High court takes some bite out of its ruling -- Gazette.Net


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Maryland's high court said Tuesday it went too far by including cross-bred pit bulls in its controversial April ruling that declared pure, mixes and crosses of the breed inherently dangerous.

The state Court of Appeals reversed a portion of its highly criticized decision in Tracey v. Solesky — in which the Court held a pit bull owner's landlord financially liable for the tenant's dog mauling a child — by ordering that any references to cross-bred pit bulls, pit bull mixes or cross-bred pit bull mixes be deleted from the April 26 opinions.

In the decision written by Judge Alan M. Wilner, the court stood by its finding for purebred pit bulls, but said that after review found its application to cross-bred pit bulls “both gratuitous and erroneous” as the cross-bred issue never was raised or argued in the case.

While the court granted relief to owners of cross-bred pit bulls, it denied landlord Dorothy Tracey her request, with the judge stating he did not believe “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.”

Animal shelters across the state were hoping for relief after Maryland lawmakers failed to approve measures that would have stopped the ruling that pit bull-type dogs are inherently dangerous from being applied to more cases.

“We've been trying to do a very good job to make people understand that the law is not in effect yet,” said Jen Swanson, executive director of the Baltimore Humane Society's shelter in Reisterstown, on Thursday.

Until the Court of Appeals acted on that motion, the original ruling's application on cases beyond Tracey was on hold.

Meanwhile, when owners of pit bull-type dogs call the Humane Society, worried that they'll have to relinquish their dogs or move, “all we can do is tell them is to contact an attorney [and] if they don't have the means then, unfortunately, we don't have the means to help them [hire one],” Swanson said.

In many Maryland shelters, dogs classified as pit bulls or pit bull mixes outnumber all other types and their numbers likely are to increase, shelter managers said.

“It's always been difficult to find homes for pit bulls and now people are not adopting pit bulls because of the ramifications of ownership,” said Deborah Baracco, administrator for Howard County Animal Control.

Swanson said she is “fairly confident” that when the legislature goes into regular session in January “they'll put something in place that's fair for everybody.”

But that did not happen in the just-concluded special session when the House of Delegates and Senate took different approaches to halt the effects of the decision in Tracey.

Both chambers' proposals would have placed strict liability on owners of all types of dogs, instead of the common law standard that has held dog owners liable only if the owner knew the dog had a propensity for being dangerous.

After the House gutted the Senate bill to conform to its own more complicated proposal, the Senate did not take up the measure.

“The differences between the bodies are very stark,” Senate President Thomas V. Mike Miller Jr. (D-Dist. 27) of Chesapeake Beach said Aug. 14 before the Senate convened for the last time during the special session, called to consider whether to expand gambling.

“They've left us no alternative,” said Senate Judicial Proceedings Chairman Brian E. Frosh, who sponsored the Senate bill.

Frosh (D-Dist. 16) of Chevy Chase said he offered a compromise that would have returned landlord liability for all dogs to the common law standard through June 2013, which would have given the legislators more time to consider the issues than they had in the special session that ran less than a week.

Some animal advocates criticized the strict liability proposals as an unfair “guilty until proven innocent” approach that could affect 2.1 million Maryland households and even more dogs.

Most animal advocates favored measures that would have held all dog owners strictly liable, but beyond the Tracey case, would have returned liability for landlords, as well as for persons temporarily holding or caring for the dog, to the common law standard.

Associations representing apartment and office building owners and managers also called for a return to the common law standard.

Condominium and homeowner associations urged legislators to change the law to protect them from liability that could arise from the Court of Appeals' decision.

Anthony Solesky, whose 10-year-old son was mauled, his femoral artery punctured and underwent five hours of surgery to survive his wounds, said the court's ruling was correct.

Solesky told lawmakers that, as a painting contractor, he had a “higher responsibility not to spill paint on your lawn,” than landlords did before the ruling.

Legislators said they were concerned that changes to the law would cause household insurance rates to increase and that they wanted more information on how insurance rates have been affected in more than 30 states that enacted some form of strict liability for dog owners.

The Senate bill, approved on a 41-1 vote Friday, would have made dog owners strictly liable for any injury their dog inflicts, including death.

The House bill, approved 127-0 Aug. 14, said owners would be held strictly liable only if their dogs were running loose and bit someone, causing injury or death.

Both the House and Senate bills made exceptions if the victim was trespassing on the owner's property or committing a crime.

Under both bills, landlords or others who have “the right to control the presence of a dog” could have been held liable if they knew the dog had a propensity to be dangerous.

Under the House bill, persons who have temporary custody or control of a dog — including veterinary hospitals, commercial kennels, animal shelters and government animal control units, pet shops, dog walkers and pet sitters — would not have been considered an “owner” and therefore would not have been strictly liable.

The Senate bill differed in that it would not have specifically exempted dog walkers and pet sitters from “owner” liability.

Both bills would have made exceptions to owner liability in cases where dogs were used appropriately in police and military work.

The House bill also would have exempted owners of guide dogs.

kalexander@gazette.net

mhyslop@gazette.net