Tracey v. Solesky

DALE R. CATHELL, (Retired, Specially Assigned), J. In Maryland the vicious mauling of young children by pit bulls occurred as early as 1916. 1 Bachman v. Clark, 128 Md. 245 , 97 A. 440 (1916). In that case, a ten-year-old boy, John L. Clark, was playing on the north side of a street when a pit ⁶³⁰ bull (“bull terrier”) came across the street from its owner’s property and attacked him, inflicting serious injuries. The pit bull refused to release the boy until a witness picked up a “scantling” 2 and struck the dog, killing it. Similar to the testimony in the present case by the boy’s mother, in that old case the mother described the aftermath of the attack on her child as follows: ... [H]e was unconscious, in such a condition that she did not know whether he was living or dead ...

Blood all over him. Id. at 247 , 97 A. at 440 . 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. 3 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 first two attacks to reach this Court were reported in Shields v. Wagman, et al., 350 Md. 666 , 714 A.2d 881 (1998), 4 where a pit bull attacked a business invitee at a strip shopping center and later attacked a tenant.

Both attacks took place in the parking area of the strip-shopping center owned and maintained by the landlord. The pit bull was kept by its owner, also a tenant who operated an automobile repair business on leased premises. ⁶³¹ In the first instance, Ms. Shields took her car to the parking area for repairs, and as she exited her car and approached the leased premises, the pit bull broke through the door and attacked her, inflicting serious injuries. Id., at 670 , 714 A.2d at 883 . 5 In the second instance, the pit bull was not restrained and chased another tenant in the shopping center, Mr. Johnson, onto the roof of a car in the parking lot and attacked him, again inflicting serious injuries. As a result, Mr. Johnson had several surgeries to his arm, lost sensation in that arm, and was impaired in his ability to perform certain duties related to his job.

Id., at 671 , 714 A.2d at 883 . This Court held that the landlord in that case had actual knowledge that the pit bull (whose name was Trouble) was dangerous and had the right to cause the removal of the pit bull from the premises but failed to do so, and in not so doing, had negligently allowed the attacks to occur on the parking premises controlled by the landlord. Id., at 690 , 714 A.2d at 892-893 . The third case decided by this Court just two months later, Matthews v. Amberwood Associates Limited Partnership, Inc., 351 Md. 544 , 719 A.2d 119 (1998), involved a situation where a pit bull (named Rampage) attacked a child inside a tenant’s apartment killing the child.

We found that because the landlord’s employees had reported Rampage’s aggressiveness and viciousness on prior occasions to management personnel, that knowledge was imputed to the landlord even though the attack occurred in the premises leased to the tenant. Id., at 588-59 , 719 A.2d at 125-26 . Accordingly, because the landlord had the right not to renew the lease or to remove the pit bull under a “no pets” provision in the lease, he could be held liable. Ibid.

In Moore et al. v. Myers, 161 Md.App. 349 , 868 A.2d 954 (2005), a case originating out of Prince Georges County, the Court of Special Appeals was faced with a factual situation in which an unleashed and unrestrained pit bull chased a twelve ⁶³² year old girl into a street where she was run over by an automobile and suffered two broken arms, a broken leg, and a fractured jaw. 6 At the time, Prince Georges County had adopted statutes specific to pit bulls that, among other things, required owners of pit bulls to keep the dogs in enclosures or leashed at all times. Id., at 364 , 868 A.2d at 962 . Based primarily on a violation of those statutes, the Court of Special Appeals held the owner of the pit bull liable. Id., at 367 , 868 A.2d at 964 .

In Ward v. Hartley, 168 Md.App. 209 , 895 A.2d 1111 (2006) (in which the relevant party in the lawsuit was the landlord), a taxi driver was dispatched to pick up a passenger for transportation to the Kennedy Kreiger Institute. When he knocked on the door to the leased premises, he heard someone tell children not to open the door. He stepped back and at the same time a child opened the door and a pit bull came charging out as he heard someone yell “Get the dog.” He hit the pit bull with some rolled-up paper he had in his hand and the pit bull grabbed his foot. He then ran to his cab with the pit bull still holding onto his foot and, with the pit bull still attached, climbed on top of the car.

A police car appeared on the scene, and as it did, two boys ran out of the house laughing and pulled the dog off of the cabdriver’s foot. The cab driver’s foot was severely injured and required surgery. Id., at 213 , 895 A.2d at 1113 . There was no evidence in the case that the landlord knew that a pit bull was being kept on the premises until he heard about the incident with the cab driver.

The Court of Special Appeals, in holding for the landlord, opined: “Keeping a pit bull did not violate any covenant of the lease, nor did it violate any law or ordinance. No provision of the lease gave the landlord control over any portion of the rental premises. Thus, appellees had no duty to inspect the premises.” Id., at 217 , 895 A.2d at 1115 . The present case involves an attack by a pit bull named Clifford.

Notwithstanding his relatively benign name, Clifford ⁶³³ possessed the aggressive and vicious characteristics of both Trouble and Rampage. He escaped twice from an obviously inadequate small pen 7 and attacked at least two boys at different times on the same day. 8 The second young boy was Dominic Solesky. As a result of his mauling by Clifford, Dominic initially sustained life threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, during which time he underwent additional surgeries, and then spent a year in rehabilitation. 9 Here, the trial court granted a judgment for the defendant landlord at the close of the Plaintiffs 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 The plaintiff took an appeal to the Court of Special Appeals ⁶³⁴ and that court reversed the trial court, finding that the evidence had been sufficient to create a valid jury issue as to the extent of the landlord’s knowledge as to Clifford’s dangerousness in respect to the then common law standards in dog attack negligence cases. Appellant, the landlord, presented several questions in her brief before this Court. 1. Is the harboring of American Staffordshire Terriers (more commonly known as “pit bulls”) by tenants an inherently dangerous activity for which landlords may be held strictly liable? 2. Does Maryland jurisprudence permit an inference of knowledge of prior vicious propensities of a domestic animal by a landlord based upon the existence of an exculpatory clause in a residential lease concerning bodily injury caused by the tenant’s pets? 3.

Does Maryland jurisprudence permit an inference of knowledge of prior vicious propensities of a domestic animal by a landlord whose tenant harbors the animal in leased premises based upon subjective conclusions as to the animal’s temperament of neighbors who have limited observations of the animal’s behavior which was never conveyed to the landlord? 4. May a landlord be held liable for injuries caused by a tenant’s domestic animal due to the failure to require reasonable confinement of a domestic animal in the leased premises? 5. Should landlords that allow tenants to harbor dangerous or vicious animals in the leased premises be held liable in tort under any circumstances when the tenant fails to properly control its pet? 6. Should this Court’s prior rulings in Mathews [Mat thews] v. Amberwood Associates Ltd. P’ship, Inc., 351 Md. 544 [ 719 A.2d 119 ] (1998) and Shields v. Wagman, 350 Md. 666 [ 714 A.2d 881 ] (1998) be overturned or significantly modified? ⁶³⁵ The appellee, cross-petitioner, Solesky, presents six questions in his brief.

I. After Shields and Matthews, was the inherently dangerous/vicious nature of pit bulls known to Maryland landlords?

II

Did Matthews impose a duty upon landlords who rent to tenants with pit bulls in a residential neighborhood to act with reasonable care in requiring appropriate housing or storage of the two pit bulls outside the house?

III

Did the Court of Special Appeals err in upholding the Circuit Court’s refusal to sanction a party/defendant who refused to appear for a duly noted deposition and never sought a Protective Order when the knowledge of the defendant is essential to proving the elements of the tort claim against her?

IV

Did the Court of Special Appeals err in upholding the Circuit Court’s refusal to sanction defendant for spoilation of evidence where defendant landlord had taken photographs of the leased premises on the day of reletting the premises to the tenant owner of two pit bulls and later refused to produce those photographs in discovery? V. Did the Lower Courts err in refusing to admit forty-nine Baltimore Sun articles regarding pit bull attacks preceding the attack on Dominic? We granted both the petition and cross petition. Tracey v. Solesky, 421 Md. 192 , 25 A.3d 1025 (2011).

We answer appellant’s first question in the affirmative and establish in this case, and prospectively, a strict liability standard in respect to the owning, harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles that were previously applicable to attacks by such dogs. We shall direct the Court of Special Appeals to reverse the trial court and send this case back to that court. 10 Because of our imposition of certain breed-specific strict liability standards in this case, it is unnecessary ⁶³⁶ to address appellant’s other questions. It is also unnecessary to address appellee/cross-petitioner’s complaints as to the trial judge’s failure to permit him to depose the landlord and to the trial judge’s failure to allow him to introduce numerous newspaper articles all related to appellee’s attempt to establish knowledge on the part of the landlord as to the aggressiveness and viciousness of Clifford. 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. 11 The Old Common Law In the early Maryland case of Goode v. Martin, 57 Md. 606, 609-612 (1882), which involved an attack by a Newfoundland dog and a “small terrier,” 12 the Court stated certain infer ⁶³⁷ enees that could then be made against an owner in a case such as the present case. There the Court first said: “In order to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that the owner had knowledge that he was fierce.

To this effect are all the authorities, [citations omitted].” But later in its opinion, the Court stated: But we think the appellant is right in his contention that the defendant may be presumed to have knowledge that his dogs were fierce and dangerous, from the fact that he was accustomed to keep them tied during the day-time. In Perry v. Jones, 1 Espinasse, 452, Lord KENYON held from the fact that the owner kept his dog tied and did not permit him to run at large, it must be presumed that he had knowledge that the dog was vicious, unruly and not safe to be permitted to go abroad.... So, in the case now before us, we think the fact that the appellee kept his dogs tied during the day and let them loose at night, furnishes proof that he knew it would endanger his neighbors to permit them to be unfastened.... The evidence ought to be left to the jury as tending to prove the temper and vicious disposition of the dogs, and the knowledge of the appellees thereto, and it was therefore error in the Judge of the Circuit Court to take the case from the jury, and the judgment appealed from will be reversed and a new trial be awarded. 13 Martin, 57 Md. at 611-12.

In Bachman v. Clark, supra, we stated the then common law standard in relation to dog attacks: ⁶³⁸ At common law, the owner of a dog is not liable for injuries caused by it, unless it has a vicious propensity and notice of that fact is brought home to him. But when it is once established that the dog is of a vicious nature, and that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal naturally ferocious would be subject to, and proof of negligence on the part of the owner is unnecessary. This is the recognized and well settled law of this state [citation omitted]. Clark, 128 Md. at 247 , 97 A. at 441 (citation omitted).

This standard has been acknowledged and sometimes criticized in treatises, nonetheless, it has generally persisted. See Harper, James and Gray on Torts, Section 14.9, at 291 (3rd ed., 2007) This rule has been criticized as to actual damage done by animals with known propensities therefore, such as attacks on birds and poultry by cats, but any such change in the law will most likely come from legislative enactment, although there is no necessary reason to prevent courts from making such modifications without the aid of a statute [emphasis added]. Harper, further comments that: The common law has for many years made a distinction between animals ferae naturae and animals mansuetae natura, or between wild animals and domestic animals. It thus appears that one keeps dangerous animals at one’s peril, that is, at strict liability, but otherwise as to animals ‘not dangerous.’ As to the former class, it is no defense that the keeper employed reasonable care, or even a high degree of diligence to prevent their escape.

Liability is independent of any fault on the part of the owner. He may keep such animals, if he will, but if he has notice of their danger to human beings ..., he cannot keep them, ⁶³⁹ even carefully, at the risk of others. He has introduced an unusual danger into the community and he does so at his own risk. Id. at Section 14.11. 14 Modifying the Common Law In Ireland v. State, 310 Md. 328, 331-332 , 529 A.2d 365, 365-366 (1987) we discussed the basic framework of the Court’s role in establishing and modifying common law rules: The determination of the nature of the common law as it existed in England in 1776, and as it then prevailed in Maryland either practically or potentially, and the determination of what part of the common law is consistent with the spirit of Maryland’s Constitution and her political institutions, are to be made by this Court. “Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the Courts of Justice, and is to be decided by them.

The common law, like our Acts of Assembly, are subject to control and modification of the Legislature, and may be abrogated, or changed as the ⁶⁴⁰ General Assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the State, and what has become obsolete from non-user or other cause. State v. Buchanan, 5 H. & J. 317, 365-66 (1821).” Because of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in the light of modern circumstances or increased knowledge.... Id. at 331-332 , 529 A.2d at 366 . More recently, in Mayor & City Council of Baltimore, et al. v. Clark, 404 Md. 13 , 944 A.2d 1122 (2008) in a case involving the termination of a police official in Baltimore City we held that, “It is well settled that, where the General Assembly has announced public policy, 15 the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change the common law [italics added].” Id. at 38 , 944 A.2d at 1135 .

See also Price v. State, 405 Md. 10, 32 , 949 A.2d 619, 630 (2008) (“... This Court has also characterized a jury’s verdict of guilty, which is flatly inconsistent with the jury’s verdict of not guilty on another count as “illogical” and “contrary to law.” There is no reasonable basis for reversing the inconsistent verdict of “liability” but not reversing the inconsistent verdict of “guilty”); Bozman v. Bozman, 376 Md. 461 , 830 A.2d 450 (2003) (“... .We agree with the Court of Special Appeals, that the interspousal immunity doctrine is an antiquated rule of law which, in our view, runs counter to prevailing societal norms and therefore has lived out its usefulness. According, we shall answer the petitioner’s first question in the affirmative and, so, complete the abrogation of the doctrine from the common ⁶⁴¹ law of this State ... ”). And see Bowden v. Caldor, Inc. et al., 350 Md. 4, 27 , 710 A.2d 267, 277 (1998): ...

Consequently, the legal principles discussed below, applicable to judicial review of punitive damage awards for excessiveness, are set forth as principles of Maryland Common Law. Although some of these principles may be the same as requirements by other courts as a matter of constitutional law, we have no reason at this time to consider minimum constitutional requirements in this area. Moreover, some of the principles set forth below have a foundation in prior Maryland case law, whereas others do not. Nonetheless, as often pointed out, this Court has authority under the Maryland Constitution to change the Common law.

We recently spoke to the application of common law modifications in our case of Polakoff, et al. v. Turner, 385 Md. 467, 484 , 869 A.2d 837, 850 (2005). There we said: “Generally, changes in the common law are applied prospectively, as well as to the case triggering the change in the common law.” See also Owens-Illinois, Inc. v. William Zenobia, Sr. et al., 325 Md. 420, 469-470 , 601 A.2d 633, 657-658 (1992). There we said: We now turn to the matter of the effective date of our holdings with respect to punitive damages. Until today, under Maryland common law a plaintiff in a tort case was required to establish by a preponderance of the evidence those circumstances which would authorize the allowance of an award for punitive damages.

By changing this standard of proof to clear and convincing evidence, we have not overruled any particular Maryland cases on the ground they were wrongly decided at the time. Instead we have exercised our constitutional authority to change the common law. [Citations omitted.] Recently, in Julian v. Christopher, supra, 320 Md. [1] at 10-11, 575 A.2d [735] at 739 [ (1990) ], we reiterated the principle that “[o]rdinarily decisions which change the common law apply prospectively, as well as to the litigants ⁶⁴² before the court.” Thus in Boblitz v. Boblitz,[ 16 ] we changed the common law by abrogating interspousal immunity in negligence cases and held that the change was applicable to the case then before the Court and to causes of action accruing after the date of our decision. When, however, a change in the common law does not affect the elements of a cause of action[ 17 ] but relates to requirements at a trial, we have held that the change applies “to cases where the trials ... commence after the date of our opinion in the present case.” Therefore, the “clear and convincing” standard of proof for punitive damages in tort cases applies to the instant case, ... and to all trials commencing and trials in progress on or after the date this opinion is filed. Strict Liability Standards in Pit Bull Attack Cases We began our modification of the old common-law rule with respect to dog attack cases with our strong dicta in Matthews, supra, highlighting the particular characteristics of pit bulls and cross-bred pit bulls.

There we explained the difference between pit bulls and other breeds of dogs when we noted: 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 powerful jaws, high insensitivity to pain, ⁶⁴³ 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 Sheppard 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, 722 [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 health hazard ... [possessing] both the capacity for extraordinarily savage behavior ... [a] capacity for uniquely vicious attacks ... coupled with an unpredictable nature” ... and that “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 caused by attacks by pit bull dogs.” Pit bull dogs have even been considered as weapons. See State v. Livingston, 420 N.W.2d 230 [223] (Minn.App.1998) (for the purpose of first degree murder); People v. Garraway, 187 A.D.2d 761 , 589 N.Y.S.2d 942 (1992) (upholding conviction of pit bull’s owner of criminal weapon in the third degree). .... And the Albuquerque Humane Society reported that no other breed of dog has “ever caused the kinds of injuries or exhibited the aggressive behavior shown by American Pit Bull Terriers ... [and the humane society does not] adopt out pit bull dogs because of their potential for attacks on other animals and people”); [some citations in this paragraph omitted], Matthews, 351 Md. at 562 -63 & n. 4, 719 A.2d at 127 -128 & n. 4 (emphasis added). However, we also stated in Matthews that: ....

Under the present circumstances, however, where a landlord retained control over the matter of animals in the tenant’s apartment, coupled with the knowledge of past vicious behavior by the animal, the extremely dangerous ⁶⁴⁴ 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. The following principle set forth in Prosser and Keeton on the Law of Torts, Sec. 4 at 25 (5th ed.1984), is applicable here: ‘The ‘prophylactic’ factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with the compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts are known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm.

Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.’ Id. at 570 , 719 A.2d at 131-132 (emphasis added). Because the issue of strict liability was not expressly raised on appeal, we decided Matthews on regular common law negligence requirements. However, the