The Maryland General Assembly’s Task Force appointed to address Tracey v. Solesky are working on a bill, and the General Assembly may have the opportunity to vote on the bill during an upcoming special session this month. The bill is expected to impose liability on all dog owners, regardless of breed, but revert to the common law for landlords, imposing liability only if the landlord knows of the dog’s vicious propensities.
UPDATE (8/6/12): The American Bar Association’s House of Delegates just issued Resolution 100, promoting breed neutral legislation and proposing the elimination of breed bans and breed specific legislation.
Tune in tonight at 8:00 PM on Pit Bulletin Legal News Radio for an in-depth discussion of the Solesky decision, and what impact it is having on rescues and insurance companies. If you can’t make it tonight, the show will be archived so you can listen to it later.
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.
Hearty thanks to Operation Socialization for offering me a great guest blogger opportunity! Operation Socialization is a network of professional dog trainers and businesses. Operation Socialization’s vision is to raise awareness about the importance of puppy socialization and to provide the humans on the other end of the leash with education and resources to give puppies the best possible start in life.
We’ve all seen signs that say “No Dogs Allowed.” But “No Kids Allowed”? That’s exactly what is about to happen in Arlington County’s dog parks. Arlington County plans to ban kids under 8, and require an adult to accompany kids 8 to 14. Some find the ban unnecessary, while others find this a very appropriate ending to National Dog Bite Prevention Week.
If you would like to be heard, you can contact the Arlington County Department of Parks and Recreations Division Chief through the County’s Contact Us page or at (703) 228-6523 or -6525. And feel free to weigh in on the issue here!
First, Saginaw will add a leash law and prohibit tethering in most circumstances. Owners would be required to keep dogs on leash. Dogs could not be chained or tethered outside of the dogs’ “kennel, pen or fenced yard,” unless someone has physical control of a leash. An inanimate object such as a tree, post or building will not cut it. The requirement of physical control indicates that shock collars will not count in Saginaw. This is a great step – with the caveat that the law should be clarified to state that a dog cannot be chained or tethered even if the dog is on the owner’s property.
Second, all dogs would need to be securely confined indoors or in adequately lighted and ventilated kennels. If a dog is confined indoors, the dog would not be able to exit on the dog’s own volition. Presumably, that means no more doggie doors in Saginaw. And, thankfully, no more dogs left outside unattended.
Third, Saginaw residents would be limited to three dogs per household. This three-dog limit would not apply to animal care and control organizations, rescues, registered foster homes, and certain service dog and hunting dog breeders. Commercial breeders and brokers would be required to register with the City Clerk and obtain a business license.
Officials in Saginaw did not stop at overhauling Section 94.04. They are proposing a second ordinance targeting “dangerous dogs.” Unfortunately, this ordinance completely misses the mark and has virtually nothing to do with owner responsibility.
This ordinance will require the owners of “dangerous dogs” to register the dogs, and adhere to leash and confinement standards. The owners will also have to pay a $20 registration fee and obtain and display signs indicating the presence of a dangerous dog on their property. Failure to comply with the ordinance would result in civil fines.
The heart of problem is the proposed definition of a “dangerous dog” as any dog:
with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
that attacks, attempts to attack or that, by its actions, gives indication that it is liable to attack a human being or other domestic animal one or more times without provocation; or
of a breed that appears consistently in the top five (5) of the breeds on credible, analytical listings of “Most Dangerous Dogs” as verified and supplemented by local data and records for Saginaw County, including mixes.
is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
is intact; and
has a reckless, irresponsible owner.
Notice that breed is not one of these factors. With its recent overhaul of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) agrees that the focus should be on the individual dog and not breed. The ADA already condones the refusal to provide access to a service dog if an individual dog shows specific signs of aggression. But the DOJ unequivocally refuses to bow to jurisdictions with breed bans. This is leading to a nasty battle in Denver, where officials are refusing to exempt service dogs in Denver’s breed ban. At least Saginaw was not so stubborn, exempting service dogs from its dangerous dog ordinance.
No canine or canine crossbreed shall be found to be a dangerous dog or vicious dog solely because it is a particular breed, nor is the ownership of a particular breed of canine or canine crossbreed prohibited.
With Saginaw’s proposed leash, confinement and supervision requirements and a limit on the number of dogs a household can have, Saginaw will accomplish a great deal to increase owner responsibility and decrease the number of resident dogs. If Saginaw wants more effective laws, research shows that focus on the spay/neuter issue rather than breed will go further to reduce the number of dog bites.
Laws requiring leashes and spay/neuter programs are not the only way to get at owner responsibility. Education is also necessary. The more we learn about animal behavior, the better. At last Friday’s Mid-Atlantic Animal Law Symposium in Baltimore, Maryland, one participate raised the issue of humane education in schools. If we could emphasize just three areas, we could do a great deal to better the bond between dogs and owners, and thereby decrease the number of dog bites:
Never leave dogs unsupervised with children. So many dog bites are to children. Simple supervision, teaching a child not to approach a dog unless the child asks the owner for permission, and showing the child how to pet the dog appropriate would go far to decrease the number of dog bites. Dogs & Storks has wonderful information about how to prepare the family dog for a new baby, and lots of other helpful information regarding dogs and children.
The Saginaw City Council will introduce its proposed ordinances on April 18, and the ordinances are slated to be enacted May 9 and become effective May 19. If Saginaw’s real purpose is to increase owner responsibility and decrease the number of dog bites, I encourage the Council to adopt the ordinance expanding Section 94.04, but ditch its dangerous dog ordinance.
The Institute says that most homeowner insurance policies provide $100,000 to $300,000 in coverage, and typically include dog bite liability. The Institute quoted the Centers for Disease Control and Prevention for statistics showing that dogs bite more than 4.7 million people per year, causing 800,000 people to seek medical assistance. 386,000 require treatment in an emergency department, and approximately 16 die. Because more than half of dog bites occur on the owner’s property, and more than one third of all homeowner liability claims are dog bite claims, insurers have started taking notice.
Dog bite liability generally arises in three ways. First, a state may have a dog bite statute making the owner automatically liable for any unprovoked injury or property damage caused by a pet dog. The District of Columbia has such a “strict liability” statute for the first bite. Second, an owner may be liable for injury caused by his or her dog only if the owner knew the dog had a propensity to bite. This is commonly called the “one free bite” rule, and is followed in Maryland and Virginia. [For a very comprehensive analysis of dog bite liability and a breakdown of which states have dog bite statutes and which states follow the “one free bite” rule, take a look at Kenneth Phillips’ Dog Bite Law site.] Third, the owner may be liable for negligence for injury caused by the owner’s having been unreasonably careless in handling the dog.
According to the Institute, most insurers provide coverage to households with dogs. However, some insurers have started to require liability waivers for dog bites. Other insurers charge extra for or exclude certain “biting breeds” (a term used by the Institute in this recent article) such as Rottweilers and pit bulls. [For a list of other breeds commonly targeted by insurers, see the post Dog Breeds Can Affect Home Insurance Rates on e-wisdom.com.] Some insurers will provide coverage if the owner takes behavior modification classes or “if the dog is restrained with a muzzle, chain or cage,” according to the Institute. Still others are refusing to insure dog owners at all.
As justification for the insurers’ actions, the Institute cites data that shows an increase in 2009 in the number, value and average cost of dog bite claims. From 2008 to 2009, the number of claims have risen 4.8%, from 15,823 to 16,586. In that same time frame, the value of claims has risen 6.4%, from $387 million to $412 million. The average cost of dog bite claims has risen 1.5%, from $24,461 in 2008 to $24,840 in 2009.
Probably the most contentious statement by the Institute is this:
Insurers generally oppose legislation that would require changes to their dog breed practices. They contend that government public health studies and the industry’s claims histories show that some breeds are more dangerous than others and are higher loss risks.
This statement is in direct contrast to the approach taken by the Department of Justice, which has recently modified its definition of the term “service animal” in the Americans with Disabilities Act. The DOJ refused to cave to local efforts in banning particular breeds, maintaining its position that a service dog may be of any breed, and can be excluded from access based solely on that particular dog’s actual and individual behavior and history. [For more about the new definition of “service animal,” refer to my post, Watch for these Changes to the ADA Definition of Service Animal.] Notably, at least two states – Pennsylvania and Michigan – forbid breed discrimination, with laws prohibiting insurers from cancelling or denying coverage to owners of particular dog breeds.
The Institute also said: “It is unlikely that insurers will begin offering specialty insurance just for dog bites since the cost of such polices would be prohibitive.” I find this very disconcerting in the face of laws such as Virginia’s dangerous dog statute, enacted in 2008. Virginia’s dangerous dog statute requires the owner of a dog declared by a court to be “dangerous” to carry maintain a surety bond or have an insurance policy of at least $100,000. Even more frustrating is the fact that Virginia’s dangerous dog statute has no requirement that a dog bite to a person be of any certain level of severity. I fear that the requirement of a $100,000 bond or policy will prove to be so onerous that some owners of dangerous dogs – even ones who inflicted very minor injuries to a person – may feel they have no choice but to turn to euthanasia because they cannot afford the cost of complying with the statute.