Wednesday, May 9, 2012

Court bites dog?

George Carlin observed that "dogs lead a nice life, you never see a dog with a wristwatch." But Maryland's Pitbull population is on the clock, now, after the highest court branded it an "inherently dangerous breed" and thus triggered a series of commercial decisions that just may operate to bar Pitbulls from many rental or owner-occupied communities.

It's right here, in Tracey v. Soslesky, an April 26, 2012 decision from Maryland's highest court, the Court of Appeals. The gory facts and dog bite stats are there, going back to 1916. it's worth a read.

Until now, Maryland was a "one bite" state.  A dog (the individual pooch, and not the entire breed) was presumed to be warm and cuddly until it's actions demonstrated otherwise.  It was the classic "don't bite, don't tell" policy. And after one act of aggression toward humans, the dog earned a label, and it's owner became fully noticed of the animal's violent tendancy. From that point, the owner bears liability for the consequences of that dog's future violent conduct, be it a nip on the butt of the a neighborhood boy on a bike (I got skinned knees, and a new pair of pants), four holes in the back of the thigh (but I still love my neighbor, and he voluntarily put the dog down since he'd already been sued the prior year by a jogger who was chewed by the dog's mate--the man didn't want to hinder his dog's zest for life with training, leashes or muzzles--and now it's dead), or the severed sword hand of a rival knight from House Lannister (OK, that's a fictional Dire Wolf from Game of Thrones).
With this decision, the Pitbull (the entire breed, including half-breeds, and not individual pups) has been singled out as prone to bite. Always. No questions. No exceptions. Expect it. Plan for it. Better yet, buy a pet rock.
And please note that I make reference to the animal as "it."  I do enjoy canines- I've owned them, loved them, and been bowled over, slobbered upon and licked within an inch of my life by them--but I don't imbue them with humanity, no more than I would make reference to my dining room chairs as "him" and "her," and they have dinner with me, every night. I say this because much of the public debate surrounding this decision is unnecessarily ratcheted up several notches, well into the "shrill" range (you need a dog's sense of hearing to discern some of it),  because the domesticated animal is deemed "family" by so many. My dear wife has even referred to us as ourown dog/cat's "parents," which is always a nice seque into a lively discussion at my house--usually with the dear animal on my lap or reclining at my feet. They can keep me warm, but I'm not sending them to college. And most everything that can scratch and claw has been pulled or trimmed off of them, and any and all baby making equipment has been neutralized.  (Wow, perhaps we should treat our kids more like pets? hmmmm.)
On one law listserve, the on-line debate generated over 50 long, strident, and sometimes nasty posts on the subject of "dog prejudice" in a two hour period. One post captures the core issue, and it's not about prejudice against a species, or a breed, or even a preference not to lose a limb while jogging in the park.  The core issue is the civility or lack of civility of the property owner.  Attorney Michael Gross, of Silver Spring put it best, and I am pleased to share his well considered words, here:
I do not suggest that anyone should lack the liberty to own any particular breed of dog; provided that they raise it in an appropriate manner.  What I was more interested in is the state of mind of the owner.  I am wondering whether owning such an animal reflects a sort of disrespect of others, or as it may be put, bad manners.
Are we becoming an uncivilized civilization?  At the risk of setting myself up as an example; when I was growing up it became clear that I should never cut my lawn on the weekend before noon, lest I impose on my neighbors’ peace and quiet.  I should not turn the volume on my car stereo up to maximum and roll down my windows in stopped traffic.  I should never take the last of any item on the store shelf if I didn't really need it.  Turning more towards the legal, I was trained never to serve discovery for the major purpose of being burdensome, nor engage in motions practice for the same purpose. (The point here is not to quibble over the permissible extent of discovery or motions, let's move on.)It would seem to me that owning a dog which is, rightfully or wrongfully, perceived as a danger by others, is simply bad manners.  (Those in fear of personal injury by intruders in the night get a pass here.)  Are we as a society so concerned about rights, that we have lost touch with an ethic that suggests we take the interests of others into account in exercising those rights?

I read this opinion dispassionately, as a property owner. Or, as someone who must advise other property owners on the risk of owning or maintaining a particular bit of property in their house, apartment, condo, business, or public place.  It also informs me that there are certain places I will not bike, walk or jog, or let a small child roam.
If the decision stands (and there is a move to overturn the decision by legislative fiat- imagine if the same vigor was directed at decisions adverse to civil rights, defendant's rights, and other decisions that restrict or denigrate the quality of human life!), landlords may further restrict their pet policies in residential and commercial leases.  And if the landlords won't, they may be compelled by their general liability carriers. The same goes for homeowner and condo associations, and commercial landlords. 
With this decision, what's to stop any forward thinking town in Maryland from just outlawing Pitbulls within their corporate limits for the protection of it's residents? Is that toothy-muscle-on-a-leash that is straining to take in the delicious aroma of your toddler-in-a-carriage  any less dangerous than the cancerous second hand smoke our government has largely outlawed? Why not! According to the Court of Appeals, we are all on notice. The Pitbull is prone to bite. Always. No questions. No exceptions. Expect it. Plan for it.
UPDATE-MAY 14, 2012- House Bill 1808 was introduced to make dog bite liability in Maryland conditioned on whether the person being sued was "responsible" for exercising control over the canine property, and was negligent in exercising that control. The Bill was introduced during the Special Session intended to address the budget.  It is very unlikely that this Bill will pass through the committee process during the Special Session. It may well arise, again, when the Legislature reconvenes.

The Bill is sponsored by Delegates Cardin, Bromwell, Carr, Feldman, Frush, Guzzone, Haddaway-Riccio, Hogan, Kipke, Luedtke, A. Miller, Morhaim, Reznik, Stocksdale and F. TurnerHave an opinion?  Let'em know!  Perhaps bark once for "yea," and twice for "nay."

I don't think the language of this brief provision will effectively overturn the Court of Appeals case, since it does not address the judicial finding that Pitbulls are "inherently dangerous."  Calling the standard of care "negligence," alone, won't lessen the standard of care, much, if at all.
Woof, woof.
Post Script June 15, 2012:  This continued reporting on Pit Bull attacks is sure to keep the kettle boiling.  Here's today's "death of a child" report from California--3 Pitbulls + 1 young child= death.
UPDATE- July 15, 2012-The Court's ruling has been stayed, pending further decision on a motion to reconsider, filed in the Court of Appeals. The ABAJournal has a nice summary of the current status, here. So, buy Fido dog food for a few more weeks, at least.

Update- August 6, 2012- The American Bar Association House of Delegates has authorized a resolution urging passage of "breed neutral" laws concerning Pit Bulls. Here is a summary and link to the resolution. Of particular interestis citation to the Ohio legislature, and it's repeal of a law that was  directed at Pit Bulls, as a distinct threat.