Monday, July 16, 2012

No free munch for Maryland pitbulls

There is long and old common law to the effect (differently worded) that domesticated animals are presumed tame, therefore, to prove negligence, some distinctly undomesticated act must be proved to show that the unsafe keeping of such an animal is grounds for a negligence claim if the animal should (again) prove itself to be vicious. It's given rise to the short hand lore, "every dog gets at least one bite".

Well no more, at least not in Maryland, and at least as long as the recent 4-3 decision of the State's highest court lies undisturbed by an "activist" legislature. Oooops, It's courts what be derogotorally "activists". Legislatures are supposed to be non-derogotorally "activist", which they can't be if all they are is obstructionist. But Guambat digests.

The case is
Tracey v. Solesky(COURT OF APPEALS OF MARYLAND No. 53, September Term, 2011):
In Maryland the vicious mauling of young children by pit bulls occurred as early as 1916. Over the last thirteen years, there have been no less than seven instances of serious maulings by pit bulls upon Maryland residents resulting in either serious injuries or death that have reached the appellate courts of this State, including the two boys attacked by the pit bull in the present case. Five of the pit bull attacks in Maryland have been brought to the attention of this Court, and two have reached the Court of Special Appeals.

The present case involves an attack by a pit bull named Clifford. Notwithstanding his
relatively benign name, Clifford possessed aggressive and vicious characteristics. He escaped twice from an obviously inadequate small pen attacked at least two boys at different times on the same day.

Here, the trial court granted a judgment for the defendant landlord at the close of the Plaintiff’s case on the grounds that, according to the trial judge, the evidence was insufficient to permit the issue of common law negligence to be presented to the jury.

On the state of the common law relating to dog attacks in existence at that time, the trial court was correct.

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.
The dissent pointed out that hard facts make bad law, and the making of bad law was the perogative of the legislature.

It's an interesting and easily readable (if not digestible) opinion.

Guambat points out that no one is ever liable if that child-friendly, lovable peace-nik pitbull behaves itself.

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2 Comments:

Blogger Sputnik2009 said...

I'm wondering now whether Guambat is the uninsured owner of one (or more) pit-bull type dogs.

Also wondering whether Guambat bothers to educate himself (unless he's a she with a wife, which would be fine with me except to correct the pronoun) before speaking precious cutie-tudes.

I guess I must, nevertheless, value this blog entry as an expression of how the general pit-owning public, as well as the pit-lies-swallowing public whose child hasn't yet been savaged (you know, it's not important til it happens to me) is frivolously thinking about the issue.

Which is to say: It ain't serious until my own child is (half) dead, then I'll do more than write cutie-tudes about it.

Thank you.

19 July 2012 at 2:13:00 am GMT+10  
Blogger Guambat Stew said...

Thank you. No, Guambat does not keep a pitbull in his burrow. He has had a couple of dogs in his younger years but finds them a nuisance in his current burrow. His predilection is to ban the pit bull varietal, but his legal training keeps his eye, if not always mind, open to the full range of issues, and is highly skeptical of final solutions.

"Cuti-tudes": I like it. So condescendingly snide, I must remember it.

26 July 2012 at 10:22:00 am GMT+10  

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