Maryland Legislature Mutes Landmark Ruling, Tracey v. Solesky, During 2014 Legislative Session

Included: Timeline of Major Events from 2007 to 2014

Annapolis, MD - On April 8, Governor Martin O'Malley signed Senate Bill 247 into law abrogating the Court of Appeals of Maryland's decision in Tracey v. Solesky. The 2012 decision declared pit bulls "inherently dangerous" and attached strict liability when a pit bull attacks a person. This liability extended to landlords when a tenant's pit bull attacks. DogsBite.org submitted an amicus brief to the high court on behalf of the young mauling victim. The high court agreed with our brief.

Only the Court Can "Overturn" a Previous Decision

Headlines emerged after the bill passed both chambers stating that legislators had "overturned" the high court ruling. What is more accurate is that legislators crafted legislation that muted the Court's decision, passed it through both houses and the governor signed this bill into law.1 Despite this legislative action, the Solesky decision lives on. Lawyers and judges across the U.S. will still be able to cite the Solesky decision as the seminal case declaring pit bulls "inherently dangerous."

New law reigns in Maryland, but the value of the Solesky decision in 49 other states is not lost.

Legislators Did Not Craft What We Had Hoped

In the timeline of events (at the bottom of this post), we briefly explain the four legislative sessions the various bills took to finally reach approval by both bodies. Whether or not to abrogate the decision was never up for debate; all versions of both House and Senate bills contained the full abrogation of the Solesky decision. Given that this was true, the Solesky family, their attorney and DogsBite.org quickly moved to support a meaningful strict liability bill inclusive of all dog breeds.2

A strict liability standard would advance the rights of all Maryland dog bite victims, who pre- and post-Solesky were subject to the One Bite rule.

During the 2nd Special Session in 2012, this strict liability bill was put forward and voted down by the House. Next came the first "compromise" bill, also known as the rebuttable presumption bill during the 2013 Regular Session. The key defect of this bill was the low level of evidence a dog owner would need to rebut the presumption, only "by a preponderance." When the Senate amended it, raising the threshold to "clear and convincing" evidence, the House crushed the bill.

When the 2014 Regular Session began, we received bad news from legislative insiders, "It's all about landlord relief," and "something will pass this session." Notably, landlord relief has nothing to do with pit bulls or the overly orchestrated animal welfare lobby that frankly had no understanding as to why the 2013 bill failed. The bill failed due to the House's desire to codify the One Bite rule into law (rebuttable presumption bill) versus the Senate wanting a uniform strict liability bill.

With the House and Senate still at odds in 2014, a second poor rebuttable presumption bill was introduced by the same sponsors, Del. Luiz Simmons and Sen. Brian Frosh, with one new twist. The new legislation (SB 247) guaranteed the victim a jury trial -- the 2013 version allowed for a summary judgment by a judge, denying the victim a jury trial. The Senate was at least able to attach an amendment holding owners of "at large dogs" that attack a person strictly liable.

Overall, a paltry and embarrassing response by Maryland legislators to the landmark ruling by the Court of Appeals in Tracey v. Solesky.

How Should Have Legislators Responded?

It was expected that the legislature would act after the high court's ruling. The Solesky decision blared a horn at the inadequacies of Maryland's One Bite rule. But the Court could only rule on what was before it, which were multiple appellate decisions involving pit bull injuries and premise liability prior to Solesky. The main decision was Matthews, which placed landlords on notice of the dangerousness of pit bulls in 1998 and was the means for the Solesky family to bring a civil claim.

The Solesky decision should have been the benchmark to advance more meaningful legislation to provide stronger protections for all Maryland dog bite victims. The legislature should have acted by keeping the decision intact and creating a strict liability statute for all dog breeds, as are present in 30 other U.S. states. As for landlord liability, the high court left open the possibility of adding rottweilers at a future time, the second most recognized, well-documented dangerous dog breed.

Will the Pit Bull Mauling Issue Go Away?

As five Maryland appellate court cases have already shown legislators, No.3 The issue of "who pays" after a violent pit bull attack -- four of the five appellate cases involved landlord liability -- is tantamount in the state. The new law rolls back landlord liability to pre-Solesky, Matthews (1998), which created the conditions for the Solesky family to file their lawsuit. If a pit bull mauling case emerges in the future that mirrors circumstances in Solesky, that attorney will cite Matthews too.4

Matthews v. Amberwood (1998)

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 ...- Court of Appeals of Maryland

Further, as shown in the Solesky decision, substantial new evidence documenting the dangerousness of the pit bull breed has developed since 1998, including multiple scientific peer-reviewed studies and appellate decisions in other states. As Baltimore Sun columnist Dan Rodricks pointed out after the 2014 Session, any person with access to Google Search can see for himself how frequent vicious pit bull maulings and fatalities are occurring in this country.

In the two years since the Maryland Court of Appeals ruled that pit bulls were inherently dangerous dogs, I developed a hobby: Pit Bull Google. It's a very edifying activity. Anyone with access to the Internet can do it ... Without fail, the search turns up a news story about a vicious dog attack somewhere in the U.S. within the last four to 48 hours ... In the two years that I've been playing Pit Bull Google, I've read and watched news reports about adults and children killed by pit bulls or what police described as "pit bull mixes," about elderly people and toddlers being maimed, or about pit bulls killing ... - Dan Rodricks, Baltimore Sun

What Else Did the Ruling Accomplish?

Though legislators muted the Solesky decision, it still accomplished many feats. For instance, every tenant lease in the state was rewritten to prohibit pit bulls during the period the ruling stood. Will this change because of the new state law? Not likely, given that landlords had been on notice about pit bulls since Matthews (1998), as the Solesky decision confirmed. Post Solesky, landlords are even more on notice and will likely take mitigating steps to even avoid "indirect" liability.

Though only about 20% of dog attacks occur when the animal is "at large," at least these victims are now free of the "rebuttable presumption" nonsense and free of the One Bite rule. Owners of these dogs are now automatically held to a strict liability standard under Maryland law. Finally, one must acknowledge the heightened awareness the Solesky decision brought to the pit bull mauling issue on a state and national level, and brought it for a sustained period of time: two long years.

We asked Tony Solesky, who is currently running for the position of Baltimore County Executive, if he had any additional thoughts. "This problem is self-evident," he said. "When you have a problem that is self-evident, and you bring awareness to this problem only to be met with great resistance and a concerted effort to suppress this awareness, it shows you that the forces behind this suppression are sinister." Tony added, simply, "Pet companionship should not bring death."

Timeline of Major Events - Tracey v. Solesky

• April 28, 2007 - 10-year old Dominic Solesky suffers a life-threatening attack by a pit bull while playing Nerf tag near his home. He nearly bleeds to death due to a femoral artery injury. The dog's owner hauls the animal away from the bloody scene and never returns. Minutes earlier, the dog had attacked Dominic's friend, Scotty Mason.
• May 15, 2007 - The dangerous dog hearing. Witnesses of the attack give emotional testimony and parts of the 911 call are played. It is the first time Dominic's parents see the dog's owner, Thomas O'Halloran, who refuses to look at them during the hearing. O'Halloran agrees to surrender his attacking pit bull for destruction.
• May 15, 2007 - After the hearing, Dominic's parents, Tony and Irene Solesky, return to the hospital and learn that he can come home after 17 days of hospitalization at Johns Hopkins. They arrive home in time to see the evening news that highlighted the hearing and O'Halloran "fleeing" WBAL.com reporters (See: related video)
• June 19, 2007 - Baltimore County police charge O'Halloran with one count of reckless endangerment. After his pit bull attacked Scotty, he placed the dog back into its outdoor temporary pen, brought Scotty into his house and "cleaned him up" then told Scotty not to tell anyone or "he would get him," according to sworn testimony.
• September 17, 2007 - Hearing for proposed county breed-specific law. Tony Solesky describes this hearing in his ebook (Chapter: Dog (and Pony) Show): "Sadly, and in a demeaning way, rather then this being a Public Health issue, it was allowed to and turned out to be, a referendum on dog owner’s rights." (See: related video).
• October 15, 2007 - Out on the West Coast, DogsBite.org launches its website, about 25 pages in size, four months after the founder is attacked by a leashed pit bull while jogging in her neighborhood. We begin our correspondence with the Solesky family 2.5 years later. By the end of this timeline, the website will have over 2,500 pages.
• February 12, 2008 - O’Halloran admits to guilt and accepts a plea agreement to avoid going to jail (See: related video). He receives a 2-year period of probation and a conviction for reckless endangerment. Dominic's father expresses gratitude during the video that his son survived and that the dog's owner finally admitted to guilt.
• March 28, 2008 - Dominic's parents, Tony and Irene Solesky, file a civil complaint against the dog's owners and the landlord, Dorothy M. Tracey, in the Circuit Court for Baltimore County. Tony reflects in his ebook (Chapter: Civil Doody (Duty)): "Civil action was just one more in a series of avenues we were committed to pursuing."
• November 5-7 2009 - The civil court trial. The case proceeds to a jury trial, but ends when the circuit court
  judge grants the motion for judgment in favor of the landlord. Tony explains in his ebook (Chapter: Civil Doody (Duty)): "It is better stated that the landlord performed no duty to Dominic Solesky." The Solesky's appeal the ruling.
• March 1, 2010 - Tony contacts DogsBite.org for the first time; we had known about his case since March 2008. "I was listening to your appearance on a Philly radio station," Tony writes. "My son and a playmate were attacked by a Pit Bull in Towson, MD April of 2007." Thus the Solesky and DogsBite.org relationship began.
• April 1, 2011 - The Annals of Surgery, a peer-reviewed scientific journal, publishes a study concluding that "attacks by pit bulls are associated with higher morbidity rates, higher hospital charges, and a higher risk of death than are attacks by other breeds of dogs." The high court will later cite the entire abstract of this study in its ruling.
• April 5, 2011 - The Maryland Court of Special Appeals rules in favor of Solesky. The Court wrote, there was "sufficient evidence to survive a motion for judgment" and vacated the circuit court judge's entry in favor of the landlord and remanded the case to that court for further proceedings. The landlord, Tracey, appeals the ruling.
• October 20, 2011 - DogsBite.org submits an amicus brief written by attorney Don Bauermeister to the Court of Appeals of Maryland on behalf of the young mauling victim. The American Society for the Prevention of Cruelty to Animals (ASPCA) had already submitted an amicus brief to the high court in support of the landlord.
• April 26, 2012 - DogsBite.org receives an urgent morning phone call from Tony. "Please check the high court's website now!" After reading the first few pages "repeatedly," we send it out to our internal email list stating only, "It starts out with a 1916 Baltimore pit bull mauling." Indicating that the Court fully grasped the issue.
• April 26, 2012 - The Court of Appeals of Maryland rules in favor of Solesky. The Court's landmark decision also declared pit bulls "inherently dangerous" and modified Maryland common law by attaching strict liability when a pit bull attacks a person and extended this liability to landlords when a tenant's pit bull attacks.
• May 14-16, 2012 - The 1st Special Session for Maryland legislators is called to reconcile the state budget; multiple bills are introduced to abrogate the Solesky decision. This session is dedicated to reconciling the state budget and financing issues. Bills introduced regarding the high court's decision are ignored.5
• May 30, 2012 - A 10-member joint legislator task force is formed, the Pit Bull Task Force, to "study the impact" of the high court's ruling and to make recommendations on legislation. In response, on June 8, DogsBite.org launches the Maryland Dog Bite Victims' Advocacy web page to help support the high court's ruling.
• June 19, 2012 - The Pit Bull Task Force hearing. Tony (See: related video), his wife Irene (See: related video) and their attorney Kevin Dunne testify before the committee. DogsBite.org live tweets the full hearing (Maryland Pit Bull Task Force Forum Live Tweeting) and WBAL.com covers the hearing and films the testimony.
• August 9-15 2012 - 2nd Special Session is called to determine gambling expansion; multiple bills are introduced to abrogate the Solesky decision including one meaningful strict liability bill. All fail to pass the session. (See: blog post wrap of session and watch Senator Jamie Raskin explain why the strict liability bill failed).
• August 21, 2012 - In a rare decision by the high court to grant a motion for reconsideration, the Maryland Court of Appeals narrows its original ruling by limiting it only to pit bulls and removing the terms: cross-breds, pit bull mix, or cross-bred pit bull mix. The Court did so because Solesky had no references to cross-bred pit bulls.
  In the fall of 2012, the Solesky family settles their civil case after five years.
• December 17, 2012 - The Solesky family releases the 911 call at the center of the high court decision in hopes that legislators will watch it before the upcoming session. "No parent should ever have to endure this," Tony said then. The 9-minute video is made up of multiple 911 audio tracks; created and edited by DogsBite.org.
• January 9 - April 8, 2013 (Regular Session) - The poor rebuttable presumption bill, also called the "compromise" bill, is introduced by Del. Luiz Simmons and Sen. Brian Frosh. It fails to pass the session after the Senate adds a critical amendment to it. The two chambers remain deeply divided at the end of the 2013 session.
• February 5, 2013 - The Senate hearing. The Solesky family, including their two son's Dominic and Jimmy, their attorney and DogsBite.org provide oral testimony in opposition to the "compromise" bill (Listen to testimony, Dominic and Jimmy rock the hearing room!). Read the written testimony submitted by DogsBite.org.
• April 9, 2013 - The Baltimore Sun newspaper runs its "very first" story that centers upon the Solesky family after the "compromise" bill fails to pass. Up until this point, the Sun had published a slew of news articles protesting the Solesky decision and sympathetic to pit bulls. The voice of mauling victims was virtually absent.6
• January 8 - April 7, 2014 (Regular Session) - The poor "compromise" bill, rebuttable presumption version 2.0, is re-introduced by Del. Simmons and Sen. Frosh with one significant change, the guarantee a jury would hear a victim's case. Also re-introduced is a strict liability bill that only applies when a loose dog attacks.
• February 6, 2014 - The Senate hearing. Tony, his attorney and Andrea Mason provide oral testimony (Listen to testimony). During the hearing, Sen. Bobby Zirkin (who strongly supports a strict liability bill) grills the HSUS representative on her position. He asks why a "blameless victim" should have to pay? (Listen to grilling).
• February 6, 2014 - Senate hearing, DogsBite.org submits written testimony, a historical reflection first begun by the Court in its opening paragraph by citing a 1916 pit bull mauling. The paper reviews articles from 1844 to 1922 published by Baltimore newspapers about fatalities, maulings and civil lawsuits involving pit bulls.
• February 26, 2014 - Brian Sears of The Daily Record live tweets the Senate floor debate where Sen. Bobby Zirkin attempts to amend the poor "compromise" bill, sponsored by Sen. Frosh, to a strict liability bill (loss 22-25 vote). Zirkin successfully adds an amendment for strict liability when an "at large" dog attacks (win 25-22).
• April 8, 2014 - Governor O'Malley signs the "compromise" bill into law that does not provide uniform or adequate justice for Maryland dog bite victims. The governor should have rejected the bill, forcing the two chambers, who had been inching closer together, to draft legislation that is truly meaningful for all dog bite victims.

A Special Thanks to the Good Senators

A special thanks goes out to Sen. Bobby Zirkin, the President of the Senate, Thomas V. Mike Miller, Jr., and the other Senators who got very close on February 26 (in a 22-25 loss) to amending Sen. Frosh's poor "compromise" bill to a full and meaningful strict liability standard for all occurrences of damaging bites, not just limited to the meager 20% that involve "at large" dogs.

Related articles:
11/05/13: 2013 Dog Bite Fatality: Baltimore Woman, 56, Killed by Her Pet Pit Bull
04/17/13: Maryland High Court Ruling Stands: Pit Bulls are 'Inherently Dangerous'
12/17/12: Solesky Family Releases 911 Call at the Center of High Court Decision...
08/21/12: Maryland Court of Appeals Narrows Decision to Pit Bulls; Removes Cross-Bred Pit Bulls
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
11/02/11: Letter of Gratitude to Founder Colleen Lynn from Parents of Mauling Victim
03/10/10: Dangerous By Default: Extreme Breeds by Anthony Solesky

Main Photo: Washington Post  |  Twitter photos: Brian Sears/The Daily Record