Since it’s the dog days of summer, let’s talk about dogs. Specifically, let’s talk about dog bites, dog attacks and dog maulings.
On Thursday, the Maryland General Assembly went into special emergency session to address gambling expansion, an issue that’s not really an emergency unless you believe that appeasing Senate President Mike Miller’s gambling addiction is a crisis.
Less public attention is being given to a second matter that the special session is dealing with -- dogs. Here’s the background:
A few days after The General Assembly adjourned in early April the Maryland Court of Appeals (Maryland’s highest court) handed down Tracey vs. Solesky, a dog bite case.
On April 28, 2007, a pit bull named Clifford escaped from his owner’s pen in Towson and viciously attacked Scotty Mason. The hysterical, bloodied boy was rescued, and the owner put Clifford back into the pen. A few hours later, Clifford escaped again and mauled 10-year-old Dominic Solesky, severing his femoral artery and nearly killing him. Dominic spent 17 days in Johns Hopkins ICU and a year in rehabilitation.
When the Soleskys sued the pit bull’s owner, the owner filed for bankruptcy. So the Soleskys went after the dog owner’s landlord, 89-year-old Dorothy Tracey.
The trial court ruled against the Soleskys because, under Maryland law, Ms. Tracey had no prior knowledge that Clifford was dangerous.
When it comes to dog attacks, Maryland follows the common-law rule that the victim must prove that the dog’s owner or, in this case, the landlord, was negligent -- that he or she had prior knowledge that the dog was dangerous and failed to act accordingly (i.e., protect the public from the dog).
The legal shorthand is “the one bite rule;” the first time a dog bites someone it’s an accident, but thereafter you’re on notice that the dog is dangerous.
When the Soleskys appealed, Maryland’s Court of Appeals, in a 4-3 decision, confirmed that Ms. Tracey had no prior knowledge of Clifford’s dangerous nature, but ruled for the Soleskys anyway by overturning Maryland’s long-standing “one bite” negligence standard and by adopting a new strict liability standard for pit bulls and pit bull mixes.
“When an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit pull (as both the owner and the landlord did in this case) or should have had such knowledge, a prima facie case is established,” the court said.
Translation: From now on pit bulls and pit bull mixes are “inherently dangerous,” like pet mountain lions or rattlesnakes. So if your pit bull injures someone, you are automatically at fault if you knew that your dog (or your tenant’s dog) was a pit bull or pit bull mix.
Nor must dog bite victims prove that you actually knew it was a pit bull; they need simply prove that you “should have had such knowledge,” whatever that means.
The court’s majority was clearly upset by young Dominic’s injuries and at the growing number of pit-bull cases -- “over the last thirteen years, there have been no less than seven instances of severe maulings by pit bulls ... that have reached the Appellate Courts of this State.” (In one case, the pit bull was named “Trouble,” in another “Rampage.”) But Tracey vs. Solesky is a mess.
Why are only pit bulls being declared “inherently dangerous”? What about German shepherds and Dobermans? And what percent of a dog’s pit-bull mixed pedigree makes it a pit bull? Fifty percent? Ten percent? Also, extending strict liability to anyone who, knowingly, has a pit bull under their control now puts veterinarians, groomers, kennels, dog shows, dog shelters, condo associations, etc., at unfair risk. And how are the insurance companies supposed to deal with this?
Frankly, the Tracey vs. Solesky case is more of an emergency than gambling expansion. So, corrective legislation is being introduced during the special session.
The good news: The corrective legislation will shield from liability landlords and others who happen to have a pit bull under their roof. Only the dog’s owner is responsible.
The bad news: Instead of going back to the common law “one bite” standard that a dog is presumed harmless until its behavior proves otherwise, the corrective legislation goes in the opposite direction. From now on, all dog breeds, not just pit pulls, will be deemed “inherently dangerous.”
So, when Fifi, your 8-year-old miniature poodle, nips the guy next door, you have no legal defense. Fifi is “inherently dangerous” just like a pet cobra, alligator or … pit bull. And, obviously, every Maryland dog owner will be paying higher insurance premiums for the privilege of owning an “inherently dangerous” animal once known as “man’s best friend.”
Maryland’s lawmakers can raise our taxes, legalize same-sex marriage, give in-state tuitions to illegal immigrants, expand gambling, gerrymander to their heart’s content, lie, cheat and steal without much public notice. But they may rue the day they messed with Marylanders’ pets.
Just ask former Montgomery County Executive Doug Duncan, who innocently introduced a county dog leash law that ended up applying to cats as well. When all hell broke loose Duncan beat a hasty retreat but vividly recalls riding in the Burtonsville parade a few weeks later. From start to finish, the crowds on both sides of the street serenaded him with raucous “meows.”
“Animals are the third rail of politics,” Duncan says with a chuckle. State lawmakers should take heed.
Blair Lee is CEO of the Lee Development Group in Silver Spring and a regular commentator for WBAL radio. His column appears Fridays in The Gazette. His email address is firstname.lastname@example.org.