Tracey v. Solesky

• Decision Date: 21 August 2012
• Docket Number: No. 53,Sept. Term, 2011.,53
• Citation: 50 A.3d 1075,427 Md. 627
• Parties: Dorothy M. TRACEY v. Anthony K. SOLESKY and Irene Solesky, as the Parents, Guardians and Next Friends of Dominic Solesky, a Minor.
• Court: Maryland Court of Appeals

427 Md. 627
50 A.3d 1075

Dorothy M. TRACEY
v.
Anthony K. SOLESKY and Irene Solesky, as the Parents, Guardians and Next Friends of Dominic Solesky, a Minor.

No. 53, Sept. Term, 2011.

Court of Appeals of Maryland.

April 26, 2012.
As Amended on Reconsideration Aug. 21, 2012.

Richard E. Schimel (Budow and Noble, P.C., Bethesda, MD), on brief, for Petitioner/Cross–Respondent.

Clifford A. Robinson (H. Barritt Peterson, Jr. & Associates, Towson, MD), on brief, for Petitioner/Cross–Respondents.

Kevin A. Dunne (Matthew T. Vocci of Ober, Kaler, Grimes & Shriver, Baltimore,

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MD), on brief, for Respondents/Cross–Petitioners.

Debora M. Bresch, New York, NY, for Amicus Curiae brief of American Society for the Prevention of Cruelty to Animals in Support of Appellant.

Don Bauermeister, Council Bluffs, IA, for Amicus Curiae brief of Dogsbite.Org in Support of Appellees.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, ALAN M. WILNER (Retired, Specially Assigned), and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

DALE R. CATHELL, (Retired, Specially Assigned), J.

[427 Md. 629]In Maryland the vicious mauling of young children by pit bulls occurred as early as 1916.¹Bachman v. Clark, 128 Md. 245, 97 A. 440 (1916). In that case, a ten-year-old boy, John L. Clark, was playing on the north side of a street when a pit [427 Md. 630]bull (“bull terrier”) came across the street from its owner's property and attacked him, inflicting serious injuries. The pit bull refused to release the boy until a witness picked up a “scantling” ² and struck the dog, killing it. Similar to the testimony in the present case by the boy's mother, in that old case the mother described the aftermath of the attack on her child as follows:

... [H]e was unconscious, in such a condition that she did not know whether he was living or dead ... Blood all over him.
Id. at 247, 97 A. at 440.

Over the last thirteen years, there have been no less than seven instances of serious maulings by pit bulls upon Maryland residents resulting in either serious injuries or death that have reached the appellate courts of this State, including the two boys attacked by the pit bull in the present case.³ Five of the pit bull attacks in Maryland have been brought to the attention of this Court, and two have reached the Court of Special Appeals.

The first two attacks to reach this Court were reported in Shields v. Wagman, et al., 350 Md. 666, 714 A.2d 881 (1998),⁴ where a pit bull attacked a business invitee at a strip shopping center and later attacked a tenant. Both attacks took place in the parking area of the strip-shopping center owned and maintained by the landlord. The pit bull was kept by its owner, also a tenant who operated an automobile repair business on leased premises.

[427 Md. 631]In the first instance, Ms. Shields took her car to the parking area for repairs, and as she exited her car and approached the leased premises, the pit bull broke through the door and attacked her, inflicting serious injuries. Id., at 670, 714 A.2d at 883.⁵ In the second instance, the pit bull was not restrained and chased another tenant in the shopping center, Mr. Johnson, onto the roof of a car in the parking

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lot and attacked him, again inflicting serious injuries. As a result, Mr. Johnson had several surgeries to his arm, lost sensation in that arm, and was impaired in his ability to perform certain duties related to his job. Id., at 671, 714 A.2d at 883. This Court held that the landlord in that case had actual knowledge that the pit bull (whose name was Trouble) was dangerous and had the right to cause the removal of the pit bull from the premises but failed to do so, and in not so doing, had negligently allowed the attacks to occur on the parking premises controlled by the landlord. Id., at 690, 714 A.2d at 892–893.

The third case decided by this Court just two months later, Matthews v. Amberwood Associates Limited Partnership, Inc., 351 Md. 544, 719 A.2d 119 (1998), involved a situation where a pit bull (named Rampage) attacked a child inside a tenant's apartment killing the child. We found that because the landlord's employees had reported Rampage's aggressiveness and viciousness on prior occasions to management personnel, that knowledge was imputed to the landlord even though the attack occurred in the premises leased to the tenant. Id., at 588–59, 719 A.2d at 125–26. Accordingly, because the landlord had the right not to renew the lease or to remove the pit bull under a “no pets” provision in the lease, he could be held liable. Ibid.

In Moore et al. v. Myers, 161 Md.App. 349, 868 A.2d 954 (2005), a case originating out of Prince Georges County, the Court of Special Appeals was faced with a factual situation in which an unleashed and unrestrained pit bull chased a twelve [427 Md. 632]year old girl into a street where she was run over by an automobile and suffered two broken arms, a broken leg, and a fractured jaw.⁶ At the time, Prince Georges County had adopted statutes specific to pit bulls that, among other things, required owners of pit bulls to keep the dogs in enclosures or leashed at all times. Id., at 364, 868 A.2d at 962. Based primarily on a violation of those statutes, the Court of Special Appeals held the owner of the pit bull liable. Id., at 367, 868 A.2d at 964.

In Ward v. Hartley, 168 Md.App. 209, 895 A.2d 1111 (2006) (in which the relevant party in the lawsuit was the landlord), a taxi driver was dispatched to pick up a passenger for transportation to the Kennedy Kreiger Institute. When he knocked on the door to the leased premises, he heard someone tell children not to open the door. He stepped back and at the same time a child opened the door and a pit bull came charging out as he heard someone yell “Get the dog.” He hit the pit bull with some rolled-up paper he had in his hand and the pit bull grabbed his foot. He then ran to his cab with the pit bull still holding onto his foot and, with the pit bull still attached, climbed on top of the car. A police car appeared on the scene, and as it did, two boys ran out of the house laughing and pulled the dog off of the cabdriver's foot. The cab driver's foot was severely injured and required surgery. Id., at 213, 895 A.2d at 1113. There was no evidence in the case that the landlord knew that a pit bull was being kept on the premises until he heard about the incident with the cab driver. The Court of Special Appeals, in holding for the landlord, opined: “Keeping a pit bull did not violate any covenant of the lease, nor did it violate any law or ordinance. No provision of the lease gave the landlord control over any portion of the rental premises. Thus, appellees had no duty to inspect the premises.” Id., at 217, 895 A.2d at 1115.

[50 A.3d 1078]

The present case involves an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford [427 Md. 633]possessed the aggressive and vicious characteristics of both Trouble and Rampage. He escaped twice from an obviously inadequate small pen ⁷ and attacked at least two boys at different times on the same day.⁸ The second young boy was Dominic Solesky. As a result of his mauling by Clifford, Dominic initially sustained life threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, during which time he underwent additional surgeries, and then spent a year in rehabilitation. ⁹

Here, the trial court granted a judgment for the defendant landlord at the close of the Plaintiff's case on the grounds that, according to the trial judge, the evidence was insufficient to permit the issue of common law negligence to be presented to the jury. On the state of the common law relating to dog attacks in existence at that time, the trial court was correct The plaintiff took an appeal to the Court of Special Appeals [427 Md. 634]and that court reversed the trial court, finding that the evidence had been sufficient to create a valid jury issue as to the extent of the landlord's knowledge as to Clifford's dangerousness in respect to the then common law standards in dog attack negligence cases.

Appellant, the landlord, presented several questions in her brief before this Court.

1. Is the harboring of American Staffordshire Terriers (more commonly known as “pit bulls”) by tenants an inherently dangerous activity for which landlords may be held strictly liable?

2. Does Maryland jurisprudence permit an inference of knowledge of prior vicious propensities of a domestic animal by a landlord based upon the existence of an exculpatory clause in a residential lease concerning bodily injury caused by the tenant's pets?

3. Does Maryland jurisprudence permit an inference of knowledge of prior vicious propensities of a domestic animal by a landlord whose tenant harbors the animal in leased premises based upon subjective conclusions as to the animal's temperament of neighbors who have limited observations of the animal's behavior which was never conveyed to the landlord?

4. May a landlord be held liable for injuries caused by a tenant's domestic animal due to the failure to require reasonable

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confinement of a domestic animal in the leased premises?

5. Should landlords that allow tenants to harbor dangerous or vicious animals in the leased premises be held liable in tort under any circumstances when the tenant fails to properly control its pet?

6. Should this Court's prior rulings in Mathews [ Matthews] v. Amberwood Associates Ltd. P'ship, Inc., 351 Md. 544 [719 A.2d 119] (1998) and Shields v. Wagman, 350 Md. 666 [714 A.2d 881] (1998) be overturned or significantly modified?

427 Md. 635]The appellee, cross-petitioner, Solesky, presents six questions in his brief.

I. After Shields and Matthews, was the inherently dangerous/vicious nature of pit bulls known to Maryland landlords?

II. Did Matthews impose...