Dorothy Tracey v. Anthony K. Solesky and Irene Solesky (Pit Bull Case)
In the case of Dorothy Tracey v. Anthony K. Solesky and Irene Solesky (“Tracey v. Solesky”), the Maryland Court of Appeals held “that [if] the owner, or other person(s) who has the right to control the [purebred] pit bull’s presence on the subject premises (including a landlord who has [the authority] to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a [purebred] pit bull, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises.”[1] Although the case dealt specifically with the liability of a landlord, it was possible that the Court’s holding would be applicable to any “other person(s) who has the right to control the [purebred] pit bull’s presence on the subject premises,” including condominiums, homeowners associations and cooperatives (“community associations”), because, generally, such entities have the authority to regulate pets.
Thus, if the community association had the authority to regulate pets, but failed to prohibit purebred pit bulls from the property, the community association could be held strictly liable to the injured party for damages caused by such animals.
The Maryland General Assembly twice fails to overturn Tracey v. Solesky
As you may have been aware, the ruling in Tracey v. Solesky did not sit well with animal advocates in Maryland, including many members of the Maryland General Assembly. Legislation was immediately introduced during the Maryland General Assembly’s 2012 Special Session that would have abrogated Tracey v. Solesky, returning Maryland to the common law rule with respect to injuries caused by dogs regardless of breed. Despite support for the proposed legislation, the General Assembly failed to pass a law in 2012, which would have overturned Tracey v. Solesky. In 2013, despite further attempts to overturn Tracey v. Solesky, the State legislature was once again, unable to place a bill on the Governor’s desk for signature.
The Maryland General Assembly’s 2014 Legislative Session
In January, 2014, separate bills were introduced in the Maryland House of Delegates and Senate, respectively, each of which proposed to reverse the effect of Tracey v. Solesky. Although the House and Senate introduced their own bills, both bills contained substantially similar language. Furthermore, each bill was introduced as an Emergency Bill, meaning, that if either bill was passed, it would become law, effective immediately, once it was signed by the Governor.[2] The legislators were undeterred by their prior failures to undo Tracey v. Solesky. This time, the proposed emergency bills were reconciled by the House and Senate and passed with minimal opposition. On April 8, 2014, Governor O’Malley signed the adopted bill, making it Maryland law, effective immediately.
First and foremost, the new law supersedes the holding of the Maryland Court of Appeals in Tracey v. Solesky. Second, in addition to abrogating Tracey v. Solesky, the law reverts Maryland to the common law standard of liability relating to attacks by dogs against humans that existed on April 1, 2012, without regard to the breed or heritage of dog.[3] In that regard, common law then and now generally provides that, in an action against an owner of a dog for damages for personal injury or death caused by the dog, evidence that the dog previously caused the personal injury or death creates a rebuttable presumption that the owner knew or should have known that the dog had vicious or dangerous propensities. Absent such evidence, there is no presumption that the dog’s owner had or should have had such knowledge; so, the injured party must prove negligence without the benefit of that presumption. This is commonly referred to as the “first bite rule.” Therefore, among other things, the strict liability standard applicable to landlords and community associations that was created in Tracey v. Solesky has been eliminated.
We note that the new law has no effect on community associations within the District of Columbia. Instead, community associations located in the District of Columbia should refer to Section 8-1901, et seq. of the District of Columbia Code, which applies to all types of dogs and constitutes the standard for determining whether a dog is potentially dangerous, thereby codifying the “first bite rule” in the District of Columbia.
Furthermore, independent of the Maryland Court of Appeals’ actions in Tracey v. Solesky, since November 1, 1996, Prince George’s County has banned individuals from owning or harboring pit bulls within that County, with certain limited exceptions. The new law just adopted by the Maryland General Assembly does not affect that ban, so it remains applicable to community associations within Prince George’s County.
What this means for your Community Association
If your community association did not adopt a rule or amend its governing documents to prohibit purebred pit bull dogs, then no immediate action is necessary on your part. However, even if you did not adopt a rule or amend your documents, if your community becomes aware of a dog that is a nuisance or becomes a danger to the community, your governing documents may dictate that further action is necessary to abate the violation, including removing said dog from the community. This action would be necessary even if your community association’s liability to an individual injured by that animal was determined in accordance with the first bite rule. In the event that such enforcement action against a pet or pet owner is required, please contact us immediately, so that we may provide legal guidance that is specific and appropriate to your community.
Notwithstanding the recently adopted Maryland law, it remains possible that a purebred pit bull dog—or any dog for that matter—could injure someone at any time. There have been cases reported recently in the press of injuries by such animals, including to members of the family who owned the dog, and even where the dog exhibited no prior history of violent behavior.[4] Therefore, if your community association has adopted a rule or amended its governing documents to prohibit purebred pit bulls, you may continue to rely upon the authority created by any such rule or amendment to support enforcement action that includes the removal of a purebred pit bull if the community still deems those dogs to be a nuisance or a danger to the community. As private property owners, you are permitted by law to adopt and enforce restrictive covenants or rules that are more restrictive than those that may apply generally within the state or county in which your association is located.
Conversely, if your community association would like to remove any prohibition that you may have adopted in the wake of Tracey v. Solesky, you may do so; but, in order to accomplish your objective, it will be necessary to pass a resolution rescinding the previously adopted rule, or to amend your governing documents to remove the prohibition.[5]
[1] The case involved a landlord whose tenant owned a pit bull that injured a minor.
[2] Typically, laws passed by the Maryland General Assembly do not become effective prior to October 1st of the year in which they are adopted.
[3] The new law also states that the owner of a dog is liable for any injury, death, or loss to person or property that is caused by the dog, while the dog is running at large, unless the injury, death, or loss was caused to the body or property of a person who was: 1. Committing or attempting to commit a trespass or other criminal offense on the property of the owner; 2. Committing or attempting to commit a criminal offense against any person; or, 3. Teasing, tormenting, abusing, or provoking the dog.
[4] As reported by the Baltimore Sun on April 27, 2014, a 2-year-old boy in Essex was reportedly attacked by the family’s pit bull dog and sustained serious, but non-life-threatening injuries.
[5] For the reasons explained herein, we do not recommend rescinding any adopted rule or amendment if your community association is located within Prince George’s County. In such case, we recommend that you retain the prohibition against purebred pit bulls to comply with binding County law.