Please ensure Javascript is enabled for purposes of website accessibility

Editorial Advisory Board: Legislature, not court, should decide pit-bull liability

If the Humane Society has its way, the battle over pit-bull liability is headed for the General Assembly. In our view, that’s where the issue should be decided, if not during the special session then in the ordinary course of business.

Last month’s holding by the Maryland Court of Appeals that a particular type of dog is inherently dangerous goes too far in rewriting the common law. We don’t challenge the court’s right to do what it did. We do question its wisdom.

Thanks to the court’s slim 4-to-3 majority, if one drop of pit bull blood runs through your pooch’s veins, you’d better be very careful, because you’ve got an undeniably dangerous beast that could send you to the poorhouse if it nips anyone, no matter what you did or how careful and loving a dog owner you are. (Well, maybe one drop is not enough to reclassify your dog as a menace. Are two drops? A liter? The court didn’t say.) The victim need not show that you were negligent.

Gone is the requirement that a plaintiff prove a particular pit bull or pit-bull cross had vicious tendencies. In deciding that the dog’s mere existence as a pit bull is enough, the court blessed the purest kind of profiling.

It’s not that we don’t care about dogs that hurt people or that we don’t recognize that pit bulls can be trained by sadistic owners to attack without apparent provocation. Some have been bred to ignore pain and to fight relentlessly until there’s no fight left in them. They bite hard and hold long. And yes, some are dangerous. But some are not and have been cared for appropriately by owners who are not interested in using dogs for blood sport. Nature and nurture combine to create a dog with a range of possible characteristics

But what is a pit-bull cross? For that matter, what’s a pit bull? The modern versions are blends concocted from a variety of lineages, not all easily identifiable. If a dog resembles a pit bull, is it one? Other breeds look like pit bulls but aren’t. All this raises a question that was not adequately addressed by before the court: Is the term “pit-bull cross” or even “pit bull” unconstitutionally vague or overbroad?

What extra liability do landlords now face if they know that a tenant has a “pit bull”? What if a landlord sees that a tenant’s dog is stout and has a square muzzle? Is he going to gamble that a court will not find that dog to be a pit bull? Can he or she kick out the tenant who owns a pit bull, even if there is no violation of the lease, given the dramatic rise in potential liability? Perhaps so, if the lease prohibits the tenant from engaging in dangerous activities, since a pit bull is now dangerous by definition. Then where would the dog and his owner go to live? Somewhere that doesn’t mind hosting a dangerous animal with its attendant liability. Which means nowhere and a dog likely put to death.

Landlords throughout the state will be consulting with their attorneys and insurance agencies as they try to protect themselves, now that the law has shifted beneath them dramatically. This dilemma is faced not just by landlords and dog owners, but by condominium and homeowner associations, veterinarians, dog handlers, dog walkers, dog sitters, kennels, shelters and breeders.

Animal shelters are going to be more reluctant to hand over what they think might be pit bulls to would-be owners for fear of their own added liability. A likely result of the court’s reclassification of these dogs as inherently dangerous is that those already in shelters will be euthanized rather than cared for, and within a short period of time no new possible pit bulls will be admitted, no matter how gentle particular animals may be.

There were less drastic ways of handling the problem, assuming there is a problem so great that some aspect of the laws governing dogs had to be changed. For one, leash laws can be more strictly enforced. Dog owners who let their animals run loose must suffer the consequences if they do harm.

If there is evidence that a dog owner mistreated an animal or trained it to be aggressive, that could be evidence leading to liability, perhaps even strict liability.

The focus should be on conduct of the people responsible for the dogs, not unreliable and arbitrary breed-specific classifications that are rejected by such organizations as the Humane Society, the ASPCA, the American Veterinary Medical Association’s Task Force on Canine Aggression and Human-Canine Interactions, and the American Kennel Club. As the AKC says, “Laws should judge the deed, not the breed.”

We urge the General Assembly to eliminate the classification of pit bulls as inherently dangerous. We agree with the three dissenters in this case that the proper forum for determining how to address the problem of dog attacks is the legislature, where facts can be presented and witnesses examined and the issues fully vetted. The court majority relies on legal precedents from other states, and we don’t know the extent of the fact-finding or expertise on which the decision by a tiny group of judges is based.

Nor do we find the reliance by the court on precedents particularly persuasive. In order to justify changing the common law, the court cites cases whose facts are so egregious, including one where an extremely dangerous dog was “sicced” on someone who knocked on the door, that the risk of liability would have been high without a change in the law. The court could not, and did not, opine on the key issue: how many landlords or dog owners unjustly escape liability because of the current state of Maryland law.

If there is a need to tighten restrictions on a breed of dogs, let the legislative process do the work.

Editorial Advisory Board member C. William Michaels did not participate in this opinion.

Editorial Advisory Board

James B. Astrachan, Chair

Laurel Albin

John Bainbridge

Neil Duke

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

Wesley D. Blakeslee

C. William Michaels

William Reynolds

Frederic Smalkin

Norman Smith

Mary Louise Preis

H. Mark Stichel

Christopher West