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Landlord Liability for Pit Bull Attacks after Tracey v. Solesky

Dorothy M. Tracey v. Anthony K. Solesky, et al., Court of Appeals of Maryland (Appeal No. 53, April 26, 2012)

Before Tracey v. Solesky, the general rule for dog bite claims against a landlord was that a plaintiff had to show that: (i) the landlord had control over the tenant having a dog, (ii) the dog was dangerous, and (iii) the landlord was aware that the dog had a history of dangerous behavior. The Tracey court modified a major element of that rule in cases where a pit bull or pit bull mix caused the injury. Plaintiffs now no longer need to show that the landlord had prior knowledge that the specific dog involved in the attack is dangerous -- it is enough that the landlord knew, or had reason to know, that the dog is a pit bull or a pit bull mix.

The Tracey court found that pit bull and pit bull mixes are “inherently dangerous” because of their “aggressive and vicious nature” and capability to inflict serious and fatal injuries. As a result, it is possible, and perhaps even likely, that a landlord with control over a tenant’s premises can now be held strictly liable for the harm a pit bull or mixed breed pit bull inflicts on a third party. This 4-3 decision by the Court of Appeals represents a significant change in Maryland law that may affect landlords as well as dog owners.

What is a landlord to do to protect himself or herself from liability? First and foremost, landlords should insure that they have adequate liability insurance coverage. It is possible that if there are a series of large monetary judgments against landlords for pit bull attacks as a result of Tracey, insurance companies may introduce exceptions in their policies for this type of case. Property owners should be aware of this possibility, read their policies carefully, and if necessary, consider paying the additional cost to make sure dog attacks, and specifically pit bull attacks, are a covered risk.

It is also good practice for property owners to encourage tenants to buy renters insurance covering the renter’s property and liability. Tenants are often unaware of the benefits of renters insurance (and of the risks of not having it), and they may not realize how inexpensive it can be. When new tenants move in, it may be helpful to provide a list of insurance companies or agents who offer renters insurance. The list should, however, include a disclaimer that the landlord is not endorsing any particular company or agent on the list.

Should landlords ban pit bulls and pit bull mixes outright in their leases? If a landlord is confident that tenants will carefully read the lease and faithfully adhere to its terms, banning pit bull and pit bull mixes (or possibly all dogs) would be recommended, because it would insure that tenants would not have those “inherently dangerous” animals on the premises. No pit bull or pit bull mix, no risk. Furthermore, the dissent in Tracey noted that under the new rule, the only corrective action a landlord could possibly take to avoid liability is to not allow possession of this specific breed of dog on the premises.

However, if a landlord becomes aware that a tenant has brought a pit bull to the premises in violation of a ban in the lease, but takes no action to enforce the lease’s dog ban provision, and if that dog attacks someone, there is Maryland case law suggesting the written ban will not help the landlord. The court in Tracey specifically pointed out that “a landlord who has the right and/or opportunity to prohibit such dogs on leased premises” and who “knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix...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.” [emphasis added] Control over the tenant’s ability to have a pit bull on the premises is thus an important factor in determining liability. Banning such dogs in the lease establishes that the landlord had control over the dog’s presence in the premises, so a written ban could work to the landlord’s detriment if that lease provision is violated.

Would the landlord avoid liability if the landlord prohibits pit bulls and pit bull mixes and makes reasonable, albeit unsuccessful, efforts to enforce the ban? It would certainly be preferable to prohibiting such dogs but not enforcing the ban. Matthews v. Amberwood Associates Limited Partnership, Inc. et al., 351 Md. 544; 719 A.2d 119 (1998), a leading case in landlord liability for pit bull attacks prior to Tracey, focused on the degree of control that a landlord had over the presence of a tenant’s dangerous pit bull that mauled a young child on the premises. In Matthews, the lease contained a clause banning all pets. The landlord was aware that the tenant had a pit bull in violation of the lease, yet it renewed the lease anyway and failed to enforce the no pets provision. Citing Bocchini v. Gorn Management Co., 69 Md. App. 1, 12, 515 A.2d 1179, 1185 (1986) the court noted the concern should be, “not so much on whether the landlord has approved the conduct of the tenant as whether he is in a position to correct or terminate it. Where, through lease provisions or otherwise, he has that ability, the thought is that he ought not to be able to escape his obligation... by refusing to exercise his authority.” The court in Matthews upheld the jury’s finding that landlord breached its duty of care to the plaintiff, and the fact that a no pets provision in the lease existed but was not enforced was a significant factor in holding the landlord liable.

In another pit bull mauling case, Ward v. Hartley, 168 Md. App. 209, 895 A.2d 1111 (2006), the Court of Special Appeals held the landlord was not liable for injuries caused by a pit bull’s attack on a cab driver who was dispatched to pick up the tenant. The court found it dispositive that nothing in the lease prevented the tenant from having a dog on the premises, and that absence showed the landlord had no control over the tenant having a dog. The court considered other factors, including lack of evidence that the landlord knew a pit bull was being kept on the premises, but the landlord’s lack of control over the premises was key. Since Tracey was decided solely on strict liability grounds, it did not reach the question of landlord’s control over tenant’s action, and thus it appears that these pre-Tracey decisions focusing on control may still be relied upon.

Although it sounds counterintuitive, these cases suggest that not including a dog (or pet) ban in the lease will make it less likely for a plaintiff in a dog bite case to win a judgment against a landlord, because it shows the landlord had no control over the existence of dogs on the premises. The opinion, however, did not provide clear guidance on how dog owners or property owners should act to prevent liability in an attack.

The dissent argues that the majority opinion provides an “unworkable” rule for mixed-breed pit bulls, because there is no definition of how much pit bull there must be in a dog to bring it within the strict liability edict. The dissent also noted that it will be difficult for the courts to determine whether a particular dog should be categorized as a pit bull, because there is no consent amongst experts for which breed of terrier is included in the term pit bull. We will look for future cases interpreting Tracey to see if these questions are clarified.


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