You may have heard about the recent Maryland Court of Appeals ruling in Tracey v Solesky. We’ve been slow to cover this because 1) it’s not technically breed-specific legislation, 2) the news media has been (as usual) covering this ruling with a lot of sensation and useless non-information, and 3) as we are not lawyers, we needed to get a better understanding of what the ruling means and what can be done about it.
In Tracey, the Maryland Court of Appeals has imposed strict liability on “pit bull” owners and their landlords.
About Strict Liability
Many of you probably already live in one of the 35 states that impose some kind of strict liability on dog owners, regardless of their dog’s breed or appearance. In strict liability states, when a dog bites, the bite is the proof that the dog is “vicious” or “dangerous.” The dog owner is liable for any damage done by his or her dog, starting with the first bite. From our perspective, there’s nothing inherently wrong with strict liability. It holds dog owners legally responsible for their dogs’ behavior, which is what we want.
Maryland is not a strict liability state. Maryland, like some other states, applies a general negligence standard. You may have heard it called “one free bite.” That is, if a dog bite goes to court, the dog owner is not held responsible for the dog bite unless it can be proven that the owner knew their dog is dangerous. A first bite is considered a sufficient heads-up to the owner; after the first bite, the owner knows that their dog is dangerous. So a dog owner can be held liable when a second bite occurs.
Whether your state is strict liability or “one free bite” is typically decided by state legislation.
About the Ruling
In Tracey, the court basically changed the proof needed to show that an owner knew their dog is dangerous. Now, if a person knows that they own a “pit bull” (or any dog that is part “pit bull”), this is a sufficient heads-up that their dog is dangerous, and they can be held responsible at the first bite. In essence, Maryland “pit bull” owners are now strictly liable for their dogs.
While, again, we do not believe that strict liability is inherently wrong—and the majority of states already impose it anyway—the breed-specific nature of the Maryland Court of Appeal’s decision is absolutely wrong.
In particular, Maryland victims of non-pit bull dog bites should be outraged by this court decision. The ruling turns the majority of Maryland dog bite victims into second-class citizens. The legal recourses available to Maryland victims are now based entirely on what the dog that bit looks like. Only bite victims where the dog looked like a “pit bull” will have strict liability recourse—everyone else has to continue to live with the “one free bite” rule.
As the dissenting judges point out in their opinion: “Conversely, any other breed of dog in the possession of the owner or on premises controlled by the landlord, no matter how violent, apparently, would be judged by a different standard.” The ruling neither promotes public safety nor treats the public fairly. If the court considers strict liability a safer and more effective option than the current “one free bite” common law, and it truly wanted to improve things, it should have made strict liability appropriate for all dog owners, regardless of their dog’s appearance.
The other twist in this case is the imposition of strict liability on landlords. Again, in many states, landlords are already liable for injuries that occur on their property, but they are not usually considered to be liable for injuries that are caused by their tenants when off their property. This particular part of the ruling is perplexing to this non-lawyer. I do not know of any other law or ruling that is similar.
From the dissenting opinion: “Under the new rule announced today, however, the only corrective action an owner, keeper, or landlord could possibly take to avoid liability for the harm caused to another by a pit bull or mixed breed pit bull is not to possess or allow possession of this specific breed of dog on the premises.” Consequently, we expect renters with “pit bull”-looking dogs to be hit particularly hard by this decision.
Also notable are the pieces of evidence used to support the majority decision in this case. In this day and age, it’s appalling to see a court ruling influenced by flawed, fifteen-year-old statistics; non-scientific garbage published by self-proclaimed “experts”; news media articles; and previous court rulings based on the same flawed information (like the 3000 psi jaw strength myth). You can read the majority and dissenting opinions here, but you might want a strong drink beforehand: http://www.wbaltv.com/blob/view/-/12161754/data/1/-/861vm0z/-/Tracey-v–Solesky–PDF-.pdf
Effects of the ruling
The term “pit bull” was left undefined by the court, so expect incredibly broad interpretation. The ruling could potentially apply to any dog that looks like a pit bull or that someone thinks is a pit bull, even if it’s not.
If you have a “pit bull” or “pit bull mix” (or a dog that someone thinks is a pit bull) AND it bites someone, you can be held strictly liable for the bite in court. **Again, I repeat, strict liability is a fact of life in most other U.S. states. The big difference here is that in MD, your dog’s appearance will determine whether strict liability applies, whereas in other states, it doesn’t matter what your dog looks like.**
If you are a renter, and your dog appears to be a “pit bull,” your landlord may not want the added liability and may disallow your dog. The HSUS is the only group thus far (that I have found) that has issued some important information about MD renters’ rights to help you if you find yourself in this situation. http://www.humanesociety.org/news/press_releases/2012/04/Maryland_pitbull_042812.html
If you are bitten by a dog, it is to your advantage to call the dog a “pit bull” or “pit bull mix.” This will make the court case a lot easier, and recovery under strict liability will be more certain. (For this same reason, expect an increase in court cases involving “pit bulls.”)
Many MD animal shelters have reportedly stopped adopting out dogs that appear to be “pit bulls” as a result of this ruling. We are not sure why these shelters are doing this. It does not logically follow from the ruling—shelters still adopt out dogs in strict liability states. If someone can explain why, please leave a comment. At any rate, expect shelter kill rates to increase if these no-adopt policies persist.
What Can We Do About It?
Because this ruling is not technically BSL—it is not legislation and has not followed a typical process for creating, considering, and voting on it—it can’t be fought through the typical channels that we would fight BSL.
The state Assembly has the power to pass a law that would prohibit the courts from treating people differently in such cases. Such a law could negate the court ruling. It’s doubtful that the Assembly would pass such a law, however.
Maryland residents can get involved immediately by contacting their state delegates and senators and expressing their displeasure with the court ruling. You may also ask your delegate or senator if they would consider passing a law that would negate the ruling. When you correspond, please remain respectful. Remember, state legislators didn’t make this decision.
Please consider, too, that your letter to your lawmaker will be more convincing if you focus on the discrimination that this court has instituted against victims. Neither bite victims nor dog owners should be held to disparate legal standards based on something as superficial as the appearance of dog involved. To do so victimizes the bite victim twice: once when bitten, and again when the dog owner is not held responsible, just because their dog doesn’t look like a “pit bull.”
You can find your state Assembly members here: http://mdelect.net/
Pit Bulletin Legal News will be hosting a discussion about the ruling on Tuesday evening, May 1, at 8:00 PM. http://www.blogtalkradio.com/pit-bulletin-legal-news/2012/05/02/weekly-discussion-of-pit-bull-news–our-first-broadcast
Last weeks MD Ruling – What does it mean? How will it change things? What can be done? We’ve heard your questions…TUNE IN to Pit Bulletin Legal News Radio tomorrow night at 8:00 PM as host Fred Kray addresses the ruling. We’ll be taking your calls during the show! 646-595-4137 Or you can email your questions BEFORE the show to: pitbulletinlegalnewsradio@gmail.com
Pit Bulletin Legal News also has a good summary of the ruling, and various links to news articles.
http://www.pitbulletinlegalnews.com/breaking-news/124-maryland-highest-court-creates-strict-liability-for-pit-bulls
I would like to reiterate that I’m not a lawyer or a judge. Therefore, I’m unfamiliar with the ways in which court rulings and precedents affect the rest of the legal system. It’s possible that I’ve explained things somewhat incorrectly above (though I doubt I could do worse than the news coverage of this ruling). I apologize for any incorrect explanations. Please leave any corrections—or clearer explanations, especially if you’re a lawyer and can share some insight—in the comment section.
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Fred M. Kray
krisdiaz9
Stop BSL 