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Landlords and Pit Bulls, Part 1

Blog entry by Anthony Taibi
 
 
     In a recent case, Tracey v. Solesky, the Maryland Court of Appeals reversed a trial court’s grant, in a civil negligence case, of judgment for a defendant landlord whose tenant’s pit bull escaped from an “obviously inadequate small pen” twice on the same day and horribly mauled and critically injured two small boys.  Rather than rule on the narrow question of the sufficiency of the particular evidence presented against the landlord, as had the intermediate Court of Special Appeals, the Maryland high court decided to examine whether the traditional common law as it relates to dog attacks needed to evolve to meet contemporary needs. 
 
      Traditional common law made a sharp distinction between “wild” animals and “domestic” animals.  With respect to the keeping of wild animals, the keeper is “strictly” liable for any injuries or damages the animal causes, i.e., it is no defense that the keeper employed reasonable care, or even a high degree of diligence to prevent the animal’s escape.  As a leading treatise explained:
 
He  may  keep  such  animals,  if  he  will,  but  if  he  has  notice of  their  danger to human beings . . . , he cannot keep them, even carefully, at the risk of others. He has introduced an unusual danger into the community and he does so at his own risk.

Harper, James and Gray on Torts, Section 14.11 (3rd ed., 2007).  In contrast, as it has often been said, under the common law every dog is entitled to one free bite.   “In order 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.”  Goode v. Martin, 57 Md. 606, 609-612 (1882).  Thus, a keeper is only liable for injuries inflicted by his dog, as he otherwise would be for any other escaped animal, if it can be affirmatively proven that the dog was actually known by the keeper before the attack to be unusually dangerous.  As a practical matter, this rule had the effect of requiring a plaintiff bite victim to prove both that the dog that bit him was a “dangerous” dog before his attack, and that the keeper knew this fact.  This requirement of “guilty knowledge” creates a high bar for successfully suing dog owners, but even more significantly, it practically insulates non-owners with duties for premises safety, such as landlords, from any responsibility for their tenants’ animals.  

    The common law values precedent and the status quo and is, by its nature, slow to impose new legal duties and responsibilities.  Nevertheless, both practical and ideological change slowly make their way into common law analysis.  Practically, as dense urban living replaces the rural ideal, people are more frequently injured by the potentially dangerous activities of their neighbors.  Ideologically, our social discourse and language of public policy speaks less in the language of tort law’s moral fault analysis and more in the rhetoric of risk management.  Under traditional common law rules, landlords who turn a blind eye and eschew any responsibility for criminal and dangerous activity taking place on their property can profit by avoiding knowledge of, and therefore any responsibility for, any dangers to the public occasioned by such activities.  Add into this context the cultural emergence of the “gangster pit bull” as an antisocial fashion accessory.  It is not surprising that the common law should evolve when its existing rules incentivize landlords and their insurers to ignore preventable public hazards.

    The Maryland court, although recognizing evolving social realities, still clings to the common law pretense that liability must be based on moral fault and guilty knowledge, rather than efficient risk management.  Thus, the court did not expand the duties of landlords with respect to animals kept by their tenants, but rather created a single, narrow, expansion of “guilty knowledge” to include the knowledge that a pit bull (or a pit bull cross) is “dangerous,” so that, as with wild animals and dogs known to have previously attacked, when such an animal escapes and injures someone, their keepers are liable without further proof required.

    I have many friends who are dog lovers and rescue activists, and they are outraged by the Maryland court’s ruling.  To me, this case represents, at best, a halfway measure that will force landlords to take a little more responsibility for dangers to the public caused by their tenants and may make it easier for some dog mauling victims to get compensation.  Dog rescue activists have a rather different perspective, arguing that this court has effectively killed adoptable animals simply based on their appearance and perpetuated unfair prejudice against this breed – as unacceptable as stereotype-based bias toward humans of different genders, races, and cultures.  As a practical matter, legally branding this single breed as “dangerous,” the dog activists reasonably argue, will result in landlords simply refusing to rent to families that keep them and insurance companies excluding them from coverage, which will in turn lead to animals being put to death as fewer people will be able to rescue and give them adoptive homes.