Thursday, May 24, 2012

The Common Law of Pit Bulls: Maryland’s Highest Court Imposes Strict Liability Without a Statute

Faced with a gruesome attack and lacking a strict liability statute to apply to the landlord, whose tenants’ dogs were responsible for the attack, the highest court in Maryland determined that the matter could be dealt with by changing the common law.  Thus, there is now common law specific to pit bulls. 

In Tracey v. Solesky, 2012 WL 1432263 (Md. 2012), the Maryland Court of Appeals held, three justices dissenting, that harboring a pit bull was an inherently dangerous activity for which the landlord (Tracey) could be held strictly liable.  The Court noted that pit bull cases have a long history in Maryland and entered into a discussion of that history in order to support its conclusion that strict liability could be imposed as a change in the common law of the state, without a legislative mandate. The problem has become particularly great in the last 13 years when courts have had to deal with “seven instances of serious mauling by pit bulls upon Maryland residents resulting in either serious injuries or death … including the two boys attacked by the pit bull in the present case.”  In a number of cases landlords have been held liable for injuries caused by the pit bulls of tenants. 

Since this is a change in the common law, the law made by judges, it is likely that other high courts in the U.S. will seriously consider arguments that, even where there is no anti-pit bull statute, strict liability may be imposed as to pit bull attacks. 

Pit Bull Attacks in Maryland Courts

As far back as 1916, in Bachman v. Clark, 128 Md. 245, 97 A. 440, a pit bull terrier crossed the street and attacked a ten-year-old boy, seriously injuring him.  A witness picked up a piece of timber and killed the dog with it. 

In Shields v. Wagman, 350 Md. 666, 714 A.2d 881 (1998), a pit bull owned by the operator of an automobile repair business attacked a customer in the shopping center where the repair business was located.  The dog, named Trouble, also attacked another tenant.  Both attacks resulted in serious injuries, the second after the victim had climbed onto the roof of a car in an attempt to escape the pit bull.  The Court of Appeals held the landlord had actual knowledge that Trouble was dangerous and had the right to cause the removal of the pit bull from the premises but failed to do so, and in not so doing, had negligently allowed the attacks to occur. 

Just two months later, in Matthews v. Ameberwood Associates Ltd. LP, Inc., 351 Md. 544, 719 A.2d 119 (1998), a pit bull named Rampage attacked and killed a child in an apartment building.  The Court of Appeals found that because the landlord’s employees had reported Rampage’s aggressiveness and viciousness on prior occasions to management personnel, that knowledge was imputed to the landlord, and because the landlord had the right not to renew the lease or remove the pit bull under a no-pets provision in the lease, he could be held liable. 

In reaching its decision in Matthews, the Court considered the adequacy of a pit bull’s pen and cited a New Mexico case, Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355, which had determined that “extraordinary measures are required for confining American Pit Bull Terriers, such as a six foot chain link fence with an overhanging ledge to keep the dogs from jumping out....”

In Moore v. Myers, 161 Md.App. 349, 868 A.2d 954 (2005), a pit bull chased a twelve-year-old girl into a street where she was run over by an automobile and suffered two broken arms, a broken leg, and a fractured jaw.  Prince Georges County, where the event occurred, had a statute requiring owners of pit bulls to keep them in enclosures or leashed at all times.  The owner’s son, according to the evidence, had sicced the dog on three girls, one of whom was the victim.   

In Ward v. Hartley, 168 Md.App. 209, 895 A.2d 111 (2006), the landlord was sued after the following occurred:

“[A] taxi driver was dispatched to pick up a passenger for transportation to the Kennedy Kreiger Institute. When he knocked on the door to the leased premises, he heard someone tell children not to open the door. He stepped back and at the same time a child opened the door and a pit bull came charging out as he heard someone yell ‘Get the dog.’ He hit the pit bull with rolled-up paper he had in his hand and the pit bull grabbed his foot. He then ran to his cab with the pit bull still holding onto his foot and, with the pit bull still attached, climbed on top of the car. A police car appeared on the scene, and as it did, two boys ran out of the house laughing and pulled the dog off of the cabdriver's foot. The cab driver's foot was severely injured and required surgery…. There was no evidence in the case that the landlord knew that a pit bull was being kept on the premises until he heard about the incident with the cab driver. The Court of Special Appeals, in holding for the landlord, opined: ‘Keeping a pit bull did not violate any covenant of the lease, nor did it violate any law or ordinance. No provision of the lease gave the landlord control over any portion of the rental premises. Thus, appellees had no duty to inspect the premises.’”

Although the landlord avoided liability here, it is unlikely the pit bull owner could have.  It seems he needed some training for his children as well as for his dog. 

The Attack on Dominic Solesky

In the case before the Court of Appeals, Clifford “escaped twice from an obviously inadequate small pen and attacked at least two boys at different times on the same day.”  The second boy was Dominic Solesky, who sustained life-threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to repair his femoral artery.  He spent 17 days in the hospital and underwent additional surgeries, and was in rehabilitation therapy for a year after his release. 

The Court, as mentioned above, established “a strict liability standard in respect to the owning, harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles that were previously applicable to attacks by such dogs.”  The Court acknowledged that it was imposing “breed-specific liability standards,” elaborating as follows:

“We are modifying the Maryland common law of liability as it relates to attacks by pit bull and cross-bred pit bull dogs against humans. With the standard we establish today (which is to be applied in this case on remand), when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull (as both the owner and landlord did in this case) 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. Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous.”

Old Common Law

Since the Court determined to modify prior common law, it entered into a discussion of what law it was changing.  Citing an 1882 case, Goode v. Martin, 57 Md. 606 (1882), the Court had there stated that “to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that the owner had knowledge that he was fierce.”  A presumption that the dogs in the case were fierce and dangerous arose, however, from the fact the defendant kept them tied up during the day, a presumption that made sense in an era long before leash laws.

Looking at Harper, James, and Gray on Torts (3rd ed. 2007), the Maryland Court of Appeals found the following statement in the treatise persuasive:

“It thus appears that one keeps dangerous animals at one’s peril, that is, at strict liability, but otherwise as to animals ‘not dangerous.’  As to the former class, it is no defense that the keeper employed reasonable care, or even a high degree of diligence to prevent their escape.  Liability is independent of any fault on the part of the owner. “

The Court of Appeals discussed its own ability to change the common law, noting that in a case from 1821, State v. Buchanan, 5 H.&J. 317, it had referred to the inherent dynamism of the common law which made it subject to judicial modification in the light of modern circumstances or increased knowledge. 

Common Law of Pit Bulls

The Court of Appeals noted that it had discussed the difference between pit bulls and other breeds in Matthews, where it had stated:

“[T]he foreseeability of harm in the present case was clear. The extreme dangerousness of this breed, as it has evolved today, is well recognized. ‘Pit bulls as a breed are known to be extremely aggressive and have been bred as attack animals.’ Giaculli v. Bright, 584 So.2d 187, 189 (Fla.App.1991). Indeed, it has been judicially noted that pit bull dogs ‘bite to kill without signal’ (Starkey v. Township of Chester, 628 F.Supp. 196, 197 (E.D.Pa.1986)), are selectively bred to have powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds. The ‘Pit Bull's massive canine jaws can crush a victim with up to two thousand pounds (2,000) of pressure per square inch—three times that of a German Sheppard or Doberman Pinscher.’ State v. Peters, 534 So.2d 760, 764 (Fla.App.1988) review denied, 542 So.2d 1334 (Fla.1989).”

The Court noted that after its decision in Matthews, the Journal of the American Veterinary Medical Association published a “special report” stating that:

“From 1979 through 1996, dog attacks resulted in more than 300 dog-bite related fatalities in the United States. Most victims were children. Studies indicate ... that pit bull-type dogs were involved in approximately a third of human ... [fatalities] during the 12 year period from 1981 through 1992 ....”

The same report indicated that, in the 12-year period ending in 1992, almost half of fatalities were caused by Rottweilers, but that in more recent years pit bulls have caused more fatalities than Rottweilers. From 1979 to 1996, pit bulls and Rottweilers accounted for 67% of human dog bite related fatalities.  The AVMA referred to this as indicating a “breed-specific problem with fatalities.” (A 2009 study, Kaye et al., not cited by the court, found in a survey of cases at the Children's Hospital in Philadelphia that over 50% of dog bite attacks on children over a recent five-year period were caused by pit bulls.)

The Court stated that the AVMA’s statistics “may reflect the increasing popularity of pit bulls, i.e. more pit bulls—more attacks.  Other issues such as training, use by persons in the illegal drug trade, etc., may be causative factors.”  The Court cited a website, Animal People, for an estimate that pit bulls now make up about 5% of the total dog population of the United States.  Of dogs in animal shelters, 23% in a survey of 5,236 dogs were pit bulls, suggesting that pit bulls end up in animal shelters at a much larger ratio than any other breed, presumably in part from instances of aggression.    

A recent study of patients with dog bite injuries (Bini et al. 2011) found that not only were pit bull attacks more common than attacks by other breeds of dogs, but also those bitten by pit bulls were injured more severely, were more likely to be admitted to a hospital, more likely to have higher charges once admitted, and more likely to die.  The authors of the study concluded that “strict regulation of pit bulls may substantially reduce the U.S. mortality rates related to dog bites.” 

Other Jurisdictions

The Maryland Court of Appeals cited a case, City of Toledo v. Tellings, 114 Ohio St.3d 278, 871 N.E.2d 1152 (2007), in which the Ohio Supreme Court had upheld most of Toledo’s breed-specific regulations that classified pit bulls as “vicious dogs.”  The Ohio Court stated:

“The trial court cited the substantial evidence supporting its conclusion that pit bulls, compared to other breeds, cause a disproportionate amount of danger to people. The chief dog warden of Lucas County testified that (1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs, (2) pit bulls have killed more Ohioans than any other breed of dog, (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and other breeds of dogs combined, (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed. The trial court also found that pit bulls are ‘found largely in urban settings where there are crowded living conditions and a large number of children present,’ which increases the risk of injury caused by pit bulls.”

As discussed in a prior blog, the danger of a pit bull in a police raid is not just to the police, since an officer may feel the need to eliminate the risk from the pit bull by shooting it.

In 2006, a Kentucky appellate court approved a trial court’s determination that pit bull terriers have “inherently vicious and dangerous propensities.”  Bess v. Bracken County Fiscal Court, 210 S.W.3d 177 (Ct. App. 2006). 

In two Florida cases consolidated on appeal, The Florida Bar v. Pape and The Florida Bar v. Chandler, 918 So.2d 240 (2005), two Florida attorneys were disciplined under the Rules of Professional Conduct for using advertisements analogizing themselves as pit bulls. The court said that the analogy ignored the darker side of the qualities often associated with pit bulls: malevolence, viciousness, and unpredictability.  Of course, the lawyers were reflecting what their clients want.  At an initial interview where a client was asking what he wanted in his trial counsel, I remember the answer: “I want a pit bull.”  Even Sarah Palin found common ground between pit bulls and soccer moms. One wonders if the lawyers would have been disciplined had they compared themselves to Rottweilers or standard poodles.  I'm considering adding 'The Labradoodle of Lawyers' to my business card.

In a District of Columbia case, McNeely v. U.S., 874 A.2d 371 (Ct. App. 2005), two dogs attacked a woman as she put garbage in the trash can behind her house.  She tried to climb over a fence but one of the dogs pulled her off it and both dogs began to maul her.  “During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off, and she lost a large amount of blood. The attack finally ended when Avery's son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.”  The appellate court upheld the conviction and stated that all that had to be shown under the District’s Pit Bull and Rottweiler Dangerous Dog Designation Emergency Act of 1996 was that the pit bulls had attacked without provocation and that the owner knew the dogs he owned were pit bulls. 

In The Colorado Dog Fanciers, Inc. v. The City of Denver, 820 P.2d 644 (1991), the Supreme Court of Colorado upheld anti-pit bull legislation, rejecting the argument that the statute should be overturned because it “allows the determination that a dog is a pit bull based on nonscientific evidence.”  Thus, a dog with the physical characteristics of a pit bull could be banned based on its appearance, even if it were, say, a cross between a bull dog and a Labrador.  “Since ample evidence exists to establish a rational relationship between the city's classification of certain dogs as pit bulls, and since there is a legitimate governmental purpose in protecting the health and safety of the city's residents and dogs, the trial court correctly concluded that the ordinance did not violate the dog owner's right to equal protection of the laws.”

The Maryland Court of Appeals cited Harper, James, and Gray on Torts as finding that negligence could be established under a strict liability statute regarding certain dogs in Arizona, Florida, Illinois, Iowa, New Jersey, Nebraska, Oklahoma, Connecticut, Wisconsin, and Ohio.  Local and other laws also impose strict liability in California, South Carolina, and the District of Columbia. 

Summary Statement by the Court

Concluding all these strands, the Maryland Court of Appeals summarized its holding by stating that “upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, 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 the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bill or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises.” 


Three justices dissented, criticizing the majority for holding that a “trace of pit bull ancestry” would be enough to impose strict liability. The dissenters saw this as a case where bad facts led “inevitably to the development of bad law.”  They stated that “in accordance with the well-settled common law standard of strict liability, the breed of the dog, standing alone, has never been considered a sufficient substitute for proof that a particular dog was dangerous or had a violent nature.”  Also:

“Under the new rule announced today, however, the only corrective action an owner, keeper, or landlord could possibly take to avoid liability for the harm caused to another by a pit bull or mixed-breed pit bull is not to possess or allow possession of this specific breed of dog on the premises. Conversely, any other breed of dog in the possession of the owner or on premises controlled by the landlord, no matter how violent, apparently, would be judged by a different standard. As a result of the majority opinion, it is unclear as to what standard should be applied prospectively to owners and landlords for the liability of other breeds of dogs kept on the premises.” 

Of course, encouraging landlords not to rent to tenants with pit bulls will be an inevitable result of this case, and even pit bull service dogs will undoubtedly encounter resistance.The dissenters cited the 2006 article by Hussain as saying that more than 25 breeds of dogs are commonly mistaken for pit bulls. 

“[S]ome experts indicate that the term 'pit bull' does not describe any one particular breed of dog; instead, it is a generic category encompassing the American Staffordshire Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier…. Neither the American Kennel Club nor the United Kennel Club recognizes all three breeds, and the breed descriptions and standards provided by the two organizations differ…. It is difficult for courts, therefore, both to determine whether a particular dog should be categorized as a pit bull and to differentiate between pit bulls and other breeds.”

As Voith (2009) has noted, there is a discrepancy between breed determination based on physical attributes and scientific determinations. 

Breed-specific liability may provide a “superficial sense of security because many factors completely unrelated to the breed or appearance of dogs affect their tendency toward aggression, including early experience, socialization, training, size, sex, and reproductive status.” The dissenters argued that the courts should leave breed-specific rules to the legislatures, not attempt to change the common law as was done here. 


I have disagreed with breed-specific legislation before, and disagree with this modification of the common law.  Nevertheless, I can understand the frustration of a court when faced with serious attacks by dogs whose owners have not trained them and do not know how to control them, and often do not know how to control their children. 

The largest weakness of the decision is that pit bulls are not the only dangerous dogs, and people who want large aggressive dogs may easily shift their preferences to other breeds and mixed breeds. Great Danes could come into fashion among the drug crowd, ending the successful marketing of the dog as a gentle breed and bringing back the image of their ferocity they once had. 

Also, what is a pit bull?  Is genetic testing to be used when breeding records indicate that a dog that looks like a pit bull is in fact a cross between a bull dog and a Weimeraner?  If a dog that does not look like a pit bull, but without any prior history of aggression, attacks a child fatally, will the parents be able to test the dog’s DNA for the presence of some pit bull markers?  If there is a common law of pit bulls, that common law will have to be interpreted by lower courts in Maryland in countless possible situations.  The decision ignores the inherent plasticity of the canine phenotype.

I sometimes think that owners of large dogs with large jaws should be given an IQ test before being allowed to have a potentially dangerous animal. They should probably be given an IQ test before being allowed to have children as well.  These laws are, in reality, laws against the kinds of people who obtain dogs for defensive and aggressive purposes, often based on lifestyle choices.  In the end I am afraid such laws are unenforceable. 

Additional Sources:
  1. Beaver B. V., et al. (2001). A Community Approach to Dog Bite Prevention, Journal of the American Veterinary Medical Association, 218, 1732.
  2. Bini, J.K., et al. (2011). Mortality, Mauling, and Maiming by Vicious Dogs.  Annals of Surgery, 253, 791.
  3. Collier, S. (2006). Breed–Specific Legislation and the Pit Bull Terrier: Are the Laws Justified? Journal of Veterinary Behavior, 1, 17.
  4. Grey, K. (2003). Comment: Breed–Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems? 27 Nova Law Review 27, 415-432.
  5. Hussain, S.G. (2006). Note: Attacking the Dog Bite Epidemic: Why Breed–Specific Legislation Won't Solve the Dangerous–Dog Dilemma, Fordham Law Review, 74, 2847.
  6. Kaye, A.E., Betz., J.M., and Kirschner, R.E. (2009). Pediatric Dog Bite Injuries: A 5-Year Review of the Experience at Children’s Hospital of Philadelphia. Plastic Reconstruction Surgery, 124(4), 551-8 (Five hundred fifty-one patients aged 5 months to 18 years were treated in the emergency department after suffering dog bite injuries during the study period. The majority of injuries (62.8 percent) were sustained by male children. Dog bite injuries were most prevalent during the months of June and July (24.1 percent). Grade school-aged children (6 to 12 years) constituted the majority of victims (51 percent), followed by preschoolers (2 to 5 years; 24.0 percent), teenagers (13 to 18 years; 20.5 percent), and infants (birth to 1 year; 4.5 percent). Injuries sustained by infants and preschoolers often involved the face (53.5 percent), whereas older children sustained injuries to the extremities (60.7 percent). More than 30 different offending breeds were documented in the medical records. The most common breeds included pit bull terriers (50.9 percent), Rottweilers (8.9 percent), and mixed breeds of the two aforementioned breeds (6 percent).)
  7. Medlin, J. (2007). Comment: Pit Bull Bans and the Human Factors Affecting Canine Behavior. DePaul Law Review, 56, 1285.
  8. Ready, L. (April 28, 2011). Pit–Bull Terrier Therapy Dogs Provide Great Service to Their Community, Best Friends Animal Society Pit Bull Terrier Initiatives.
  9. Sacks, J.J., et al. (2000). Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998. Journal of the American Veterinary Medical Association, 217, 836.
  10. Voith, V.L. (July 11, 2009). Shelter Medicine: A Comparison of Visual and DNA Identification of Breeds of Dogs. Proceedings of Annual AVMA Convention.
  11. Wisch, R.F. (2006). Quick Overview of Dog Bite Strict Liability Statutes. Michigan State University College of Law Animal Legal & Historical Center (May 2006, updated 2010).
Thanks to L.E. Papet for comments and additional sources.

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