Maryland Court of Appeals Holds Pit Bull Owners and Landlords Accountable After an Attack

Maryland's highest court declares pit bulls "inherently dangerous" in landmark ruling.

On April 8, 2014 the governor signed a bill abrogating this Court of Appeals decision.
On August 21, 2012 the high court narrowed this decision by excluding cross-bred pit bulls.

Tracey v. Solesky
Baltimore, MD - In January, DogsBite.org announced our filing of an amicus brief in a landmark Maryland appeals case, Tracey v. Solesky, in hopes of expanding more liability out to landlords when a tenant's pit bull attacks. The case involves the parents of a young boy seeking damages for injuries inflicted by a pit bull owned by a landlord's tenant. Also at issue is the "dangerousness" of pit bulls being "well-recognized," as determined in the 1998 case, Matthews v. Amberwood.

In Matthews, the Court of Appeals of Maryland ruled in a 4-3 vote that the landlord could have taken steps to abate the danger of a pit bull kept by a tenant when the landlord knew of the dog's presence and was aware of the dog's dangerousness. It was our hope that the Solesky opinion would expand Matthews further. On April 26, 2012, the Court of Appeals, in another 4-3 vote, did expand it and with great clarity by attaching strict liability when a pit bull or pit bull-cross attacks.

Tracey v. Solesky
No. 53, September Term 2012, Opinion by Cathell, J.
STRICT LIABILITY ADOPTED IN RESPECT TO ATTACKS ON HUMANS BY PIT BULL DOGS AND CROSS-BRED PIT BULL DOGS.

Upon a plaintiff's sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull's presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner's or lessor's premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.

Upon receiving the Court's opinion, attorney Kevin A. Dunne, a principal at the law firm Ober Kaler, who represented the Solesky family, told the Baltimore Sun, "the Court of Appeals decision will likely to cause there to be fewer pit bull maulings of the citizens of the State of Maryland." Dunne said the high court's decision "didn't say pit bulls are banned. It makes the owner of the dog financially responsible for the injuries caused. It affects you if your dog hurts somebody else."

The Opinion Broken Down

The Court's opinion opens with the 1916 mauling of a young child by a pit bull, demonstrating just how long this dog breed has been attacking Maryland children. Furthermore, the attack on 10-year old John L. Clark illustrates the manner in which pit bulls attack resulting in many high courts determining that pit bull-type dogs pose a grave danger to the public: "The pit bull refused to release the boy until a witness picked up a 'scantling' and struck the dog, killing it."

The writer of the Court's opinion, Judge Dale R. Cathell, then states:

Over the last thirteen years, there have been no less than seven instances of serious maulings by pit bulls upon Maryland residents resulting in either serious injuries or death that have reached the appellate courts of this State, including the two boys attacked by the pit bull in the present case. Five of the pit bull attacks in Maryland have been brought to the attention of this Court, and two have reached the Court of Special Appeals.

The Court next spells out the details of these cases, which combined led to the Solesky opinion. The most simple explanation of the Solesky opinion is located on page 8:

We are modifying the Maryland common law of liability as it relates to attacks by pit bull and cross-bred pit bull dogs against humans. With the standard we establish today (which is to be applied in this case on remand), when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull (as both the owner and landlord did in this case) or should have had such knowledge, a prima facie case is established. It is not necessary that the landlord (or the pit bull's owner) have actual knowledge that the specific pit bull involved is dangerous. Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous.

Further into the opinion, the Court addresses Matthews in more detail and how the Court "began our modification of the old common-law rule with respect to dog attack cases with our strong dicta in Matthews, supra, highlighting the particular characteristics of pit bulls and cross-bred pit bulls." And, "the language of that case clearly forecasted the direction the Court might take in the proper case. This is that case," the Court wrote, referring to Solesky. In Matthews, the Court stated:

The extreme dangerousness of this breed, as it has evolved today, is well recognized. "Pit bulls as a breed are known to be extremely aggressive and have been bred as attack animals." Giaculli v. Bright, 584 So.2d 187, 189 (Fla.App. 1991). Indeed, it has been judicially noted that pit bulls "bit[e] to kill without signal" (Starkey v. Township of Chester, 628 F. Supp. 196, 197 (E.D. Pa. 1986)), are selectively bred to have very powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds ... ("pit bull dogs represent a unique public health hazard ... [possessing] both the capacity for extraordinarily savage behavior ... [a] capacity for uniquely vicious attacks ... coupled with an unpredictable nature" and that "[o]f the 32 known human deaths in the United States due to dog attacks ... [in the period between July 1983 and April 1989], 23 were caused by attacks by pit bull dogs"). Pit bull dogs have even been considered weapons.

The Court next compiles evidence of the breed's dangerousness, starting with the "special report" issued by the Centers for Disease Control and Prevention in 2000, and the recent medical injury study, "Mortality, Mauling, and Maiming by Vicious Dogs," published in 2011. The Court points out that although the CDC did not recommend breed-specific regulation, it did state: "...laws for regulating dangerous or vicious dogs should be promulgated and enforced vigorously."

Assembling more evidence of the breed's dangerousness, the Court draws upon cases from other jurisdictions that address the inherent viciousness of pit bulls, including the high court rulings of City of Toledo v. Tellings, Bess v. Bracken County Fiscal Court, The Florida Bar v. Pape, McNeely v. United States and finally, The Colorado Dog Fanciers v. The City and County of Denver. Many portions cited in the opinion can be found on the Appellate Court Decisions page.

Concerning arguments raised by pit bull owners in Colorado Dog Fanciers, the Court provides the following footnote: "Some are similar to the arguments made in the appellant or amicus' briefs filed in the present case by supporters of pit bulls. In light of Maryland's situation, we find those particular arguments unpersuasive. (Notably, in Solesky, the American Society for the Prevention of Cruelty to Animals wrote the brief in opposition of the young boy nearly killed by a pit bull.)

In this same footnote, the Court adds that the opposition to breed-specific laws has been present for years. But that the Court's opinion "does not ban pit bulls, but puts a greater responsibility for vicious dogs where pit bull advocates have long argued it should be - with the owners and others who have the power of control over such dogs. Our opinion imposes greater duties by reducing the standards necessary to hold owners and others liable for the attacks of their pit bulls."

Discussion

Given the misleading slogan of "punish the deed" by pit bull owners, advocates and national animal groups -- misleading in that victims often cannot pursue civil claims after a violent attack unless the owner knew the dog had the "propensity to be dangerous" and/or, as in the case of Solesky, the pit bull owner's debts were discharged after filing bankruptcy -- one can only imagine how many Maryland pit bull owners and landlords are extremely alarmed by the Court's opinion.

The fact is, "It's the owner not the breed," is a theme perpetuated by the owners of dangerous dog breeds, primarily pit bulls, to help maintain the existence of arcane "one free bite" rules and other obscene loopholes that often free these owners of any civil or criminal liability after their dog attacks once and even a second time! In a nutshell, such dog owners do not want their dogs blamed nor do they want to be on the hook from a financial or criminal liability standpoint.

Reading the Court's footnote in regards to this brings to mind two phrases, "Be careful what you ask for" and "payback is hell." Pit bull owners and "others who have the power of control over such dogs" (specifically landlords) in the State of Maryland are indeed going to be paying back to victims of violent pit bull maulings due to this opinion, which explicitly modified Maryland common law of liability as it relates to attacks by pit bulls and pit bull-crosses against humans.

The Dissent

There really is only one part of the dissent worth discussing, as parts about the "hysteria regarding pit bulls" and the "media has demonized pit bulls" are on par with the invalidity of the Nanny dog myth. That part is called judicial activism or as the author of the dissent, Judge Clayton Greene, Jr. wrote, "legislating from the bench." The Solesky opinion, however, was not shaped out of thin air. It was developed over many rulings and was specifically "forecasted" in Matthews.

We do expect national animal groups, particularly the ASPCA and Best Friends Animal Sanctuary, to bring their pro-pit bull propaganda to the Maryland General Assembly during its next session in an effort to derail the Solesky ruling. Yet, this effort may prove difficult. Their fight will not be to derail a statewide pit bull law, such as Ohio's former law, their fight will be to derail a liability law that holds the owners of pit bulls and landlords financially responsible after an attack.

Getting these votes is going to be a lot tougher than it was in Ohio. For instance, "Dear Maryland State Representative, it is cruel and unusual punishment that pit bull owners are automatically held financially responsible after their dog mauls a person causing permanent disfiguring injuries and sometimes even death. This type of singling out of pit bulls is discriminatory legislation similar to racial profiling. My pit bull would never snap, but even if it did, I should not be held liable."

Background:
The case of Matthews v. Amberwood involved a 2-year old boy and his mother, Shanita Matthews, visiting the leased apartment of Shelly Morton. Morton took care of her boyfriend's pit bull, named Rampage. Numerous complaints of the dog acting aggressively had been reported to Morton's landlord who took no action. The complex also had a "no pet" policy. While Matthews was visiting Morton inside her dwelling in February of 1994, Rampage savagely attacked her son, Tevin Williams. He later died at a hospital. Though the attack occurred inside Morton's unit -- not in a "common" area -- the Court of Appeals reversed a lower court's ruling and held the landlord liable. The Court wrote: "Under the present circumstances, however, where a landlord retained control over the matter of animals in the tenant's apartment, coupled with the knowledge of past vicious behavior by the animal, the extremely dangerous nature of pit bull dogs, and the foreseeability of harm to persons and property in the apartment complex, the jury was justified in finding that the landlord had a duty to the plaintiffs and that the duty was breached."
Judge Cathell, who wrote the Solesky opinion, dissented in Matthews. In the Matthews opinion, the Court of Appeals did not hold Morton, the dog's keeper, or the child's mother, Shanita Matthews, negligent. Specifically, the dissent states: "Thus, the negligence of the tenant Morton, and any possible negligence on the part of Matthews, were simply concurrent causes of the injuries and death of Tevin. They were not superseding causes." The dissenters in Matthews disagreed with the majority, which held that the superseding cause for the child's injuries and death was the landlord. Additionally, the dissent believed that Morton had sole control over the premise where the injury occurred (a private dwelling, as opposed to a "common" area) and sole control over
the dog, not the landlord.
So, how did Judge Cathell go from a dissent 14 years ago to a majority on this legal issue today? This is what is so beautiful about the development of the law. Sometimes one never knows. We would like to think that the continued carnage wrought by pit bulls over the past 14 years has something to do with it.

Related articles:
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
06/16/11: Website Launch: Pit Bull Attacks - The Survivors | Pitbullattacks.org
05/21/11: Texas Doctors Produce Study: Mortality, Mauling and Maiming by Vicious Dogs
01/31/11: Parent of Mauling Victim Responds to North Carolina Pit Bull Fatality
05/17/10: Dominic Solesky Featured in National Dog Bite Prevention Week Video
03/10/10: Dangerous By Default: Extreme Breeds by Anthony Solesky
10/28/09: In Massachusetts, Landlords May Be Liable When Tenant's Pit Bull Attacks