Maryland's Pit Bull Ruling Puts Landlords, Insurers In the Doghouse

Key Points:

• Maryland's highest court concludes that pit bulls and cross-bred pit bulls are "inherently dangerous" animals.
• Under new standard, owners of pit bulls, landlords and property owners are strictly liable for the victim's injuries, regardless of whether the dog has previously exhibited vicious behavior.
• The new breed-specific strict liability standard is on hold pending disposition of a motion for reconsideration, and the Maryland General Assembly is evaluating the ruling's impact.

Property owners, landlords and insurers are still measuring the fallout from the April 26, 2012, decision by Maryland's Court of Appeals that declared American Staffordshire Terriers – more commonly known as "pit bulls" and so-called cross-bred pit bulls – "inherently dangerous" animals. Under the court's ruling, both owners and "other person(s) who [have] the right to control the pit bull's presence on the subject premises" are now strictly liable for any damages caused to a plaintiff who is attacked by a pit bull or cross-bred pit bull, and the court specifically defined such "other person(s)" to include landlords and property owners who knowingly rent to owners of such breeds. The court's implementation of this breed-specific strict liability standard, which carved pit bulls and mixed-breed pit bulls out of Maryland's "one bite" rule, has left landlords and property owners – and the companies who insure them – scratching their heads as to how the court's determination will affect their tenants, their properties and their insurance coverage.

The court's holding in Tracey v. Solesky, -- A.3d ---, 2012 WL 1432263 (Md. 2012), arose from two attacks on young children by the same dog in a single afternoon. Clifford, the pit bull involved in the attacks, was kept in what the court described as "an obviously inadequate small pen," consisting of a four-foot high enclosure with no overhanging ledge and no overhead cover. On the day of the attacks, Clifford jumped out of his pen and, shortly after his escape, attacked and injured Scotty Mason. Clifford's owner restrained the dog and put him back into his pen, but Clifford promptly jumped back out again. Clifford then mauled 10-year-old Dominic Solesky, causing life-threatening injuries. Dominic underwent five hours of surgery at Johns Hopkins Hospital, including procedures to repair his severed femoral artery. Dominic spent 17 days in the hospital, underwent numerous additional surgical procedures and subsequently spent one year in rehabilitation. Following the attacks, Dominic's parents filed suit against Clifford's owners and their landlord in the Circuit Court for Baltimore County. As against the landlord, the Soleskys made claims for negligence and strict liability.

The case proceeded to jury trial, and at the close of the Soleskys' case, the landlord moved for judgment, noting that under Maryland law, a landlord will be liable for injuries caused by a tenant's dog if: (1) the landlord is aware that the dog has exhibited vicious tendencies; and (2) the landlord has had some opportunity to exert control over the presence of the animal on the property. The trial court concluded that the Soleskys had failed to present evidence demonstrating that the landlord was on notice of Clifford's vicious nature or that the landlord retained control over the tenant's use of the property and, thus, entered judgment in favor of the landlord. The Soleskys appealed the trial court's ruling to the Court of Special Appeals, who reversed and remanded, concluding that the evidence presented had been sufficient to create a genuine jury question as to the extent of the landlord's knowledge of Clifford's dangerous tendencies. The landlord thereafter appealed to the Court of Appeals of Maryland.

In its opinion, the Court of Appeals altered the landscape of Maryland common law and established a breed-specific strict liability standard, holding that "when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull… or should have had such knowledge, a prima facie case is established… It is not necessary that the landlord (or the pit bull's owner) have actual knowledge that the specific pit bull involved is dangerous." The court justified its decision by pointing out the "aggressive and vicious nature" of pit bulls and the breed's "capability to inflict serious and sometimes fatal injuries." The court acknowledged that not every pit bull or cross-bred pit bull is vicious and recognized that such dogs can be "well-mannered pets in respect to their own human families." However, the court indicated that, in spite of the presence of such gentle animals, the pit bull breed in general is responsible for a disproportionate share of attacks, as well as for the more serious injuries caused by such attacks, as compared to the rate of attacks and types of injuries across the spectrum of all dog breeds. Moreover, the court pointed out that, tragically, pit bulls can, and often do, attack and injure – and sometimes kill – their owners or members of their human families.

The Court of Appeals' implementation of a breed-specific strict liability standard was not without its detractors. In a lengthy dissent, three members of the Court of Appeals systematically pointed out the questions left unanswered by the majority. Specifically, the dissent notes that the majority opinion declines to advise how much "pit bull" there must be in a dog in order to bring it within the ambit of the strict liability standard, and does not explain how a party would determine that a particular dog is "part pit bull." The dissent complained that the Soleskys had produced no expert testimony or evidence to support the proposition that pit bulls or mixed-breed pit bulls are inherently dangerous. The dissent concluded by disagreeing with what it construed as the majority's "focus on the breed of the dog involved, rather than on the behavior of the dog, the owner and the landlord," stating that such breed-specific standards are best addressed by the Maryland General Assembly rather than determined by judicial resolution.

The majority's decision has caused immediate concern among landlords, property managers and insurers as they try to make sense of the court's implementation of the new breed-specific strict liability standard. Landlords whose leases currently permit owners to harbor pit bull or mixed-breed pit bulls question what, if anything, they can do to protect themselves from liability while allowing the animals to remain on the property for the duration of the tenant's lease. Some are exploring whether they can require dog-owning tenants to obtain "pet insurance." Property owners are concerned that insurance companies, fearful of potentially devastating verdicts, will raise homeowner insurance rates dramatically – or will decline to provide insurance coverage to property owners who allow their tenants to harbor dogs.

Following the court's ruling, the Tracey landlord's homeowners insurance company filed a Motion for Reconsideration. In accordance with Maryland Rule 8-605(d), the "pit bull law" is effectively on hold pending the court's disposition of this motion. In the meantime, a task force of Maryland lawmakers is reviewing the court's decision in an effort to evaluate the effects of the court's ruling on tenants, landlords and insurers and to consider legislation which would render all dog owners strictly liable for injuries caused by dog bites, regardless of breed. Thus, the breed-specific strict liability standard set forth in Tracey v. Solesky is not yet in effect, and it remains to be seen whether the General Assembly will legislatively temper the Tracey ruling. Regardless, landlords and property owners must remain cognizant of this fundamental shift in dog-bite liability and tread carefully when leasing property to tenants with pit bulls or mixed-breed pit bulls, as they may find themselves absolutely liable for injuries in the event a dog, even one with no history of aggression, attacks someone. Similarly, companies writing homeowners coverage in Maryland should monitor both the court's disposition of the Motion for Reconsideration and any actions taken by the General Assembly to alter the current status of Maryland's dog-bite law. Whether the strict liability standard is ultimately limited to pit bulls and mixed-breed pit bulls or implemented across all breeds, the exposure to landlords and property owners will have a palpable impact on homeowners insurance carriers and their obligations to defend and indemnify claims arising from dog attacks.

*Lauren, an associate in our Harrisburg, Pennsylvania, office, is licensed to practice in Pennsylvania and Maryland. She can be reached at 717.651.3703 or lmburnette@mdwcg.com.

Defense Digest, Vol. 18, No. 3, September 2012