislation was proposed to address the issue of pit bull liability for landlords and associations but the legislative special session ended without a law being passed. Although legislative relief may again be proposed the issue of landlord and association liability remains a current concern.