Solesky v. Tracey

• Decision Date: 05 April 2011
• Docket Number: Sept. Term,No. 2207,2009.,2207
• Citation: 198 Md.App. 292,17 A.3d 718
• Parties: Anthony K. SOLESKY, et al.v.Dorothy M. TRACEY.
• Court: Court of Special Appeals of Maryland

198 Md.App. 292

17 A.3d 718

Anthony K. SOLESKY, et al.

v.Dorothy M. TRACEY.

No. 2207

Sept. Term

2009.

Court of Special Appeals of Maryland.

April 5, 2011.

Kevin A. Dunne & Matthew T. Vocci (Ober, Kaler, Grimes & Shriver, on the brief), Baltimore, MD, for Appellant.Clifford A. Robinson (H. Barritt Peterson, Jr. & Assoc., on the brief), Towson, MD, for Appellee.Panel: MEREDITH, MATRICCIANI and RONALD B. RUBIN, (Specially assigned), JJ.MEREDITH, J.

This appeal challenges the grant of a motion for judgment in favor of the defendant landlord in a case in which the parents of a young boy sought damages for injuries inflicted by an American Pit Bull Terrier (“pit bull”) owned by the landlord's tenants. On April 28, 2007, a pit bull escaped from a pen that was located in the backyard of a residential property in Towson, Maryland. In an alley adjacent to the backyard of the property, the pit bull seriously injured ten-year-old Dominic Solesky. The property from which the dog escaped was owned by Dorothy M. Tracey, appellee, and rented to Thomas C. O'Halloran and Erin Cesky, the owners of the pit bull that attacked the child. On March 24, 2008, the child's parents—Anthony K. Solesky and Irene Solesky (“the Soleskys”), appellants—filed a complaint against the dog's owners and the landlord, seeking money damages in the Circuit Court for Baltimore County. The claims against the dog's owners were discharged in bankruptcy.

The claims against the landlord included counts alleging negligence and strict liability. During discovery, the Soleskys moved for sanctions against the landlord for not attending a deposition due to poor health, and for spoliation of evidence. The circuit court denied both of these motions, and the case proceeded to a jury trial. At the close of the Soleskys' case, the landlord moved for judgment, and the circuit court granted judgment in her favor, ruling there was insufficient evidence that the landlord (a) was on notice of the vicious nature of the dog, or (b) retained control over the tenants' use of the leased premises. The Soleskys appealed, and contend that the circuit court erred (1) in denying them sanctions, and (2) in granting the motion for judgment in favor of Tracey.¹

In our view, the evidence, when considered in a light most favorable to the Soleskys, was sufficient to survive a motion for judgment. Accordingly, we will vacate the circuit court's entry of judgment in favor of the landlord, and remand the case to that court for further proceedings.

Standard of Review

Because this appeal arises from the circuit court's granting of a motion for judgment at the close of the plaintiffs' case in a jury trial, our task is to determine “whether, as a matter of law, the evidence produced during [the Soleskys'] case, viewed in a light most favorable to [them], is legally sufficient to permit a trier of fact to find that the elements” of a cause of action have been proved by a preponderance of the evidence. Driggs Corp. v. Md. Aviation, 348 Md. 389, 402, 704 A.2d 433 (1998); Md. Rule 2–519(b). As Chief Judge Krauser observed for this Court in Moore v. Myers, 161 Md.App. 349, 363, 868 A.2d 954 (2005):

“Maryland has adopted a very restrictive rule about granting [motions for judgment] in negligence actions.” Banks v. Iron Hustler Corp., 59 Md.App. 408, 423, 475 A.2d 1243 (1984). Indeed, it “has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury.” Id. (quoting Fowler v. Smith, 240 Md. 240, 246, 213 A.2d 549 (1965)). “The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury.” Id. (emphasis omitted).

Accord Plitt v. Greenberg, 242 Md. 359, 367–68, 219 A.2d 237 (1966) (“[T]his Court has always maintained that if there be any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court has invaded the province of the jury by declaring a directed verdict.”).

A jury's verdict may rest upon circumstantial evidence alone. See Robinson v. State, 348 Md. 104, 112, 702 A.2d 741 (1997) (“Circumstantial evidence is in no manner intrinsically inferior to direct evidence.... In a given case, circumstantial evidence may be more persuasive than direct evidence.”).

We set forth the following facts, and discussion, in accordance with this standard.

Facts and Procedural History

On December 26, 2005, Tracey entered into an agreement to lease the residential property she owned at 208 Burke Avenue (also known as “208 East Burke Avenue”) to O'Halloran and Cesky for one year. Tracey had used the services of a Long & Foster real estate agent to find tenants for the property. The lease agreement included a provision stating:

The following pet(s) may be kept on the premises: American Bulldog Terrier. Tenant agrees to arrange for and pay the costs of having the carpets/flooring professionally cleaned, deodorized and treated for fleas, ticks and other vermin at the termination of occupancy, should the above consent be given. Paid receipts for such cleaning and treatment must be provided to Landlord. Tenant further agrees to assume all liability and to be responsible for any damage caused by said pet(s) such as, but not limited to damage to carpets, sub flooring and wood floors, screens, glass and frames and landscaping. Tenant must comply with any pet ordinances enacted by the local authorities, homeowners or condominium associations. Tenant shall not keep the pet on the premises if the pet is or becomes vicious or threatening, bites or attacks any person or other pet, or otherwise is or becomes a nuisance. Tenant assumes full liability for the results of any actions of pet.

With the exception of properties located in Montgomery County, if Tenant permits or harbors a pet on the premises without: 1) permission of Landlord, and 2) payment of the required pet deposit, tenant shall be in violation of the lease. If tenant violates the “no pets” provision of the lease, tenant agrees to pay, as additional rent, $200 per month per animal for each month violation exists, in addition to any damages, physical or otherwise, which in the opinion of Landlord were caused by the unauthorized animal on the premises. Landlord also reserves the right to require removal of the animal from the premises, and require additional security deposit to be held for balance of the tenancy.

The dwelling known as 208 Burke Avenue comprises the western half of a duplex structure, the other half of which is not owned by Tracey. The main entrance to the property faces south, along Burke Avenue. The backyard of the property contains an unfenced grass plot, and a parking pad. A paved alley abuts the backyard.

On December 31, 2006, the initial lease term for 208 Burke Avenue expired. Tracey's daughter, Rose M. Schisler, drafted a new lease agreement, dated January 22, 2007, to re-let the property to O'Halloran and Cesky. On January 23, 2007, Tracey and Schisler visited 208 Burke Avenue in order to inspect the property and review the proposed new lease with O'Halloran and Cesky. They parked in the alley behind the property. Schisler saw that O'Halloran and Cesky kept two pit bulls on the property, one male and one female. Schisler observed in the backyard what she described as a “very tall, kind of cube-shaped” pen. A photograph of the pen shows that it is approximately five feet long, five feet wide, and four feet high. It is made of chain-link fencing, and has an open top. Aside from the pen, the backyard of Tracey's property is unenclosed.

On the day of the inspection, Tracey, O'Halloran, and Cesky signed the lease agreement Schisler had drafted. Schisler signed the agreement as a witness, and was identified in Paragraph 15 of the lease as the “Property Manager.” With respect to the dogs, the renewal lease included the following paragraphs:

11. Pets: The Lessee is allowed to keep pets that are agreed upon by Lessee and Lessor: 2 pit bull dogs.

13. The Lessee will be civically [sic] and financially responsible for their pets. Should their pet(s) harm anyone, it is the Lessee's financial responsibility to pay for the damage. The Lessor is in NO Way responsible. ²

The renewal lease did not contain the additional pet language which was in the Long & Foster lease agreement for the initial lease.

Approximately three months later, on April 28, 2007, ten-year-old Dominic Solesky was playing with three of his friends in the alley which runs behind Tracey's property. On the opposite side of the alley are the backyards of houses fronting on Ridge Avenue. Dominic lived at 249 Ridge Avenue with his parents (the Soleskys) and his brother. Dominic and his friends were playing a game in which they would hide, then shoot at one another with foam darts from toy guns. While Dominic was hiding, he heard his friend Scotty scream. Dominic ran to the alley, where he saw Scotty's toy “gun [lying] in the middle of the alley with a little bit of blood next to it.” Scotty had been bitten by the tenants' male pit bull, which had escaped from the pen. By the time Dominic reached the alley, O'Halloran had placed the dog back in its pen.

Dominic walked toward the toy gun Scotty had dropped in the alley. As he did so, he heard the sound of a fence rattling. He turned around to see the pit bull that had bitten Scotty “kicking off” the female pit bull— i.e., standing on the female dog's back—in an attempt to climb over the side of the pen and escape. Dominic started running away as the male pit bull escaped the pen. The pit bull overtook Dominic, jumped on his back, and pulled him to the ground. The pit bull bit Dominic's face, arm, and leg, and “started dragging [him] around the alley.” O'Halloran eventually pulled the dog off Dominic. By that time, Dominic was...