By Cory Bilton
Chuck Berry, one of the pioneers of rock-and-roll, used to say, “Don’t let the same dog bite you twice.” Although he probably wasn’t referring to legal liability, the quote closely resembles the common law “One Bite Rule.” The rule says that the owner of a dog isn’t liable for injuries caused when the dog bites someone, so long as the dog had never bitten anyone before. Put another way, every dog gets one free bite. Until a dog bites someone, so the logic goes, the dog’s owner has no reason to think the dog would bite someone. Last week, the Maryland legislature passed a new law that makes it much harder for any Maryland dogs to get a free bite.
Maryland has never strictly followed the One Bite Rule. Instead, the standard up until a few years ago was that a dog owner was liable to the person the dog bit when the dog (a) had a vicious propensity and (b) the vicious propensity or inclination was known to the owner. Shields v. Wagman, 714 A.2d 881, 890-91 (Md. 1998). The owner’s knowledge of the dog’s viciousness (a dog can be have a vicious propensity without ever having bitten someone) puts the owner on notice and should cause the owner to anticipate that the dog may bite someone. However, if a dog had shown no vicious propensity, the dog was permitted a free bite without making the owner liable. See Shields, at 891.
The real controversy started when the Maryland Court of Appeals decided Tracey v. Solesky, 50 A.3d 1075 (Md. 2012). The case involved a pit bull named Clifford that mauled a boy named Dominic. Dominic required emergency surgery to save his life, spent the next 17 days in the hospital, and then the next year in rehabilitation. The issue was that Clifford’s owner apparently did not have a clear indication that Clifford had a vicious propensity. Tracey set a new legal standard for dog bites: “when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull … or should have had such knowledge” a case for liability has been established. Id. at 1079-80. Thus, Tracey created strict liability for injuries caused by pit bulls. All pit bulls are presumed to have a vicious propensity. (In a later reconsideration, the court restricted its Tracey holding solely to purebred pit bulls, not to cross-bred pit bulls.)
Last Friday, the Maryland legislature passed a new law (SB 0247 and HB 0073) to change the duties for all dog owners in Maryland. The law states that “evidence that the dog caused the personal injury or death creates a rebuttable presumption that the owner knew or should have known that the dog had vicious or dangerous propensities.” Under this law, an injured person is not required to prove that the owner knew the dog was vicious, but instead, the dog owner must present evidence that he didn’t know the dog was vicious. Even better, the law prohibits judges from ruling the presumption has been rebutted prior to a jury coming to that conclusion (so, no summary judgment on viciousness). This rule will apply to all dogs, irrespective of the breed, and specifically to dog owners. The standard for non-owners (e.g. landlords) is the same as the standard that existed on April 1, 2012 (before Tracey v. Solesky was decided): landlords must know of the dog’s vicious propensity and have some element of control over the dog’s presence.
In many respects, I think the new law is a good compromise. The old “vicious propensity” standard made it too difficult for an injured victim to hold the dog owner liable. The burden was on the victim to present proof that the owner knew or should have known about the dog’s viciousness. This type of evidence can be very difficult to gather, particularly when the victim didn’t know the dog prior to the attack. The new law places the burden on the owner to prove the dog is not vicious or that the attack was a freak occurrence. Shifting the burden onto the owner also means that insurance will more often become available to the injured victim because a dog owner’s homeowner’s insurance will usually cover attacks by the homeowner’s dog. And much to the relief of pit bull owners, the new law doesn’t single them out for special treatment.
For some deep background on the issue, complete with data on dog bites, insurance coverage information, and comparison of dog bite laws around the country, the Maryland Department of Legislative Services has published this excellent report. The new law still requires the governor’s signature before it goes into effect. After it goes into effect, it will be codified as Maryland Courts and Judicial Proceedings § 3-1901. You can track the history of the bill’s progress here.
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