One of the most highly commented blog posts I have had here was when the Maryland Court of Appeals decided Tracey v. Solesky, one of the rare appellate opinions that seemed to make everyone mad. Tracy carved out a pit bull exception and make pit bull owners pretty much strictly liable.
Everything, in this case, was goofy. The court even came back with an amended opinion – how often does that happen? – to say that mixed breeds are not strictly liable which, theoretically, would make the key to the case the tracing of the dog’s bloodlines.
Pit bull lovers and owners demanded that the Internet be shut down. Their passion – and their statistics – forced me to do something rare on the Internet: change my opinion in midstream. Whoever said screaming at someone on the Internet can’t change hearts and minds?
This passion pushed the Maryland Senate last week to unanimously pass a bill that eliminated breed distinctions. Which, is bad news for victims of pit bull attacks (and, let’s face it, plaintiffs’ lawyers). The Senate bill throws a bone — literally no pun originally intended until after I wrote it — to victims by creating strict liability for canines who attack while running at large. But, let’s be honest, that is not most pit bull attacks. About 70% of dog bites occur on the owner’s property.
The one thing that struck me about the anti- Tracey opinion zealots is that they rarely opposed strict liability on dogs. There seemed to be some receptivity to the idea that the problem in dog bite cases is not bad dogs but irresponsible dog owners.
The Senate bill does not come close to making that leap. The Senate bill is not a “one bite rule” but requires that a dog has shown a past propensity for violence, such as aggressive behavior. What is aggressive behavior that stops short of a bite? Ah, the proposed law would make judges and juries try to figure that one out. But the good news is that this is nothing new. This law just codifies what has always been the law.
In case anyone is wondering, I believe the bill will be prospective. So, assuming this bill passes and it will, there will be a period of strict liability for pit bulls between the Tracey opinion and this new law.
Random Opinion I’ll Deny I Ever Had Let me say something now that I believe that goes against my interests as a plaintiffs’ lawyer: I don’t see the wisdom in putting the landlords on the hook in the vast majority of these cases. It has a chilling impact on dog ownership which means more dogs being murdered at the pound. Moreover, they are rarely negligently responsible for the harm that occurs. Hopefully, no one can read this with the line through it.
Winners in New Bill
- People who decry breed discrimination against pit bulls because the law would eradicate the distinction.
- Pit bulls. The end of legalized dog discrimination. I have to think this will help their overall self-esteem.
- People bitten by dogs at large. These are certainly the most innocent victims, at least in a sense.
Losers with New Bill
- Victims of pit bull attacks. Proving your case will get a lot harder.
- Plaintiff’s lawyers. Let’s admit open season on pit bulls with a strict liability rule had far greater upside than getting strict liability for dogs who, at large, bite frequnetly.