In a April 26, 2012 decision[1]which has gotten attention from around the country on both sides of the issue, the Court of Appeals of Maryland has set a dramatic precedent in the world of dog bite litigation by finding that as a matter of law if an owner or a landlord knows or has reason to know that a dog is a “pit bull” or “cross-bred pit bull”, such owner is strictly liable for the actions of the dog and a plaintiff can establish a prima faciacase of negligence without first proving that the dog was dangerous or had a prior vicious propensity, the current standard followed by the majority of states, including New York.
The Court in overturning centuries of common law jurisprudence, held, seemingly with no evidence in the record before it that “[b]ecause of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous”.
Seemingly writing the decision with a result driven agenda and citing cases from every facet of dog litigation, including some with no relevance to proof[2] of instances in which a pit bull type dog has been involved in a dog bite and citing from literature, both scientific and non-scientific (mostly non) the majority of the court creates a new liability standard for the State of Maryland which is troublesome for dogs owners, landlords, municipalities and animal rescues.
The three judge dissent in calling the opinion of the majority “unenlightening” and “unworkable” correctly (in my opinion) points out the fundamental flaws in the decision of the majority. First, there is no definitive test or percentage of “pit bull” ancestry set by the court to allow anyone to determine what is a “pit bull” or “cross breed pit bull”. Secondly, what is a “cross-breed”? The minority recognizes this and correctly utilizes the term “mixed breed” which is any dog with a mixed genetic heritage[3]. Third, the minority points out that the new rule is grounded solely in the unsupported perceptions of the majority about a particular breed of dog, rather than upon properly adjudicated facts showing that the responsible party possessed knowledge of the dog’s vicious propensities. The minority finds that the majority has deliberately transformed a factual question into a legal one in order to create liability and that the decision of the majority is clearly and unfortunately result driven jurisprudence and further accuses the majority of legislating from the bench.
The minority scathingly points out what I suspected to be true as I first read the majority opinion; that there was no expert or factual basis within the record before the court to support a factual finding that pit bulls are inherently dangerous. The minority goes on to state that “[s]uccumbing to the allure of bad facts leads inevitably to the development of bad law”.
The minority points to the inequitable and inevitable conclusion that any other dog, no matter how vicious would be judged by a different standard in imposing liability. This raises an issue regarding the standards to be applied to all other breeds of dogs and the slippery slope which surely will result.
As of the writing of this article it seems that legislation will soon be introduced in Maryland to nullify the court’s decision.
[1] Tracey v. Solesky, Opinion No. 53
[2] Cases include an opinion by the Florida Supreme Court on the use of a pit bull image in attorney advertising.
[3] The minority correctly notes that there are currently over 25 breeds of dog which are commonly mistaken for “pit bulls” and further chastises the majority for ignoring this evidence and relying upon an assumption that all “pit bulls” are inherently dangerous. The author would also note that there is no formal breed of dog called a “pit bull”, such a generalization on part of the majority is indicative of the ignorance of the court as to the genetic history of the very animals that they seek to single out for no reason other than their genetic makeup.
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