Compromise Bill Fails

Annapolis, MD - On April 8, the last day of the Maryland General Assembly's 2013 Legislative Session, after weeks of discussion, amendments and name calling from Delegate Luiz Simmons,1 the House killed the final negotiated bill that would have reversed the high court ruling and set forth a new dog bite liability standard. For months, the difference between the two chambers lay in reverting back to the pre-Solesky one bite rule or adopting a form of strict liability.

The last version of the bill, which was negotiated in a conference committee, created stronger protections for children 12-years old and younger. Under the bill, dog owners would have to provide "clear and convincing" evidence that they had no prior knowledge of their dog's propensity to bite for incidents involving this age group. For all other dog bite victims, dog owners would only have to prove lack of knowledge "by a preponderance" of the evidence, a reduced standard.

Essentially, persons 13 and older would be stuck with the one bite rule.2

DogsBite.org became involved in Tracey v. Solesky in the fall of 2011 after filing an amicus brief on behalf of the young mauling victim. On April 26, 2012 the Maryland Court of Appeals issued a ruling declaring pit bulls "inherently dangerous" and attached strict liability when a pit bull attacks a person. This liability extended to the landlord when a tenant's pit bull attacks, as was the case involving then 10-year old Dominic Solesky. This civil case is now resolved.

Since the ruling there have been two legislative attempts to undo the court's ruling, the August 2012 Special Session and the 2013 Session, which ended on April 8. We'll briefly discuss the highlights of the last session describing the bills and amendments, including the differences between the House and Senate chambers. These differences lasted into the closing hours of the session, causing the final negotiated bill to die and leaving the high court's ruling intact.

Defective Legislation Introduced

In January, Delegate Simmons and Senator Brian Frosh introduced matching "compromise" legislation into both chambers that alleged stronger protections for all dog bite victims. The Solesky family, their attorney, DogsBite.org and trial attorneys opposed the bills. Under the bills, once a dog owner proved "lack of knowledge" victims would still have to prove the owner knew or should have known of the vicious propensities of the dog, also known as the one bite rule.

The "compromise" bill, SB 160 (cross-filed as HB 78) became known as the "rebuttable presumption" bill and was defective from the start. The bill was little more than legal language that created the illusion of recourse for dog bite victims, while at the same time codifying the one bite rule into Maryland law. Specifically, SB 160 and its counterpart were silent on the proof a dog owner must establish to prove "lack of knowledge," thus by law it fell to the lowest level.3

To help clarify this, we've included a portion of the written testimony submitted by DogsBite.org to the Senate Judicial Proceedings Committee. (See: Full written testimony). Notably, both bills put forth since the Court of Appeals ruling fully abrogated the Court's ruling with little debate. The crux of the debate is whether to revert back to the pre-Solesky one bite rule or to advance the rights of all Maryland dog bite victims by adopting a form of strict liability for all dog breeds.

Summary

DogsBite.org strongly opposes "compromise" bill SB 160 and its House counterpart HB 78. We urge Senators to amend SB 160 by adopting strict liability.

The "compromise" legislation serves only to compromise the health and safety of all future Maryland dog bite victims. Instead of providing a remedy for these victims, the two bills carefully shield dog owners, landlords and insurance providers from financial responsibility after a damaging dog attack. The proposed legislation also appeases animal welfare groups. Not one of these groups in any way operates under a mission to protect the health and safety of human lives.

The very victims at the center of the high court's decision, sufferers of serious and deadly pit bull injuries, have been abandoned and silenced by this legislation, despite the fact that pit bull mauling deaths are up 556% since the Matthews ruling.

Under the "compromise" bills, a dog owner merely has to provide minimal evidence that he or she was unaware of any previous vicious acts by the animal. Afterward, the victim must still prove the dog owner knew or should have known of the dangerous or vicious propensities of the dog, effectively, the one bite rule.

Defective Legislation Advances

After the House unanimously passed HB 78, the only hope left was for the bill to be amended in the Senate. From the start, Senate members appointed to the Pit Bull Task Force in May 2012, and during the 2012 Special Session, when Senate members introduced a strict liability bill (which the House killed), the majority of Senate members favored strict liability for all dog breeds under the principal that dog owners should be responsible for the actions of their dogs.

Senator Bobby Zirkin stated it simply in March: "I love dogs but if my dog bites a little kid, I should be responsible for it -- not the kid and not the parents of the kids." Senator Zirkin made the statement after introducing an amendment to SB 160 that raised the level of proof required by a dog owner to establish "lack of knowledge." The former minimal rebuttable evidence required by the dog owner, "by a preponderance" of the evidence, was raised to "clear and convincing" proof.

The Senate adopted the amended version of SB 160 unanimously on March 14.

Predictably, the House unanimously rejected the amended bill and on March 27, the count down to the end of the session began in earnest. With just days remaining, a conference committee was created (3 members from each chamber) to iron out the differences between the two chambers. On the final day of the session, April 8, the conference committee negotiated a new compromise where only children 12-years old and younger qualified for the higher level of proof.

The Senate passed the negotiated bill unanimously. During the House debate, however, the bill was tabled -- House Speaker Michael Busch said the measure did not have enough votes to pass. The bill never made it back to the floor, and simply died as the clock for the session ran out. Delegate Benjamin Kramer, who helped kill the negotiated bill, had the gall to immediately request that a 2013 Special Session be called by Governor Martin O'Malley to resolve the impasse.4

What Happens Next?

Governor O'Malley has the power to call a special session. The legislature can also vote to approve one. "Anything can happen in politics," as they say, but Delegate Simmons is already signaling the 2014 Session. Simmons recently complained that his time spent last summer creating the "rebuttable presumption" bill went down the drain. Simmons plans on spending this summer drumming up a dog bite liability bill too, hopefully one not as defective as his last.

Until then, the Tracey Court ruling stands: Pit bulls are "inherently dangerous."

1Senate President Thomas Mike Miller later rebuked Simmons on the Senate floor, referring to him as, "one legislator in the House who has an extreme personality and is lashing out at the Senate."
2Children 12-years old and younger is the most vulnerable age group for dog bite injuries followed by the elderly. The House refused to even provide stronger protections for children who are injured by dogs.
3The lowest level of proof is "by a preponderance." During the January 30 House hearing (skip to 2:15), attorney Robert Zarbin, the legislative chair for the Maryland Association for Justice, explains how "rebuttable presumption" would work in a dog bite lawsuit and the ease in which a dog owner could rebut the presumption.
"This idea of a rebuttable presumption … really is going to amount to nothing. Because a rebuttable presumption is simply that. Once it's rebutted, the bubble bursts.
I hear various members worried somehow this is going get to a jury -- it won't get to the jury. I'll give you an easy example of rebuttable presumption. In a car crash, there's a rebuttable presumption of agency. The driver of the car is deemed to be the agent, server and or employee of the car owner. It happens all the time. A son's using his dad's car. So you sue both the father and the son because one's the owner and one's the operator; it's a rebuttable presumption.
You know how they get out of the rebuttable presumption? They file an affidavit that says, 'My son wasn't doing anything on my behalf, he was just using my car with my permission.' Goodbye. Motion for summary judgment granted. The case against the owner gone.
How is this any different than here? You know it's going happen. You're going to ask me to prove a fact that the dog owner will want to forget. Q. 'So did your dog ever bite anyone Mr. dog owner?' A. 'I don't remember him ever being vicious.' Okay. Puts that in an affidavit. Goodbye. Case dismissed by the judge. Because what proof will I have that the dog has ever done anything vicious or done anything aggressive or is negligent?"
4As noted in the New York Times article and by other news agencies, the 2013 Session was historic. Thus, complaints by pro-pit bulls groups that Maryland legislators "didn't do enough" this session are falling on deaf ears.

Related articles:
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