Tuesday, August 21, 2012
Motion for Reconsideration
Annapolis, MD - In a rare decision by the high court to grant a motion for reconsideration, the Maryland Court of Appeals narrowed its April, 26 2012 ruling in Tracey v. Solesky by limiting its ruling only to pit bulls and removing the terms: cross-breds, pit bull mix, or cross-bred pit bull mix. The Court narrowed its original Opinion because the case before them, Tracey v. Solesky, had no references to cross-bred pit bulls. The dog in question in Tracey was a "pit bull terrier."
The Court's holding that "pit bulls are inherently dangerous" still stands, as does strict liability for their owners and landlords when a tenant's pit bull attacks.
The Court wrote (highlight by DogsBite.org):
On May 25, 2012, the petitioner, Dorothy Tracey filed a motion for reconsideration, complaining that the imposition of a “new duty” on landlords was fundamentally unfair and unconstitutional as applied to her. An answer to the motion was filed by the respondents. As to the Court’s holding with respect to pit bulls, I would deny the motion.Furthermore, the cases cited in the April ruling also involved "pit bulls." The Court wrote: "There is no suggestion in any of them (except a brief reference in Wade v. Hartley) that the dog in question was or might have been a crossbred." Because the cross-bred issue was not raised in Tracey v. Solesky, there was no discussion about what the term embodied. Thus, the extension of strict liability to cross-bred pit bulls, "should await a case in which that issue is fairly raised."
For the reasons stated in Judge Cathell’s Opinion, I do not believe that a "new duty" was created or that there is anything unconstitutional or unfair about holding Ms. Tracey liable for the gruesome damage done to Dominic Solesky by a pit bull that she knowingly, and with obvious reservations, allowed her tenant to keep on her property.
The Opinion is not as dramatic and pervasive as the motion claims. It does not prohibit the ownership or breeding of pit bulls; it does not require that persons who own such dogs get rid of them. By imposing long-standing principles of common law strict liability for what is now clearly foreseeable damage done by those dogs, it simply requires that those who possess them or permit them to be on their property take reasonable steps to assure that they do not run loose or otherwise are in a position to injure other people.
That said, having re-read the briefs, relevant portions of the record extract, and the dissent, I am now convinced that, on the record before us, the application of the Court’s holding of strict liability to cross-bred pit bulls was both gratuitous and erroneous. I would grant the motion for reconsideration, in part, to delete any reference to cross-bred pit bulls (i.e., part pit bull and part some other breed of domestic dog), so that the Court’s holding would apply only to pit bulls that are not cross-breds. There are two reasons for my change in position. First, there was never any assertion, suggestion, or finding in this case that the dog was a cross-bred -- was anything other than a pit bull. Second, it is not at all clear what "cross-bred" really means -- whether it is limited to the offspring of two pure-bred dogs of different breed, so that the offspring is, in effect, half of one and half of the other, or includes succeeding generations bred from cross-bred parents. The complaint filed in the Circuit Court alleged that the dog that mauled young Dominic was a "pit bull terrier."
The Court's Opinion was written by Judge Alan Wilner. Joining in the majority Opinion were Judges Harrell, Greene, Adkins and Barbera -- though Judges Harrell, Green and Barbera maintain their dissent to the extension of strict liability to the owners of pit bulls and to the owners of property who permit tenants to keep pit bulls on their property. Chief Judge Bell and Judge Cathell (who wrote the original Opinion) both would have denied the motion to reconsider.
More discussion about the Opinion is forthcoming, particularly concerning the Court's sharp language of the landlord. The Court found nothing unconstitutional or unfair about, "holding Ms. Tracey liable for the gruesome damage done to Dominic Solesky by a pit bull that she knowingly, and with obvious reservations, allowed her tenant to keep on her property" and footnote 2, which relates to wolf-hybrids and Maryland Code, § 10-621(b) of the Criminal Law Article.
08/15/12: Anthony Solesky, Father of Pit Bull Mauling Victim, to Testify at Hearings
06/18/12: Maryland Pit Bull Task Force Forum Live Tweeting June 19th @Supportthecourt
06/08/12: DogsBite.org Launches Maryland Dog Bite Victim Advocacy Web Page...
04/30/12: Maryland Court of Appeals Holds Pit Bull Owners and Landlords Accountable...
01/16/12: Pit Bull Attack Victims May Have New Hope to Recover from Landlords After Maulings
11/02/11: Letter of Gratitude to Founder Colleen Lynn from Parents of Mauling Victim
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| 8/21/2012 1:19 PM |
The "assumption" is that the legal definition of a pit bull would still control. Thus, the removal of the term "cross-bred" would not necessarily mean that a civil plaintiff would have to establish the dog is a 100% purebred American Staffordshire Terrier. Given that the Court cited portions of the Denver ruling, including the following:
Since section 8-55 allows the determination that a dog is a pit bull based on nonscientific evidence, the dog owners assert that they are denied substantive due process. The city, however, is not required to meet its burden of proof with mathematical certainty of scientific evidence. Therefore, even though section 8-55 permits a finding of pit bull status to be based on expert opinion or on nonscientific evidence, such a procedure does not violate the dog owner’s due process rights.
Let's look to Denver's legal definition of a pit bull:
A "pit bull," for purposes of this chapter, is defined as any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds.