Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals

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.

Author: Heidi Meinzer

Attorney and Animal Lover, not necessarily in that order

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

  1. Great commentary. I find it hard to fathom that MD would initiate such a law, given all that is known and understood about what you just said – the inefficacy of breed specific legislation and the need to focus on owner responsibility. It just doesn’t make sense. And yes – I’m so very thankful that Virginians have a much better handle on this critical issue. I hope we keep progressing down a path of smart animal management

  2. Backward thinking. Sad, but it doesn’t surprise me too much. Maryland is one of those notorious Pit Bull Breed Ban states:

    P.S. I shared this on the National Pit Bull Awareness Campaign page:

  3. This entire commentary misses completely the most essential point of law that was of issue in Solesky: not owner responsibility, but landlord responsibility. The Solesky family was unable to recover damages from the indigent owner of the pit bull who attacked their son, so they sued the landlord. At issue was whether the landlord was culpable for creating or permitting the conditions that led to the two pit bull attacks, the second of which injured the Solesky child. The central question was whether a risk existed that the landlord should have recognized and addressed. In a previous case (Matthews, 1998) the same court (including three of the same judges) ruled that a landlord was not responsible for a fatal pit bull attack that occurred in a nominally “no pets” building, even though the landlord had been advised of the presence of the pit bull, because the dog was inside an apartment, not in a public part of the building, and the mother of the child who was killed took the child into the apartment despite knowing that the dog was there. The focal point of the Solesky ruling was to clarify that the Matthews ruling was not meant to be a blanket exoneration of landlords for anything that a dangerous dog on their property might do, including if the dog leaves the property to attack an unawares passer-by. The portion of the Solesky ruling pertaining specifically to pit bulls had to do with when a landlord should perceive a potential significant risk. A pit bull who is able to escape a property to run at large clearly presents a much greater actuarial risk (3.3% of the dog population, approximately half of the fatalities and disfigurements) than about 95% of the rest of the dog population.

    • Thanks for commenting, Merritt. You are absolutely right that the Solesky case revolves around landlord responsibility, which was going to be part of my next post on this case — along with a discussion of how insurance companies are reacting to the Solesky opinion. Unfortunately, I don’t think the Solesky case is going to be read as narrowly as you indicate — particularly because the quote that I pulled for this post comes straight from what the court put as the holding at the very beginning of its opinion.

    • An unneutered, unsocialized, territorial Malamute belonging to an irresponsible person who is able to escape its tiny backyard pen where is spends most of its miserable life is no less likely to bite someone than an unneutered, unsocialized, territorial “pitbull” belonging to an irresponsible person in the same conditions.

      Furthermore, there is no way to accurately determine what percentage of the country’s dog population are “pitbulls.” A “pitbull” can be anything from a Staffordshire Terrier to an American Bulldog (as the dogs in this case were originally identified) to a lab/boxer mix. Even if it were only one breed, there is no way to measure (to the first decimal place no less! How official!) the exact population of a breed. Licensing is not strictly enforced in most areas in the US, and even if it were, the only dogs one could positively determine to be of one specific breed or another would be the very small percentage of dogs holding pedigrees or DNA test results.

      To claim that attacks perpetrated by “pitbulls” are more often more severe or account for more fatalities is also misguided. The CDC no longer collects breed information in relation to fatal dog attacks because it’s not only irrelevant, but breed identification is highly subjective and meaningless. The studies that claim that “pitbulls” are more likely to kill are basing their numbers on media reports which, I hope it is evidently clear, are completely skewed and frequently wrong.

      Also, I’m curious what the remaining 1.7% of the dog population is that you think is even more dangerous than “pitbulls?” Chihuahuas?

  4. Well said Heidi. This court opinion could have wide-sweeping devastating effects throughout Maryland as well as in other states who accept the court’s reasoning. This is a very sad day for thousands of family-friendly bully breeds who may get caught up in this nonsense. Existing law thoroughly covered this issue and it was unncessary. Thank you for sharing your insights with us.

  5. Pingback: Follow up on the Solesky Ruling | Companion Animal Law Blog

  6. This is a sad day. yet another broad stroke law focusing on a breed that most people could not accurately pick out of a line up if they tried. On the news you often have the label “Pit Bull attack” before any facts about the animal in question are out and once the facts are out, it could be any other dog but the damage is already done. In shelters across America dogs are often labeled in correctly because they “look like a pit” and that is because they have a large square head. So a dog may forever be labeled as a pit mix when in reality this dog is nothing more than a Lab or hound mix. Because both have that characteristic but no one wants to admit that sometimes a Lab mix could be mistaken for a pit mix.
    I only hope that the U.S. doesn’t go the way of Australia and make BSL a national initiative. They are a good breed that is getting a bad wrap because of a lot of really stupid people.

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