Sometimes Bright Line Rules Just Aren’t the Answer: The Problem with Tracey v. Solesky

Bright line rules have their place. Society often benefits from clear, objective and unambiguous rules, when those rules produce even-handed and predictable results and  have very little risk of creating harsh or unjust results. Take speed limits, voting ages, and Miranda warnings as examples.

But sometimes life is not black and white. Bright line rules are inappropriate and dangerous tools any time the issues turn on a variety circumstances and there is a risk of sweeping up innocent activity or individuals. Then a balancing test, or case-by-case analysis, is much more appropriate.

Today, the Court of Appeals of Maryland opted for a bright line rule in exactly the kind of case where a bright line rule is inappropriate. In Tracey v. Solesky, the Court ruled:

Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.

Such a bright line rule – pit bulls are per se dangerous – is misguided. Don’t get me wrong. I in no way condone what happened in this case. The dog was left in a small pen, escaped, and attacked and seriously injured a child. The owner put the dog back in the same pen, and the dog escaped yet again, and mauled another child, causing life threatening injuries.

The dog’s breed is not the main issue in this case. The much larger issue is the fact that the owner was completely irresponsible.

There was no reason for the Court to make new law in this case. The defendant could have tried to invoke the “one free bite” rule. But, at best, the “one free bite” rule would only help him escape civil liability for money damages as to the first child. He was certainly on notice of the dog’s propensity when the second child was attacked. Additionally, the “one free bite” rule would not impede a dangerous dog proceeding, and a well-crafted dangerous dog statute can provide restitution to victims without the hassle of a civil law suit.

The most frustrating part of this ruling is that there are many pit bull and pit bull mix owners who are highly responsible and who will get swept up in this bright line rule. Likewise, the ruling will not affect the highly irresponsible owners of dogs who are not pit bulls or pit bull mixes. Dare I even mention the issue of how a court is to determine whether a dog is a pit bull or pit bull mix.

Courts and legislators should focus on owner responsibility, not breed. Fortunately, Virginia’s dangerous dog statute makes it clear that breed alone is not a reason to declare a dog to be dangerous. I hope Virginia keeps its focus on owner responsibility and does not choose to follow the path of neighboring Maryland in this regard.

The Burden of Bailments: Lohre v. Posh Maids

On August 17, 2011, Robin Lohre asked Posh Maids to clean her home. During the several hours it would take to clean the house, Lohre needed to run errands. Lohre made sure with the employee that her dog, Ruthie, could stay in the house during the cleaning. Lohre asked the employee not to let Ruthie out of the house, and gave careful instructions of how to go in and out of the mudroom if she had to go outside. Lohre then went to run errands with her six-year-old daughter.

Posh Maids called Lohre to tell her they were able to finish the cleaning a little ahead of schedule because additional employees arrived. Lohre and her daughter came home to find Ruthie dead under the dining room table. Lohre called Posh Maids, and was told that Ruthie was hit by a car, ran back home and was “whimpering a little.”

Lohre sued Posh Maids for negligence and emotional distress for failing to inform her about Ruthie’s accident and leaving Ruthie without veterinary care. This week, Lohre secured a judgment of more than $65,000 in a precedent-setting law suit brought by The Animal Law Center in Colorado.

When Lohre left Ruthie in Posh Maids’ care, this arguably created a bailment – much like when you leave your car in a garage or you check your coat at the theater. But there is one major difference – unlike your car or coat, companion animals are living beings who require care, including emergency veterinary care.

People entrust their companions with groomers, boarders and doggie daycares every day. If you are entrusted with others’ animals, you could face a scenario similar to Posh Maids. Take a look at the following questions and answers in order to prepare yourself in the event of an emergency.

Question #1: Does the relationship between you and the animal amount to a “bailment”?

A “bailment” arises when a person temporarily gives control over or possession of personal property to another for a designated and agreed upon purpose. If you are providing services for a companion animal and the animals’ owner leaves the animal in your care, you are involved in a bailment.

Question #2: To what degree are you responsible for an animal left in your care?

In Virginia, “owners” are tasked with providing adequate care to companion animals under Virginia Code Section 3.2-6503. This involves providing adequate food, water, shelter, space, exercise, care and veterinary care. The definition of “owner” is quite broad – including “any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.”

In addition, Virginia Code Section 3.2-6518(A) specifically holds groomers and boarding establishments responsible for the care provisions of Section 3.2-6503. Failure to care for the animal properly is a Class 1 misdemeanor, punishable by up to twelve months in jail and a $2500 fine – much steeper than the $250 fine an owner faces for the same violation.

Question #3: If an emergency arises, are you responsible for getting the animal to the vet?

Yes. Plain and simple. The answer to this question is undoubtedly yes. You may or may not be liable for the vet bill, but don’t let that hold you back from getting immediate veterinary care for the animal. Section 3.2-6518 also specifies that groomers and boarding establishments must provide emergency veterinary care in the event of illness or injury.

Question #4: Are you also responsible for the vet bill?

Generally speaking, bailees, such as groomers and boarders, are liable for their own negligence. Section 3.2-6518 clarifies that the bailor/owner is liable for emergency veterinary costs, unless the animal sustained injury because the groomer or boarding establishment accidentally or intentionally failed to care for the animal adequately, or if the injury resulted from the groomer’s or boarding establishment’s actions. That code section does not require the groomer or boarder pay for treatment of injuries caused by the animal’s self-mutilation.

Question #5: Is there anything else I need to know?

If you are a Virginia boarding establishment or groomer, make sure your business and your contracts are in full compliance with the care and very specific notice requirements imposed in Section 3.2-6518 and Section 3.2-6519. If you are unfamiliar with these notice requirements, please take a look at this earlier post.

To fully protect your business and any animals in your care, make sure that you have a clear policy for your employees to follow, and an open line of communication with your clients and local veterinarians in the event of an emergency.

The Posh Maids case is a good reminder of your responsibilities and liability as a bailee. Equally significant is the fact that this case allowed damages for negligence based on the loss of a companion animal. Virginia law still does not allow damages for negligence, but there may be a door open for intentional torts or gross negligence. Stay posted for recent developments on this front in Maryland.

Update on Virginia’s 2012 Legislative Session

As well as this legislative session started, not much positive happened for animals this year.  Here’s a rundown of what the General Assembly did this year:

HB 95 (Bear Hound Training):  Even though bear hound training was already allowed during most times of the day, this bill extended the hours of training bear hounds to include 4:00 AM to 10:00 PM.  The Senate  stopped this bill in its tracks last year, but it sailed through the House and the Senate this year and was signed into law by the Governor.

HB 158 (Prohibiting Devocalization):  This is the second time Virginia missed an opportunity to put a stop to the inhumane practice of devocalization. This bill was pushed off until 2013 when it was continued by voice vote in the Agriculture, Chesapeake and Natural Resources Committee.

HB 363 (Companion Animals in Protective Orders):  This bill would have clarified that judges have the ability to include companion animals in protective orders, but it was left in the House Appropriations Committee.

HB 537/SB 305 (Dangerous Dog Registry):  This bill made its way up to the Governor and was signed into law.  It shifts more responsibility to local animal control officers to regulate dangerous dogs, and changed the time to comply with  registration from 10 days to 45 days.

HB 650 (Notice of Euthanasia for Companion Animals):  This bill would require shelters or pounds to give notice to rescues in the position to help out before euthanizing healthy, adoptable companion animals.  This is yet another example of a bill that got stuck in the Agriculture, Chesapeake and Natural Resources Committee.

HB 695/SB 202 (Prohibiting Fox and Coyote Penning):  This bill would have outlawed the cruel blood sport of fox and coyote penning.  I’m very disappointed to say that this bill, like many others, did not make it out of the Agriculture, Chesapeake and Natural Resources Committee.

HB 888 (Allowing Local Anti-Tethering Ordinances):  This bill would have clarified that localities can pass their own anti-tethering ordinances.  No surprises here — yet another bill stuck in the Agriculture, Chesapeake and Natural Resources Committee.

HB 1242/SB 477 (Prohibiting Exotic Animals):  This bill was in response to the tragedy last year in Zanesville, Ohio involving the deaths of numerous exotic animals.  The House continued this bill in the Agriculture, Chesapeake and Natural Resources Committee by voice vote to the 2013 session.  The Senate kicked it to the Agriculture, Conservation and Natural Resources Committee.

SB 359 (TNR):  This bill would declare TNR to be a legal and acceptable practice to control feral cat populations.  It passed the Senate, but got stuck in the Agriculture, Chesapeake and Natural Resources Committee.

SB 610 (Agricultural Animals):  This bill got lots of traction, but fortunately did not become law.  It is still kicking around the Senate Agriculture, Conservation and Natural Resources Committee.  This bill seeks to exclude hunting, working and show dogs from the definition of companion animals, and would throw a great deal more on the shoulders of the State Vet instead of localities and animal control officers.

There’s much work ahead of us to prepare for the 2013 legislative session!  We could especially use help from those of you with delegates in the House Agriculture, Chesapeake and Natural Resources Committee.  If you’re not sure who your delegate is, or whether they are members of that committee, take a look now with the Virginia General Assembly “Who’s My Legislator” site.