Dog Bite Law

Overview

Maryland is a state that shields irresponsible dog owners from liability, by adhering to the ancient "one bite rule," a 16th century British legal principle which runs counter to modern American beliefs about personal responsibility. Making matters worse, this is one of just several states that refuses to give compensation to victims of dog owner negligence. And still worse, Maryland is one of five jurisdictions in the USA that adheres to another ancient British legal principle called the "contributory negligence" doctrine -- a discredited, inhumane rule that deprives a victim of all compensation if he was responsible for even one percent of an accident.

The courts of Maryland have misunderstood the essence of the Olde English dog bite law that they purport to enforce. Under the common law, knowledge of a dog's dangerous propensity to bite made the dog's owner strictly liable for injuries -- not liable for negligence. Strict liability was one thing, and negligence liability was quite another. The courts of this state have incorrectly ruled that the traditional cause of action for negligence requires that the dog owner have knowledge of a dangerous propensity of his dog. In other words, the courts have conflated the strict liability and negligence doctrines in dog bite cases.

By ruling in this manner, the courts have made it impossible for a dog bite victim to receive compensation for injuries resulting from dog owner irresponsibility, foolishness, stupidity and the like. For example, if a dog owner brought his pit bull to a day care center, and the dog mauled a toddler, the dog owner would have no liability at all unless the parents of the child could prove that the dog had demonstrated the specific dangerous propensity to bite people. The sheer stupidity and recklessness of bringing the dog there would not be enough to make the dog owner liable in this state.

The state legislature should be encouraged to pass a dog bite statute that would make dog owners liable for any injuries caused to a person or animal, irrespective of the dog's past behavior, and in clear terms should establish that a cause of action of negligence will be based upon unreasonable behavior and foreseeability of harm, again without any requirement of proof of dangerousness. And when it passes such a law, it also should abolish the doctrine of contributory negligence and replace it with the modern American rule of comparative liability.

Liability is based upon common law strict liability

The basic rule of liability in Maryland was stated as follows in Herbert v. Ziegler, 216 Md. 212, 139 A.2d 699 (1958):

To hold liable the owner of a domestic animal that has caused injury, the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care should have known, of the inclination or propensity of the animal to do the particular mischief that was the cause of the harm. Twigg v. Ryland, 62 Md. 380, 386 [1884]; and May Co. v. Drury [160 Md. 143, 153 Atl. 61 (1931)], Evans v. Upmier [16 N.W. 2d 6 (Ia. 1944)] and Lynch v. Richardson, [39 N.E. 801 (Mass. 1895)], all supra; Prosser, Page 457} Torts (2d ed.), Sec. 57, pp. 323-325; Restatement, Torts, Sec. 518. Id. at 216.

In Hamilton v. Smith, 242 Md. 599, 608, 219 A.2d 783 (1965), it was established that the owner of three dogs who had savagely attacked a nine-year old boy had actual knowledge of the dogs' vicious propensities. The court held that "there are three elements which must be proven against a defendant in order to show negligence on his part: (1) owning or harboring of an animal; (2) with vicious propensities, (3) with knowledge (scienter) of its vicious propensities."

Scienter means knowledge of dangerousness and does not necessarily require a prior bite. In Twigg v. Ryland, 62 Md. 380 (1884), it was held that:

The owner or keeper of the dog or other domestic animal must be shown to have had knowledge of its disposition to commit such injury, and the burden of proving this fact is on the plaintiff, though it would be otherwise if the animal was of a nature to be fierce and untamable, such as bears, tigers, etc. Spring Co. v. Edgar, 99 U.S. 645. The notice which will charge the owner or keeper with liability for the vicious conduct of the animal must be notice that it was inclined to do the particular mischief that has been done. Hence, notice that a dog is ferociously disposed towards cattle, is no notice that he will attack persons. It is not necessary to show that the owner or keeper of a vicious dog has seen the animal attack mankind; but it is sufficient to show that the vicious propensity of the animal has, in some way, been brought to the knowledge of the owner or keeper, so as to admonish him to take the necessary precaution to prevent injury in the future. Hence the question in each case is whether the notice was sufficient to put the owner or keeper on his guard, and to require him to anticipate the injury that has actually been done. Id. at 385-86.

Knowledge of dangerousness can be proved by circumstantial evidence that infers knowledge of dangerousness on the part of the dog owner. Bachman v. Clark, 128 Md. 245, 248, 97 A. 440 (1916). In that case, there was evidence that the dog was always kept in an enclosure; that the dog would jump on people entering the enclosure; that the dog would become excited, bark and run up and down the fence, attempting to bite a stick thrust between the palings by boys upon the outside; that the dog would growl; and that the dog was always kept within the enclosure except when on a strap. On the basis of that evidence, the court held there was legally sufficient evidence to go to the jury as tending to show the defendant's knowledge of the dog's vicious propensity or inclination to bite mankind.

It must first be shown, in order to render the owner liable for damages to one bitten by his dog, that the dog had a vicious propensity, and second that such vicious propensity or inclination was known to its owner. But the owner's knowledge of the dog's vicious propensity need only be such as to put him on his guard and to require him as an ordinary prudent person to anticipate the act or conduct of the dog resulting in the injury for which the owner is sought to be held liable. 3 C.J. 96. The owner's knowledge of the propensity of the dog may be, and most generally is, acquired from its conduct and behavior, although such knowledge may be acquired from other persons, and in some cases the knowledge of others is imputed to the owner.

However, knowledge of dangerousness is not implied if it is based solely on breed, as least in a case that did not involve a pit bull. In McDonald v. Burgess, 254 Md. 452, 255 A.2d 299 (Md.App. 07/01/1969), a child apparently was injured by a German shepard when the owner took the child into the dog's dog run. The plaintiff argued that the fact that the dog was a German shepard should have put the dog owner on notice that the dog might be dangerous. The court rejected that argument.

Landlord Liability

"`[W]here a landlord leases separate portions of his property to different tenants and reserves under his control the passageways and stairways, and other parts of the property for the common use of all the tenants[,] he must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition.' Langley Park Apts. v. Lund Adm'r, 234 Md. 402, 407, 199 A.2d 620, 623 (1964).

The duty to maintain these areas in a reasonably safe condition extends not only to the tenant but "includes the members of his family, his guests, his invitees, and others on the land in the right of the tenant." Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739, 741 (1959). "It has been held that a child on the land at the invitation of the child of the tenant is entitled to the benefit of the landlord's obligation in this respect." Landay v. Cohn, supra, 220 Md. at 27-28, 150 A.2d at 741.

Accordingly, in Shields v. Wagman, [citation needed], the Supreme Court held that landlords of a strip shopping center may be liable for injuries sustained by a business invitee and a tenant when they were attacked by a pit bull dog owned by another tenant and kept on the leased premises. The injuries in Shields occurred in a common area, the parking lot of the shopping center, on two occasions when the pit bull escaped from the leased premises.

As with most general principles of law, however, this principle, that a landlord is not responsible for dangerous conditions in the leased premises, is not absolute and has exceptions. For example, where a landlord agrees to rectify a dangerous condition in the leased premises, and fails to do so, he may be liable for injuries caused by the condition. See, e.g., Sacks v. Pleasant, 253 Md. 40, 44-46, 251 A.2d 858, 861-862 (1969) (landlord held liable for injuries caused by a defective toilet seat where the landlord promised but failed to repair the same); Farley v. Yerman, 231 Md. 444, 448, 190 A.2d 773, 775 (1963) ("a tenant . . . may maintain an action for injuries sustained as a result of an uncorrected defect . . . if there was a contractual obligation to repair the particular defect and a reasonable opportunity to correct it. . . . A promise made in the face of a threat to move or a request by the landlord that the tenant remain creates a contract supported by consideration").

If a landlord, although not contractually obligated to do so, voluntarily undertakes to rectify a dangerous or defective condition within the leased premises, and does so negligently, the landlord is liable for resulting injuries. Miller v. Howard, 206 Md. 148, 155, 110 A.2d 683, 686 (1955); Miller v. Fisher, 111 Md. 91, 94, 73 A. 891, 892 (1909) ("although a landlord, in the absence of a covenant to that effect, is ordinarily not bound to repair, yet if he assumes to do so, and performs the work so negligently as to cause an injury thereby, he is responsible").

Defective or dangerous conditions in the leased premises which violate statutes or ordinances may also be the basis for a negligence action against the landlord. See, e.g., Richwind v. Brunson, supra, 335 Md. at 671, 645 A.2d at 1152 (adopting Restatement (Second) of Property: Landlord and Tenant 17.6 (1977)).

In Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544, 719 A.2d 119 (Md. 10/07/1998) the court stated "We issued a writ of certiorari in this tort case primarily to decide the issue of whether a landlord of an apartment complex owes a duty to social guests of a tenant who, while in the tenant's apartment, are injured or killed by a highly dangerous pit bull dog kept by the tenant, when the landlord knew of the dog's presence and was aware of the dog's dangerousness, when the presence of the dog was in violation of the lease, and where the landlord could have taken steps to abate the danger."

The defendant tenant owned a pit bull that clearly was vicious and dangerous, in that it had attempted to attack many people on the premises. The landlord clearly knew about the dangerousness of the dog, because the landlord's own employees wrote reports about the dog. On the day of the incident, the dog attacked and killed a young child who was a social guest of the tenant. The tenant and the landlord were sued.

The court first addressed whether the circumstances presented a negligence case. The general rule is that "[i]n order to state a cause of action in negligence, the plaintiff must show the following: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994).

The court ruled that the landlord retained control over the presence of a dog in the leased premises by virtue of the "no pets" clause in the lease. The lease plainly stated that breach of the "no pets" clause was a "default of the lease." Such a default would enable the landlord to bring a breach of lease action to terminate the tenancy.

The tenant Morton was maintaining an extremely dangerous instrumentality, both in the leased premises and at times in the common areas. The landlord knew about the dangerous pit bull dog for a considerable period of time. By the terms of the lease, the landlord had retained a large measure of control over the presence of such an animal in the leased premises. Under the circumstances here, and the prior cases in this Court emphasizing the factor of a landlord's control, it is not unreasonable to impose upon the landlord a duty owed to guests who are either on the leased premises or the common areas.

The fact that the dog was a pit bull was held to constitute evidence of forseeability. The circumstances, as summarized by the court, were "that a dangerous pit bull was kept on the leased premises by a tenant, that the landlord had knowledge of the potential danger, and that the landlord had the ability to abate the danger by not keeping the dog owner as a tenant." The court said,

We do not hold that a landlord's retention in the lease of some control over particular matters in the leased premises is, standing alone, a sufficient basis to impose a duty upon the landlord which is owed to a guest on the premises. This Court has employed a balancing test to determine whether a duty of reasonable care should be imposed in particular circumstances....In the instant case, the various policy considerations that need to be weighed are the general understanding that a tenant is primarily in control of the leased premises and the sanctity of a tenant's home, including her ability generally to do as she sees fit within the privacy thereof, against the public safety concerns of permitting that same tenant to harbor an extremely dangerous animal that will foreseeably endanger individuals inside and outside the walls of the leased premises, the degree of control maintained by the landlord, the landlord's knowledge of the dangerous condition, and the landlord's ability to abate the condition.

Defenses to dog bite cases

Negligence of parents as a defense

Code (1974, 1995 Repl. Vol.), 10-910 of the Courts and Judicial Proceedings Article states:

[114] "In an action on behalf of an infant to recover for death, personal injury, or property damage the negligence of the parent or custodian of the infant may not be imputed to the infant."

[115] In light of that statute, a parent's negligence will be deemed to constitute an "independent and superseding cause of the child's injuries" in only an "extraordinary situation." Caroline v. Reicher, supra, 269 Md. at 130, 304 A.2d at 834.

Negligence of child under five years old not a defense

With regard to counts I and II, Tevin, as a sixteen-month old baby, as a matter of law could not have been guilty of contributory negligence or assumption of the risk. See Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951) ("a child four years old cannot be guilty of contributory negligence under any circumstances"); Bozman v. State, 177 Md. 151, 155, 9 A.2d 60, 62 (1939); Mahan v. State, 172 Md. 373, 385-386, 191 A. 575, 581 (1937) ("The great weight of authority is opposed to the proposition that a child a little over four years of age can be guilty of contributory negligence").

Lack of time to evict tenant not a defense where no attempt was made to evict

The defendants also assert that it is not certain "that the landlord would have been successful with an eviction procedure before February of 1994, when the attack occurred." (Defendants' brief in this Court at 30-31). If the landlord had promptly instituted an eviction proceeding, however, the landlord would have done what it could and thus would have fulfilled its duty even if the legal proceeding did not result in the tenant's eviction before February 9, 1997.
Footnote 3, Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544, 719 A.2d 119 (Md. 10/07/1998) (baby killed by tenant's pit bull known by landlord to be vicious and dangerous; defense contention that tenant might not have been evicted in time to prevent accident was rejected because defendant landlord had taken no steps to initiate the eviction).

Assumption of the Risk

In Benton v. Aquarium Inc., 62 Md. App. 373, 489 A.2d 549 (Md.Sp.App. 04/03/1985), a delivery man saw a sign in a warehouse that said "Guard Dog on Duty." Despite reading the sign, the man opened the door of an office, where he was attacked by a dog. His conduct was deemed to have constituted an assumption of the risk of injury, and on that basis his case was lost.

---

www.dogbitelaw.com and each of its sections and products, including Dog Bite Law, The Dog Bite Law Adviser, Dog Bite Litigation Forms, What To Do If Your Dog Is Injured Or Killed, Avoiding Liability When You Train, Shelter or Adopt-Out, Anatomy of a Dog Bite Case, and the foregoing text, are (c) 1999-2008 Kenneth M. Phillips. All rights reserved. Reproduction in whole or part prohibited except where advance permission is granted in writing. Please read the disclaimer and our rules for linking and quoting. Reporters seeking interviews are welcome to click here.