In recent years Maryland law has undergone changes in the laws that hold dog owners responsible when their dog attacks someone. Prior to a landmark Court of Appeals case in 2012, Tracy v. Soleskey, the law was unofficially known as the “one bite rule” because it was said a dog got one free bite before the owner would be held responsible. The law did not actually require that the dog had bitten someone previously, but a dog attack victim was required to prove that the dog’s owner had knowledge that the dog was dangerous, and the easiest way to prove that was if the dog had previously bitten someone. This often led to dog owners avoiding responsibility for the actions of their dogs, as absent a prior documented incident where someone was attacked by the dog there is often scant evidence to prove that the dog had previously acted aggressively. Thus, dogs often got “one free bite” before their owner was held responsible. In other cases, such as a dog running loose, a claimant could prevail on an alternative theory of negligence that did not require proof of a previous bite. In those cases, it could be shown that the dog owner was negligent simply for allowing the dog to run loose.
The law was dramatically changed after the 2012 Tracy v. Solesky ruling, but only with regard to pit bulls. In Tracy, the Court of Appeals, Maryland’s highest court, ruled that owners of pit bull dogs and their landlords would be held strictly liable for injuries caused by the pit bull. This means that if a pit bull hurts someone the owner (and their landlord if they have one) would be held responsible. The Court decided this way using evidence that pit bulls could be deemed to be inherently dangerous because when they bite someone the injuries are often devastating due to their powerful jaws. The Tracy decision touched off a firestorm of criticism from dog groups, who claimed that the law would lead to discrimination against pit bulls and would lead to landlords refusing to rent to people who owned them.
The Maryland Association for Justice (MAJ), the group that represents the interests of people injured by negligence, proposed a sensible solution to the problem created by the Tracy decision, that being it singled out pit bulls and their owners. MAJ proposed ending the breed specific aspect of the law by creating strict liability for all dog owners, regardless of breed. This would mean that if you own a dog, and it hurts someone, you are held responsible, regardless of whether the dog had previously attacked someone or been aggressive. There were also important exceptions in the proposed law, including no liability if a person who is trespassing is bitten by a dog. MAJ’s proposed law was lobbied against by insurance companies, dog owners, and landlord associations, who did not want to be held responsible when a dog injures someone. Senior Partner Bruce Plaxen testified in Annapolis on behalf of dog bite victims and MAJ in favor of this bill.
The Maryland legislature came up with a compromise, passing a bill that shifts the burden of proof from the plaintiff to the defendant to prove that the dog was not dangerous prior to attacking someone. Prior to this law the burden was on the injured person to prove the dog was dangerous prior to the attack. Now the dog owner must prove that the dog was not dangerous prior to the attack. While the law appears on paper to be helpful to dog bite victims, in practice it is not clear if it will provide any benefit at all, as it is unclear what evidence is necessary for dog owners to rebut the presumption that their dog was dangerous. If all the dog owner has to do is testify the dog never bit anyone or acted aggressively before attacking the victim, then dog bite victims are in the same place they were under the old law.
This brings us to the title of this post. As an attorney who represents dog bite victims, I am concerned the law is really not any different than it was previously. If all the dog owner has to do is say the dog never bit anyone, then we are back to where we were before, trying to prove the dog was dangerous before it attacked the victim. This is often difficult, because unless there are prior animal control or police reports for the dog there is often no evidence about the dog’s prior behavior. The evidence that is required for dog owners to rebut the presumption that their dog is dangerous will have to be determined by the courts as dog bite cases continue to be tried under the new law. Hopefully judges will require more than the dog owner’s word to rebut the presumption, but that remains to be seen.