Maryland Court of Appeals establishes new liability rule in pit bull attack cases

Maryland Court of Appeals establishes new liability rule in pit bull attack cases

ANNAPOLIS–Knowledge that a dog is a pit bull or pit bull cross is sufficient to establish landlord liability if a dog escapes from leased premises,  the Maryland Court of Appeals ruled on April 26,  2012.
The ruling,  in Tracey v. Solesky, originating from a pit bull attack on two boys on April 28,  2007,  has implications for the liability of humane societies and rescue organizations as well.  If an inadequately controlled pit bull injures or kills someone, “In that case a plaintiff has established a prima facie case of negligence,”  wrote Judge Dale R. Cathell for the 4-3 majority.  “When an attack involves pit bulls,  it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.”
Assenting were Chief Judge Robert M. Bell,  Judge Sally D. Adkins,  and Judge Alan M. Wilner.  Wilner and Cathell,  both now 75, reached the mandatory retirement age in 2007, but continue to serve on the Maryland Court of Appeals by special assignment.  Bell,  Wilner, and Cathell also ruled in Matthews v. Amberwood Associates Limited Partnership, Inc.,  the 1998 case that set the previous Maryland standard for landlord liability in attacks by dogs kept by tenants–but Cathell in Matthews v. Amberwood dissented from the majority view.
Described by Maryland Community Newspapers staff writer Alan Brody in 2007 as “one of the high court’s more conservative jurists,”  Cathell in Matthews v. Amberwood opposed  a verdict which restored a jury award of more than $5 million to Shanita L. Matthews,  a 21-year-old mother whose 16-month-old son,  Tevin Williams,  was killed by a pit bull in an East Baltimore apartment on February 9,  1997.
Cathell in Matthews v. Amberwood joined a dissent in which Judge Howard S. Chasanow “wrote that while the landlord took no action,  the mother allowed a young child to play around a dog that most people believe is dangerous,” summarized Baltimore Sun staff writer Andrea F. Siegel.  While a landlord might have safety responsibilities in the common area,  he should not have the same obligation to protect a tenant’s guests in the tenant’s apartment from things under the tenant’s control,”  the dissenting opinion said.
Opened Cathell in Tracey v. Solesky, “Over the last 13 years,  there have been no less than seven instances of serious maulings by pit bulls upon Maryland residents,  resulting in either serious injuries or death,  that have reached the appellate courts of this state. There have been at least two instances of serious maulings by pit bulls that have reached the appellate courts of the District of Columbia since 2005.  Accordingly,  within a hundred mile radius there have been nine serious mauling appellate cases involving pit bulls.”
Cathell summarized the majority view in Matthews v. Amberwood without mentioning his previous dissent from the verdict that “because the landlord’s employees had reported [the killer pit bull’s] aggressiveness and viciousness on prior occasions to management personnel,  that knowledge was imputed to the landlord,”  and that “because the landlord had the right not to renew the lease or to remove the pit bull under a ‘no pets’ provision in the lease, he could be held liable.”
Tracey v. Solesky victim Dominic Solesky “initially sustained life threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to address his injuries,” Cathell recounted.  “He spent seventeen days in the hospital,  during which time he underwent additional surgeries,  and then spent a year in rehabilitation.”
Solesky’s father,  Anthony Solesky, recalled the ordeal in an online memoir entitled Dangerous By Default <http://www.scribd.com/doc/27983921/Dangerous-by-Default-Extreme-Breeds-by-Anthony-Solesky>.
Unable to recover medical expenses from the tenant whose pit bull attacked Dominic Solesky,  the Solesky family sued his landlord, Dorothy M. Tracey.  The initial trial judge dismissed the case without hearing the defense, holding,  Cathell wrote,  that “the evidence was insufficient to permit the issue of common law negligence to be presented to the jury.  On the state of the common law relating to dog attacks in existence at that time,  the trial court was correct.  The plaintiff took an appeal to the Court of Special Appeals and that court reversed the trial court,  finding that the evidence had been sufficient to create a valid jury issue.” The reversal was then brought before the Court of Appeals.  “Appellant,  the landlord,  presented several questions in her brief before this Court,”  Cathell continued,  of which the first question was,  “Is the harboring of American Staffordshire Terriers (more commonly known as ‘pit bulls’) by tenants an inherently dangerous activity for which landlords may be held strictly liable?”

Strict liability standard

Wrote Cathell for the court,  “We answer appellant’s first question in the affirmative and establish in this case,  and prospectively,  a strict liability standard in respect to the owning,  harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles that were previously applicable to attacks by such dogs. We shall direct the Court of Special Appeals to reverse the trial court and send this case back to that court.
“We are modifying the Maryland common law of liability,”  Cathell emphasized,  “as it relates to attacks by pit bull and cross-bred pit bull dogs against humans.  With the standard we establish today (which is to be applied in this case on remand),  when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull (as both the owner and landlord did in this case),  or should have had such knowledge, a prima facie case is established…Pit bulls and cross-bred pit bulls are inherently dangerousŠIndeed, it has been judicially noted that pit bull dogs ‘bite to kill without signal,'”  in the 1986 Pennsylvania case Starkey v. Township of Chester,  “and are selectively bred to have 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.”
Noted Cathell,  citing ANIMAL PEOPLE data,  “Pit bulls end up in animal shelters at a much larger ratio than their overall ratio within the total dog population.”
The dissenting opinion was written by Judge Clayton Greene Jr.,   also representing Judges Glenn T. Harrell and Mary Ellen Barbera. Greene et al objected that in previous cases, “The breed of the dog,  standing alone,  has never been considered a sufficient substitute for proof that a particular dog was dangerous or had a violent nature.
“Under the new rule announced today,” the dissent continued,  “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. 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.  As a result of the majority opinion, it is unclear as to what standard should be applied prospectively to owners and landlords for the liability of other breeds of dogs kept on the premises.”

Dissent misstated history

Greene et al further objected that “The media has demonized pit bulls as gruesome fighting dogs and has not revealed the long history of pit bulls as family dogs with passive behaviorsŠin the early twentieth century,”  as claimed by Best Friends Animal Society literature.
Greene et al overlooked that this alleged history is refuted by the historical record.
In truth,  explains Dogsbite.org founder Colleen Lynn,  pit bulls were popularized by dogfighter John P. Colby.  In 1909 one of Colby’s dogs killed his two-year-old nephew,  Bert Colby Leadbetter.
“Prior to Colby’s breeding program, 1889-1941,”  Lynn details at<http://blog.dogsbite.org/2010/05/1909-fatality-john-p-colbys-fighting.html>, “breeders and fanciers of the ‘pit dog’ were a tight group.  According to a July 1994 issue of the Registrar for International Sportsman, ‘Colby broke this long-held tradition by offering stud services and pit bull puppies to the common man.’  The Sportsman article also notes that Colby was a charter member of the Staffordshire Club of America and backed them in ‘forcing the breed’s acceptance’ into the registry of the American Kennel Club.  In 1936,  the AKC accepted the breed but only under the name ‘Staffordshire.’
“Colby’s ‘Famous Fighting Dogs,’  as advertised in the January 1918 Dog Fancier magazine,  were bred to finish a fight or die trying.  Two of Colby’s sons later memorialized the famed dogs in books,”  Lynn notes.  “In 1936, Joseph Colby wrote American Pit Bull Terrier, and in 1997 Louis Colby coauthored  Colby’s Book of the American Pit Bull Terrier,  with Dianne Jessup.”