SOLESKY v. Tracey

MEREDITH, J. This appeal challenges the grant of a motion for judgment in favor of the defendant landlord in a case in which the parents of a young boy sought damages for injuries inflicted by an American Pit Bull Terrier (“pit bull”) owned by the landlord’s tenants. On April 28, 2007, a pit bull escaped from a pen that was located in the backyard of a residential property in Towson, Maryland. In an alley adjacent to the backyard of the property, the pit bull seriously injured ten-year-old Dominic Solesky. The property from which the dog escaped was owned by Dorothy M. Tracey, appellee, and rented to Thomas C. O’Halloran and Erin Cesky, the owners of the pit bull that attacked the child.

On March 24, 2008, the child’s parents — Anthony K. Solesky and Irene Solesky (“the Soleskys”), appellants — filed a complaint against the dog’s owners and the landlord, seeking money damages in the ²⁹⁶ Circuit Court for Baltimore County. The claims against the dog’s owners were discharged in bankruptcy. The claims against the landlord included counts alleging negligence and strict liability. During discovery, the Soleskys moved for sanctions against the landlord for not attending a deposition due to poor health, and for spoliation of evidence.

The circuit court denied both of these motions, and the case proceeded to a jury trial. At the close of the Soleskys’ case, the landlord moved for judgment, and the circuit court granted judgment in her favor, ruling there was insufficient evidence that the landlord (a) was on notice of the vicious nature of the dog, or (b) retained control over the tenants’ use of the leased premises. The Soleskys appealed, and contend that the circuit court erred (1) in denying them sanctions, and (2) in granting the motion for judgment in favor of Tracey. 1 In our view, the evidence, when considered in a light most favorable to the Soleskys, was sufficient to survive a motion for judgment. Accordingly, we will vacate the circuit court’s ²⁹⁷ entry of judgment in favor of the landlord, and remand the case to that court for further proceedings.

Standard of Review Because this appeal arises from the circuit court’s granting of a motion for judgment at the close of the plaintiffs’ case in a jury trial, our task is to determine “whether, as a matter of law, the evidence produced during [the Soleskys’] case, viewed in a light most favorable to [them], is legally sufficient to permit a trier of fact to find that the elements” of a cause of action have been proved by a preponderance of the evidence. Driggs Corp. v. Md. Aviation, 348 Md. 389, 402 , 704 A.2d 433 (1998); Md. Rule 2-519(b). As Chief Judge Krauser observed for this Court in Moore v. Myers, 161 Md.App. 349, 363 , 868 A.2d 954 (2005): “Maryland has adopted a very restrictive rule about granting [motions for judgment] in negligence actions.” Banks v. Iron Hustler Corp., 59 Md.App. 408, 423 , 475 A.2d 1243 (1984). Indeed, it “has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury.” Id.

(quoting Fowler v. Smith, 240 Md. 240, 246 , 213 A.2d 549 (1965)). “The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury.” Id. (emphasis omitted). Accord Plitt v. Greenberg, 242 Md. 359, 367-68 , 219 A.2d 237 (1966) (“[T]his Court has always maintained that if there be any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court has invaded the province of the jury by declaring a directed verdict.”). A jury’s verdict may rest upon circumstantial evidence alone.

See Robinson v. State, 348 Md. 104, 112 , 702 A.2d 741 (1997) (“Circumstantial evidence is in no manner intrinsically inferior to direct evidence.... In a given case, circumstantial evidence may be more persuasive than direct evidence.”). ²⁹⁸ We set forth the following facts, and discussion, in accordance with this standard. Facts and Procedural History On December 26, 2005, Tracey entered into an agreement to lease the residential property she owned at 208 Burke Avenue (also known as “208 East Burke Avenue”) to O’Halloran and Cesky for one year. Tracey had used the services of a Long & Foster real estate agent to find tenants for the property.

The lease agreement included a provision stating: The following pet(s) may be kept on the premises: American Bulldog Terrier. Tenant agrees to arrange for and pay the costs of having the carpets/flooring professionally cleaned, deodorized and treated for fleas, ticks and other vermin at the termination of occupancy, should the above consent be given. Paid receipts for such cleaning and treatment must be provided to Landlord. Tenant further agrees to assume all liability and to be responsible for any damage caused by said pet(s) such as, but not limited to damage to carpets, sub flooring and wood floors, screens, glass and frames and landscaping.

Tenant must comply with any pet ordinances enacted by the local authorities, homeowners or condominium associations. Tenant shall not keep the pet on the premises if the pet is or becomes vicious or threatening, bites or attacks any person or other pet, or otherwise is or becomes a nuisance. Tenant assumes full liability for the results of any actions of pet. With the exception of properties located in Montgomery County, if Tenant permits or harbors a pet on the premises without: 1) permission of Landlord, and 2) payment of the required pet deposit, tenant shall be in violation of the lease.

If tenant violates the “no pets” provision of the lease, tenant agrees to pay, as additional rent, $200 per month per animal for each month violation exists, in addition to any damages, physical or otherwise, which in the opinion of Landlord were caused by the unauthorized animal on the premises. Landlord also reserves the right to require removal of the animal ²⁹⁹ from the premises, and require additional security deposit to be held for balance of the tenancy. The dwelling known as 208 Burke Avenue comprises the western half of a duplex structure, the other half of which is not owned by Tracey. The main entrance to the property faces south, along Burke Avenue.

The backyard of the property contains an unfenced grass plot, and a parking pad. A paved alley abuts the backyard. On December 31, 2006, the initial lease term for 208 Burke Avenue expired. Tracey’s daughter, Rose M. Schisler, drafted a new lease agreement, dated January 22, 2007, to re-let the property to O’Halloran and Cesky.

On January 23, 2007, Tracey and Schisler visited 208 Burke Avenue in order to inspect the property and review the proposed new lease with O’Halloran and Cesky. They parked in the alley behind the property. Schisler saw that O’Halloran and Cesky kept two pit bulls on the property, one male and one female. Schisler observed in the backyard what she described as a “very tall, kind of cube-shaped” pen.

A photograph of the pen shows that it is approximately five feet long, five feet wide, and four feet high. It is made of chain-link fencing, and has an open top. Aside from the pen, the backyard of Tracey’s property is unenclosed. On the day of the inspection, Tracey, O’Halloran, and Cesky signed the lease agreement Schisler had drafted.

Schisler signed the agreement as a witness, and was identified in Paragraph 15 of the lease as the “Property Manager.” With respect to the dogs, the renewal lease included the following paragraphs: 11. Pets: The Lessee is allowed to keep pets that are agreed upon by Lessee and Lessor: 2 pit bull dogs. 13. The Lessee will be civically [sicl and financially responsible for their pets. Should their pet(s) harm anyone, it is the Lessee’s financial responsibility to pay for the damage.

The Lessor is in NO Way responsible. 2 ³⁰⁰ The renewal lease did not contain the additional pet language which was in the Long & Foster lease agreement for the initial lease. Approximately three months later, on April 28, 2007, ten-year-old Dominic Solesky was playing with three of his friends in the alley which runs behind Tracey’s property. On the opposite side of the alley are the backyards of houses fronting on Ridge Avenue. Dominic lived at 249 Ridge Avenue with his parents (the Soleskys) and his brother.

Dominic and his friends were playing a game in which they would hide, then shoot at one another with foam darts from toy guns. While Dominic was hiding, he heard his friend Scotty scream. Dominic ran to the alley, where he saw Scotty’s toy “gun [lying] in the middle of the alley with a little bit of blood next to it.” Scotty had been bitten by the tenants’ male pit bull, which had escaped from the pen. By the time Dominic reached the alley, O’Halloran had placed the dog back in its pen.

Dominic walked toward the toy gun Scotty had dropped in the alley. As he did so, he heard the sound of a fence rattling. He turned around to see the pit bull that had bitten Scotty “kicking off’ the female pit bull — ie., standing on the female dog’s back — in an attempt to climb over the side of the pen and escape. Dominic started running away as the male pit bull escaped the pen.

The pit bull overtook Dominic, jumped on his back, and pulled him to the ground. The pit bull bit Dominic’s face, arm, and leg, and “started dragging [him] around the alley.” O’Halloran eventually pulled the dog off Dominic. By that time, Dominic was in the alley behind 225 Ridge Avenue, and the occupant of that residence called 911 for help. As a result of the attack, Dominic suffered injuries to his face, left arm, nose, and chest, and a torn femoral artery in his left leg, which required extensive surgery and physical therapy.

He spent 17 days in Johns Hopkins Hospital. The Soleskys filed a complaint in circuit court, asserting claims against Tracey sounding in negligence and strict liabili ³⁰¹ ty. 3 During discovery, the Soleskys noted the deposition of Tracey for March 19, 2009. On March 9, 2009, Tracey’s counsel informed the Soleskys via letter that Tracey was unable to attend the deposition, and offered that Schisler be deposed in her place. At the time, Tracey was 89 years old.

Tracey’s counsel provided the Soleskys with two letters from Tracey’s primary care physician stating that Tracey had “cardiac problems and can not tolerate undue stress,” and that the “stress of deposition questioning and court proceedings may exacerbate her medical conditions and may be detrimental to her health.” Counsel for the Soleskys agreed to depose Schisler, and indicated that the Soleskys would renew their request to depose Tracey if Sehisler’s answers were deemed insufficient. Tracey’s counsel did not move for a protective order to prevent Tracey from being deposed. After taking Schisler’s deposition, the Soleskys moved to compel Tracey’s attendance at a deposition, or, in the alternative, moved the court to sanction Tracey by entering a default judgment for her failure to attend the deposition scheduled for March 19, 2009. The court denied the Soleskys’ motion, stating: Considering the medical evidence and advice that the 89 year old Ms. Tracey is unable to appear at a deposition, the granting of this motion would be improvident.

Perhaps the movant will utilize the Maryland Rules to find another avenue to obtain information from and about Ms. Tracey. Because Tracey produced almost no documents, the Soleskys also moved for sanctions for Tracey’s alleged spoliation of documents. Counsel for Tracey opposed the motion and explained that, if there ever were any further documents, they had been lost. At an unspecified point in time, Tracey had stopped living on her own, and had moved into her daughter’s home.

Schisler testified in her deposition that the movers had lost many of her mother’s things during the move, including ³⁰² her leasing files. In addition, Schisler testified that she herself had taken photographs of 208 Burke Avenue, but that the digital camera on which these photographs were taken was broken, and she had thrown it away. Schisler’s deposition included the following exchange: Q. [Soleskys’ Counsel] Does your mother maintain a file of leases on properties that she’s ever owned? A. [Schisler] She did, but again, as I said earlier in the deposition, most of her files were lost in the move.

Q. How were the files maintained when she lived in her former home? A. I don’t know. Q. Did she have a file cabinet of any sort? A. She did have a file cabinet---- Q. ...

Did you take photographs of the pen that Mr. O’Halloran had built in the back of the property? A. I don’t know if I did or not. Q. What’s the status of accessing those photographs today, Miss Schisler? A. Nil to none.

Q. Why? A. Because I don’t know where they are. Q. You said your digital camera was broken. Your camera might be broken, but what might be stored in the memory card might well still be there.

A. But once the camera was broken, I threw it away. The Soleskys moved for the court to enter an order of default against Tracey, or, in the alternative, instruct the jury that it should infer that the destroyed evidence was unfavorable to her defense. The circuit court denied the Soleskys’ motion, stating: What the movant attempts to do is to equate the absence of records held by the landlord, and absence of correspondence, etc. with a failure to preserve which the movant sees ³⁰³ as equating to an intent to destroy evidence. This is not a permissible inference under the circumstances recited concerning the activities of the 89 year old not[-]all[-]that|_-]well Landlord....

This is a terrifying and tragic case where a child was severely injured by a pit-bull. However, there is simply no evidence that the Landlord kept prior leases which were thrown away or pictures or anything else which were discarded in connection with this law case or the incident of the attack. [Spoliation of] evidence has to have a nexus [and that] is not evident from the information presented by the movant in support of the motion. The case proceeded to a three day jury trial. In addition to presenting evidence, as outlined above, regarding the renewal of the dog owners’ lease, the Soleskys elicited testimony from neighbors who described the aggressive nature of the dogs.

Lisa Luntz was a neighbor who lived at 206 Burke Avenue during the years 2000 to 2009. She testified about her experiences with the dog which she described as the male pit bull that attacked Dominic: Q. [Soleskys’ counsel] And when you were living there— when you were living there, did you see the dogs in the pen at your neighbor’s home [208 Burke Avenue]? A. [Luntz] Yes. Q. And how often did you see the dogs in the pen?

A. When they were living at that home, I’d say almost daily unless maybe they were — maybe it was a lot of rain or something. Maybe we wouldn’t on that day, but pretty often. Q. And how did you feel about the dogs? [Tracey’s counsel] Objection. THE COURT: Rephrase that, please.

Q. [Soleskys’ counsel] How would the dogs act when they were in the pen? A. In terms of when both the male and female came along because originally there was just the female, so when the ³⁰⁴ male and female were together, originally when the male was a puppy, there was definitely barking, but I certainly didn’t feel threatened or they didn’t appear too aggressive. However, as soon as the male dog was getting older and bigger, that’s when we noticed frequent barking and jumping you know — remember, this time our daughter is about a year and a half, and we were definitely concerned at that point because anybody that walked out of our home or to our home from the back would experience that aggression from the dogs, particularly the male dog, so unnerving to say the least. Q. Did you change your behavior because of the dogs?

A. Absolutely. Q. What’d you do? A. We had to start going out our front door, using that as our entrance and exit. THE COURT: Pardon me.

You got to go slower. I didn’t hear your answer. A. I’m sorry. We had to use our front door as our main entrance and exit.

Q. [Soleskys’ counsel] And did you ever see a top or a covering put on the pen? A. No. Q. Do you know, I guess, roughly when you noticed the male dog being aggressive in the timeline of things? [Tracey’s counsel] I would object to the conclusion. THE COURT: Overruled. You can answer that.

A. I can only imagine the dog was a few months old, and he was certainly bigger than a puppy. (Emphasis added.) Michelle Bowers lived at 225 Ridge Avenue at the time the pit bull mauled Dominic. She came to Dominic’s aid, and dialed 9-1-1 after the attack. She testified about witnessing the pit bull’s aggressive behavior prior to the day of the attack: ³⁰⁵ Q. [Soleskys’ Counsel] And how did you know who — how did you know where the pit bull was kept that attacked Dominic?

A. [Bowers] Because I walk my dog in the alley, and I had walked past multiple times, and the dog has actually tried to jump the fence before and get to us, but the owner of the dog came to the window, did whatever command he did to tell the dog to get down. The dog got down, but needless to say, I stopped walking my dog in the alley. Q. Your dog, Daisy? A. My dog is Daisy, yes.

Q. And how often before Dominic was attacked had you walked past the pit bulls? A. I mean, what do you mean? I assume before. Q. How many times?

A. Oh, well, it only took that once with the dog outside for me to not walk the dog back there anymore. Q. What did the dog do when you and Daisy walked past him? A. A lot of growling, barking, and ultimately the dog had stood on the back of the female and was teeter tottering on top with his belly on top of the top of the fence. So all it would have taken is one extra little push, and that dog would have been over.

(Emphasis added.) At the conclusion of the Soleskys’ case, Tracey moved for judgment pursuant to Maryland Rule 2-519. In granting Tracey’s motion, the circuit court described the evidence presented to it as follows: So here I am having heard a couple days of testimony, a number of witnesses. The Plaintiff is asking that this Court continue this case on the theory of negligence on the part of Miss Tracey and admittance [sic] indicating she’s primarily negligent for failing to maintain the property in a safe condition and strict liability. ³⁰⁶ So before I get to that, I want to make sure that the parties and the record is clear as to what I see as the evidence at this point in time. Irene Solesky, the very lovely mother, loving mother of Dominic, her testimony was very compelling as to what happened to her son, and I felt pain for her.

I’m a father of four kids. It is noteworthy that she didn’t even know of the existence of the dogs and never saw the pen. So vis-a-vis liability, her testimony wasn’t helpful at all to his Court. Lisa Luntz, next door neighbor basically, someone moved in in 2007 — I think she was [i]n error, probably was of '06— but that’s neither here nor there, eventually [the tenant] had a male pit bull of [sic] puppies.

She saw the dogs in the pen almost daily. Certainly the male was barking. Sometimes the female was barking. They were jumping in the pen.

Anyone who walked by would experience their aggressiveness. That’s her language, that’s what they said, and she was concerned. She noted no top to the pen, no cover, and she noted that the male after growing past puppyhood became more and more aggressive in her words. She never saw the dog get out of the pen, never saw the dog bite anybody.

That’s the testimony from Miss Luntz. Michelle Bowers, formerly Mayer, lives off some next door — I think the other side of 208 — she watched the owner of the dog on a terrible day involved dragging away. She’s the one who called the police, made the 911 call. She saw the dog one time, maybe twice jumping up and down and was fearful as a result of that and stopped walking her dog past this pen.

(Emphasis added.) The court explained its basis for granting judgment in favor of Tracey as follows: No provision of the lease gave the landlord control over any portion of the rental premises. Thus the appellees had no duty to inspect the premises, no duty to inspect the premises. That’s significant to this Court. Then [the ³⁰⁷ case law goes] into the question of knowledge, and this is something that has bothered the Court because I acknowledge how hamstrung [the Soleskys’ counsel] must have felt and his clients that Mrs. Tracey never testified, couldn’t testify. [The court] did not compel her to testify for health reasons and whatever, 89 years old.

And I’m sympathetic to [the Soleskys’ counsel’s] argument that he couldn’t get to her knowledge because he couldn’t get to depose her, but there’s lots of ways, as counsel knows, to show knowledge on the part of somebody even without the language of the person. Language can be imputed to people. So what I was looking for is what knowledge could be imputed inferentially to Mrs. Tracey. ❖ * * Mrs. Tracey knew that there were two pit bulls, knew that there were two pit bulls. This Court cannot take that knowledge and stretch it out into knowledge that they were vicious.

The cases are clear that the knowledge that somebody’s keeping a pit bull acknowledged in the lease seen by her and her daughter does not ipso facto turn it into the knowledge of a vicious animal. Everybody goes to the act that the animal does like everybody and works backwards and says look how vicious the animal is. This Court can’t do that. I have to look at what the facts and circumstances were in front of Miss Tracey and look prospectively.

I can’t look at the conduct of the animal at the time he regrettably attacked Dominic and infer or assume that she knew he was vicious by the fact that there was a pen and by the fact that there [were] two dogs. I can’t do it. I won’t do it. And therefore, I do not feel that there is any evidence from which the jury could find as a fact that these animals were vicious or that Mrs. Tracey had a duty by virtue of some control over the leased premises.

(Emphasis added.) This timely appeal followed. ³⁰⁸ Discussion I. Denial of Motions for Sanctions The Soleskys argue that the circuit court erred in not sanctioning Tracey for faffing to appear at a deposition, and for her alleged spoliation of evidence. According to the Soleskys, the court’s action deprived them of evidence that may have helped establish Tracey’s knowledge of the danger posed by the pit bull. The Soleskys sought to depose Tracey on March 19, 2009. Prior to the scheduled date, Tracey’s counsel informed the Soleskys that Tracey would be unable to appear.

Tracey’s physician provided two letters explaining that Tracey had “cardiac problems and can not tolerate undue stress.” Counsel for the Soleskys agreed to depose Tracey’s daughter — who had drafted the lease agreement, had accompanied her mother during the January 2007 inspection of the premises, and had witnessed the signing of the pertinent lease agreement — in her mother’s stead. But the Soleskys “reserve[d] the right to later depose Mrs. Tracey if questions cannot or will not be answered [by the daughter].” The Soleskys subsequently moved to compel Tracey’s attendance at a deposition, and, in the alternative, asked that the court enter a default judgment against her. In denying the Soleskys’ requests, the court found that Tracey’s advanced age and uncontroverted medical problems were sufficient to excuse her from testifying at the deposition, and, subsequently, at trial. The circuit court has “great discretion” in deciding whether to impose discovery sanctions under Md. Rule 2-433.

See Rodriguez v. Clarke, 400 Md. 39, 56-57 , 926 A.2d 736 (2007). We perceive no abuse of discretion in the court’s decision to neither compel Tracey’s attendance nor sanction her, where her non-attendance was due to health issues explained to the Soleskys in advance of the scheduled deposition date. ³⁰⁹ In addition, the Soleskys moved for sanctions for alleged spoliation of documents, including photographs, relating to Tracey’s leasing of 208 Burke Avenue. In their motion, the Soleskys argued that Tracey had failed to provide such documents as “the lease file for the Subject Property, any records of payments, tenant or neighbor complaints and correspondence between” Tracey and her tenants, and between Tracey and her real estate agent. The Soleskys further alleged that Tracey’s daughter had destroyed the photographs which she had taken during the January 2007 inspection of the property.

The circuit court has the discretion to sanction a party for spoliation of evidence. Klupt v. Krongard, 126 Md.App. 179, 197-98 , 728 A.2d 727 (1999). In Klupt , this Court stated the test to be applied by the circuit court in determining whether the spoliation of evidence warrants a sanction. The threshold inquiry, id. at 199 , 728 A.2d 727 , is whether there was “[a]n act of destruction” of discoverable evidence on the part of the accused party.

By necessity, this inquiry begins after the movant shows that the evidence actually existed in the first place. Here, however, the circuit court noted that there was no evidence that relevant documents or pictures existed. Because the court was not clearly erroneous in finding that the Soleskys’ motion did not support a conclusion that unproduced documents having material relevance to this case had ever been in existence, the circuit court did not abuse its discretion in refusing to sanction Tracey for allegedly destroying evidence. Cf.

Cost v. State, 417 Md. 360, 369-71 , 10 A.3d 184 (2010) (noting that the destruction of evidence may give rise to a permissible inference that the evidence would have been unfavorable to the destroying party, and that a jury instruction on the issue may be appropriate).

II

The Landlord’s Duty A prima facie case of negligence, in general, requires proof of the following elements: “ ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached the duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximate ³¹⁰ ly resulted from the defendant’s breach of the duty.’ ” Shields v. Wagman, 350 Md. 666, 672 , 714 A.2d 881 (1998) (quoting BG & E v. Flippo, 348 Md. 680, 700 , 705 A.2d 1144 (1998)). At issue in this appeal is whether the first element is met— whether a jury could rationally conclude that Tracey had a duty to take reasonable actions to protect persons from the tenants’ pit bulls which Tracey expressly authorized the tenants to maintain on the property. The Maryland cases that have held landlords liable for injuries caused by an occupant’s dog have imposed a duty upon the landlord based upon two conditions: (1) the landlord’s awareness of the presence of a dog that has exhibited viciousness; and (2) some opportunity for the landlord to exert control over the presence of the dog. Matthews v. Amberwood, 351 Md. 544, 570 , 719 A.2d 119 (1998) (“where a landlord retained control over the matter of animals in the tenant’s apartment [by virtue of a ‘no pets’ clause in the lease], coupled with the knowledge of past vicious behavior by the animal, the extremely dangerous nature of pit bull dogs, and the foreseeability of harm to persons and property in the apartment complex, the jury was justified in finding that the landlord had a duty to the plaintiffs and that the duty was breached”); Shields, supra, 350 Md. at 690 , 714 A.2d 881 (“a landlord of commercial property may be held hable for injuries sustained in the common area and caused by a pit bull kept on the leased premises by one of the tenants where the landlord has knowledge of the potential danger in the common area and the ability to rid the premises of that danger by refusing to re-let the premises”).

See generally Danny R. Veilleux, Landlord’s Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant, 87 A.L.R.4th 1004 , 1012 (1991) (“The general rule regarding the liability of a landlord to a third person for an attack by a tenant’s animal on the leased premises appears to be that the landlord is not liable unless the landlord had knowledge of the animal’s presence and its dangerous tendencies, and had control of the premises or otherwise had the ³¹¹ ability to eliminate the danger by having the animal removed or confined.... ”). In Shields, supra, 350 Md. at 670 , 714 A.2d 881 , a tenant who rented space within a strip mall kept a pit bull named “Trouble” on the leased premises. After the tenant’s lease agreement expired, the landlord permitted the tenant to occupy the premises on a month-to-month basis. Another tenant informed the strip mall’s manager of Trouble’s “viciousness and the possible threat [which] Trouble’s presence posed.” Id. at 670 , 714 A.2d 881 .

Trouble subsequently escaped from the tenant’s leased space, and bit one of the strip mail’s customers on the leg. While that customer’s suit against the strip mail’s owner was being litigated in circuit court, Trouble bit another person, who also sued the owner of the strip mall, alleging negligence and strict liability. Both attacks by the pit bull occurred in the parking lot of the strip mall. On motions for judgment, the circuit court granted a judgment in favor of the landlord as to each of the two victims’ claims.

In a consolidated appeal, the Court of Appeals reversed the circuit court’s judgments, noting that the injuries occurred in a “common area,” and the owner “had knowledge of the potential danger” as well as “the ability to rid the premises of that danger by refusing to re-let the premises.” Id. at 668-69 , 714 A.2d 881 . In Shields , the “critical factor” of control was present because the landlord could have refused to re-let to the tenant unless the tenant took reasonable steps to ensure that Trouble did not present a danger to others. The Court of Appeals explained, id. at 682 , 714 A.2d 881 : “As each month went by, the premises were in effect re-let to [the tenant]. Thus, each time, the [landlord] had the opportunity to refuse to re-let the premises, thereby abating the danger posed by Trouble’s presence.” In addition, there was legally sufficient evidence of the landlord’s knowledge of the danger in Shields because: (1) “[t]here was ample indication that [the landlord] was aware of Trouble’s presence at the strip mall”; (2) “[t]here was also ³¹² evidence that Trouble was vicious”; and (3) “[t]here was evidence that [the landlord] knew that Trouble was vicious” because the landlord “made frequent visits to the premises,” and, “given the testimony of the other witnesses ... that they had often seen Trouble act viciously, a jury could conclude that [the landlord] also had the opportunity to observe Trouble’s viciousness.” Id. at 687-89 , 714 A.2d 881 .

Soon after Shields was decided, the Court of Appeals had another occasion to consider a landlord’s liability for injuries inflicted by an occupant’s pit bull in Matthews v. Amberwood, 351 Md. 544 , 719 A.2d 119 . In Matthews, a tenant allowed her boyfriend’s pit bull, named “Rampage,” to stay in her apartment, despite a clause in her lease agreement which stated that she was “[n]ot to have any pets on the premises.” Id. at 549, 719 A.2d 119 . Several of the landlord’s employees reported to the landlord’s manager “dangerous encounters involving the dog,” which they described as “vicious.” Rampage subsequently mauled a sixteen-month-old child to death while inside the tenant’s apartment. The child’s parents filed suit, asserting various legal theories, including negligence on the part of the landlord.

A jury returned a verdict in favor of the parents on the negligence claim, and the trial court denied the landlord’s motion for judgment notwithstanding the verdict. Id. at 552, 719 A.2d 119 . In affirming the circuit court’s judgment in favor of the child’s parents against the landlord, the Court of Appeals stated, id. at 557, 719 A.2d 119 : “[T]he principle that the landlord may have a duty with regard to matters within his control extends beyond common areas; it may be applicable to conditions in the leased premises.” The Court ruled that the landlord retained control over the dangerous condition (i.e., the presence of Rampage) “by virtue of the ‘no pets’ clause in the lease.” Id. at 558, 719 A.2d 119 . The Court stated that the landlord could have exerted control over the presence of the pit bull by enforcing the “no pets” clause: “The lease plainly stated that breach of the ‘no pets’ clause was a ‘default of the lease.’ Such a default would enable that landlord to bring a breach of lease action to terminate the tenancy.” Id. ³¹³ The landlord was on notice that the tenant was keeping Rampage in the apartment in violation of the no pets clause, and further knew of “dangerous incidents” involving Rampage.

Despite having knowledge of this dangerous condition on the leased premises, the landlord took no action to abate the danger, either by suing the tenant or threatening to sue if the tenant did not “get rid of the aggressive animal.” Id. The Court observed that the possibility of someone being attacked by Rampage “was entirely foreseeable.” Id. at 561, 719 A.2d 119 . In support of its conclusion that an attack by Rampage was foreseeable, the Court noted that the “extreme dangerousness of this breed ... is well recognized.” Id. The Court explained, id. at 561-63, 719 A.2d 119 : Thus, the foreseeability of harm in the present case was clear.

The extreme dangerousness of this breed, as it has evolved today, is well recognized. “Pit bulls as a breed are known to be extremely aggressive and have been bred as attack animals.” Giaculli v. Bright, 584 So.2d 187, 189 (Fla.App.1991). Indeed, it has been judicially noted that pit bull dogs “bite to kill without signal” (Starkey v. Township of Chester, 628 F.Supp. 196, 197 (E.D.Pa.1986)), are selectively bred to have very powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds. The “Pit Bull’s massive canine jaws can crush a victim with up to two thousand pounds (2,000) of pressure per square inch — three times that of a German Shepard or Doberman Pinscher.” State v. Peters, 534 So.2d 760, 764 (Fla.App.1988), review denied, 542 So.2d 1334 (Fla.1989). See also Hearn v. City of Overland Park, 244 Kan. 638, 650, 647 , 772 P.2d 758, 768, 765 , cert. denied[,] 493 U.S. 976 , 110 S.Ct. 500 , 107 L.Ed.2d 503 (1989) (“pit bull dogs represent a unique public health hazard ... [possessing] both the capacity for extraordinarily savage behavior ... [a] capacity for uniquely vicious attacks ... coupled with an unpredictable nature”[;] and . .. “of the 32 known human deaths in the United States due to dog attacks ... [in the period between July 1983 and April 1989], 23 were ³¹⁴ caused by attacks by pit bull dogs”).

Pit bull dogs have even been considered weapons. See State v. Livingston, 420 N.W.2d 223, 230 (Minn.Ct.App.1988) (for the purpose of first degree assault); People v. Garraway, 187 A.D.2d 761 , 589 N.Y.S.2d 942 (1992) (upholding conviction of pit bull’s owner of criminal possession of a weapon in the third degree). (Footnotes omitted.) 4 In Moore, supra, 161 Md.App. at 369 , 868 A.2d 954 , we cited Matthews for the proposition that “[p]it bulls, like cars, are ³¹⁵ ‘potentially dangerous.’ ‘The extreme dangerousness of this breed ... is well recognized,’ the Court of Appeals noted in Matthews v. Amberwood Associates, Ltd., 351 Md. [at 561, 719 A.2d 119 ].” Notwithstanding the Matthews Court’s judicial notice of the “extreme dangerousness of this breed” known as pit bulls, id. at 561, 719 A.2d 119 , this Court, in Ward v. Hartley, 168 Md.App. 209 , 220 n. 7, 895 A.2d 1111 , cert. denied, 394 Md. 310 , 905 A.2d 844 (2006), rejected the notion that a victim of a dog attack could establish a prima facie showing of dangerous propensity by simply proving that the attacking dog was a pit bull. In contrast to Shields and Matthews, we affirmed a summary judgment in favor of a landlord in Ward , where “[n]o provision of the lease gave the landlord control over any portion of the rental premises.” 168 Md.App. at 217 , 895 A.2d 1111 .

In Wan'd, a tenant’s pit bull bit a cab driver on the premises of the tenant’s rental home. The cab driver filed suit against the landlord, alleging negligence and strict liability. The circuit court granted the landlord’s motion for summary judgment, and this Court affirmed. In addition to the lack of evidence that the landlord retained control over the maintenance of pets on the premises, there was also no evidence whatsoever that the landlord knew that this particular dog was aggressive.

Id. at 219 , 895 A.2d 1111 . Notwithstanding the absence of any evidence of express knowledge on the part of the landlord, the plaintiff in the Ward case asked this Court to adopt a rule providing that mere proof that the biting dog is a “pit bull” — even in the absence of any other evidence of a history of aggressive behavior on the part of the dog' — satisfies ³¹⁶ the plaintiffs evidentiary burden of producing prima facie evidence of a dangerous condition. Writing for this Court, Judge Salmon explained, id. at 220 n. 7, 895 A.2d 1111 , that the plaintiff must do more than simply show that the attacking dog was a pit bull: The [plaintiff] invites us “to establish an evidentiary rule that harboring a ‘dog commonly known as a pit bull’ is prima facie evidence of ownership of a vicious dog.” We decline that invitation. First, it would be improper to do so because the appellees had no duty to inspect and discover Sammy’s presence.

Moreover, it is far from clear from this record that Sammy was “a pit bull dog.” His owners described him as part pit bull and part chow. But, even if we were to assume, arguendo, that Sammy was pure pit bull, it is very doubtful, as a factual matter, that all pit bulls (dogs) are dangerous. Under such circumstances, it would be highly improper to impose, by judicial fiat, a principle that everyone should know that “fact.” This Court’s opinion in Ward , therefore, established that, despite the widespread knowledge of the tendency of many pit bulls to be vicious — see Matthews, 351 Md. at 561 , 719 A.2d 119 , discussed above — in order to hold a landlord liable for injuries inflicted by a tenant’s dog, it is not enough to prove that the tenant was permitted to keep a pit bull on or about the leased premises. Rather, there must be some evidence (1) of the dangerous propensities of the particular dog at issue, (2) that the landlord had notice that the tenant’s dog posed a potential danger to humans, and (3) that the landlord had some right of control over the tenant’s maintenance of the dog.

This is true whether the attacking dog is a pit bull or a Shih Tzu. The Soleskys contend that, in contrast to the Ward case, their evidence did more than simply prove that the offending dog was a pit bull. They assert that Tracey, as the owner of property where a dangerous pit bull was housed, owed Dominic a duty because she and her daughter, who acted as her agent at the time of lease renewal: (a) had actual knowledge ³¹⁷ that her tenant was keeping two pit bulls in a small pen in the backyard of the premises; (b) personally inspected the property when the pit bulls were present and most likely observed the aggressiveness of the dogs, assuming the truth of the neighbors’ testimony that anybody who came near the dogs “would experience that aggression from the dogs, particularly the male dog, so unnerving to say the least”; (c) given the “dangerous propensities of the breed,” as noted in Matthews, should have foreseen that the presence of the pit bulls at that location posed a danger to passersby and children playing in the alley adjacent to the premises; (d) could have exercised control to abate the danger at the time of lease renewal; (e) rather than exerting control to abate the danger, expressly authorized the tenants to keep the pit bulls on the premises in an inadequate containment pen; and (f) in recognition of the danger presented by the tenants’ aggressive dogs, added a clause to the renewal lease indemnifying the landlord against liability arising from injuries inflicted by the dogs. Tracey, on the other hand, contends that she owed no duty because (a) there was no evidence that she had prior knowledge that the particular pit bull that injured Dominic was prone to violence; and (b) in any event, she did not have the authority to remove the pit bull from the premises to prevent the attack.

A. Knowledge As noted above, in order for a landlord to have any duty relative to a dangerous animal on the premises, there must be some evidence that the landlord knew of the dangerous condition created by the presence of the animal. Here, Tracey’s knowledge of the presence of the pit bulls is established by the fact that both of the lease agreements she entered into with O’Halloran and Cesky specifically allowed pit bulls to be kept on the premises. Moreover, the Soleskys elicited testimony that Tracey and her daughter inspected the premises on January 23, 2007, and the landlord saw the two pit bulls that were kept on the property. Tracey and her daughter also saw that there was a modest containment pen in ³¹⁸ the backyard.

Tracey’s daughter described what she saw during the inspection: Q. [Soleskys’ Counsel] Had you ever seen the chain link pen that Mr. O’Halloran had built in the backyard? A. [Schisler] Yeah. I think it was there the day we did this [ie., the inspection]. Q. So that when you signed [the January 23, 2007, lease agreement], you clearly knew that he had two dogs because you wrote that in the document, correct?

A. Right. Q. And you knew they were pit bulls because you typed that in here, correct? A. Correct. Q. The exterior lot that was owned by your mother on Burke Avenue, it was not fenced in, was it?

A. No. Q. Describe for me what you saw on the chain link type fencing that Mr. O’Halloran had created in the backyard on Burke Avenue? A. It was a very tall, kind of cube-shaped fence. Q. Was it the type of fencing that would allow a dog to run? A. Not a whole lot, no....

Q. Okay. How did you know that there were two pit bulls in the property when you prepared the contract, Exhibit 2 to the deposition? A. I don’t know how I kn[e]w that. I just kn[e]w that.

I guess my mother must have told me. Although Tracey does not dispute having knowledge that her tenants maintained two pit bulls on the property, she asserts that there was no evidence from which the jury could have found that she knew these particular pit bulls posed a potential threat of harming anyone. Tracey is correct that there is no direct evidence in the record