Federal Challenge Filed by Pit Bull Owner

From the Baltimore Sun: Maryland pit bull ruling is challenged in federal court

Strict Liability for Pit Bulls - Part Two

On August 21, 2012, the Maryland Court of Appeals issued an Order relating to a Motion for Reconsideration (.pdf) filed in Tracey v. Solesky, the case decided earlier this year that held that strict liability exists for the owners of pit bulls and 'cross-bred pit bulls' and their landlords. Subsequently, Tracey filed a Motion for Reconsideration asking the Court to review their decision with regards to the inclusion of cross-bred pit bulls. The Court's order amends the earlier Opinion by deleting any reference to cross-breds, pit bull mix, or cross-bred pit bull mix.

The Humane Society has set up a helpline for Maryland families at 1-855-633-6471 (1-855-MDDOGS1).  Additionally, they have included on their website an information sheet (.pdf) for landlords and property owners. 

Pet Trusts in Maryland

I grew up in a veritable zoo. My family included dogs, cats, parrots, lizards, frogs, turtles, fish, and hermit crabs. My parents spare no expense when it comes to their pets, and the care of the menagerie trumped everything else. My mother's mantra is "Animals can't care for themselves" - which is very true, especially if something happens to the pet owner. My mother has always maintained a list of people to call in the event that she and my father pass away. This list includes various breeders, family members, friends, aviaries and wildlife preserves in whom my mother has faith to take care of her furry, feathered and scaly friends. Recently, I have been giving a lot of thought to care for Bandit, the dog my husband and I adopted last fall, should something happen to us.

Fortunately, in 2009, Maryland enacted a 'pet trust' law to allow pet owners a formal mechanism to provide for their pets after the owner's incapacitation or death. The trust can be created for the benefit of an animal alive during the lifetime of the settlor. The trust terminates with the death of the animal (or the death of the last remaining animal if the trust provides for multiple pets). The trust may be enforced by a person appointed by the trust or by the court if the trust does not appoint someone. Further, a person with an interest in the welfare of the animal can petition the court to appoint a person to enforce the trust. In the trust, settlor's can provide express instruction for distribution of trust funds after the passing of their pet. If the funds of the trust are not used in full, the remaining funds can be distributed to the settlor or the settlor's successors. MD Estates & Trust Section 14-112.

Generally, a pet trust consists of a trustee and a caregiver. The caregiver provides the daily care for the pet, while the trustee oversees the handling of the trust to ensure the caregiver's compliance with the terms of the trust. Pet trusts allow the pet owner to have control over the care of their pet. Rather than rely on the goodwill of those tasked with caring for an orphaned pet, the trust can designate the standard of care for the pet. Trusts can direct veterinary care, diet, boarding, and the general standard of living to be maintained for the benefit of the pet. Additionally, the trust can provide compensation to the trustee and the caregiver.

Strict Liability for Pit Bulls

On April 26, 2012, the Maryland Court of Appeals held in Tracey v. Solesky that anyone with the ability to limit the presence on their property of a pit bull or mixed-breed pit bull is subject to strict liability in the event that the dog bites a human. This is a drastic departure from the previous common law, which had placed the burden on the plaintiff to proof that a dog that bites a person had a history of aggression. The new ruling is unique in that it singles out a specific breed, a stance adopted by some local municipalities and counties across the country but never by a state supreme court. The dissent in the case pointed out a few flaws with the courts reasoning, including that the opinion did not specify what defines a pit bull (the term actually has been used to describe a number of breeds) or the degree to which any individual dog is a pit bull (regarding the percentage of breed).

The case has implications for dog owners, business owners, and residential and commercial landlords. Dog owners may find themselves subject to additional lease terms if they possess lease terms, or may find themselves unable to obtain a lease while owning a pit bull. Some animal advocates have postulated that the ruling will lead to record numbers of bully breed dogs being surrendered to animal shelters, which in turn will be unable to adopt out the dogs because of stigma associated with the breeds. Additionally, concern has been raised that dogs of suspect breed - as there are many breeds which are confused with pit bulls - may be unfairly judged and surrendered.

Tracey v. Solesky placed strict liability on landlords as well as pit bull owners. Landlords have the ability to restrict what breeds of dogs are present on their property; as such, the court has held that landlords have a burden to determine what breed of dog is on their property. Landlords may want to pursue stringent intake for pet owners, including training employees to recognize pit bulls. Additionally, landlords who choose to allow pit bulls on their property may want to request additional insurance from tenants.

One group that the opinion neglects to consider is the small business owner who holds a commercial lease. Veterinarians, dog groomers, pet food stores, and other businesses that cater to dog owners and welcome dogs onto their property could be held to strict liability for the presence of pit bulls on their property. Small business owners have less liberty to limit who enters their business, but could possibly be held responsible for attacks that occur during ingress and egress from their property. Negotiation of commercial leases for these businesses may include provisions regarding pit bull liability.