ANNAPOLIS — The Baltimore man whose 10-year-old son’s mauling by a pit bull prompted Maryland’s top court to hold owners of that breed strictly liable assailed legislation Wednesday that would enable all dog owners to evade liability if they did not suspect their pet was dangerous.
The legislation “provides no protection to the next Dominic Solesky who is mauled by a pit bull in Maryland,” Anthony Solesky told the House Judiciary Committee.
Dominic, Anthony Solesky’s son, underwent five hours of surgery to repair his femoral artery after the pit bull attack.
The elder Solesky testified in opposition to House Bill 78, which would hold all owners of dogs, regardless of breed, presumptively liable in litigation. The owners could rebut the presumption by showing they had no reason to know or suspect their dog had “vicious or dangerous propensities.”
But Solesky said the bill would essentially impose no burden on dog owners, who could simply testify in court that they had never seen their dog exhibit any vicious or dangerous propensity.
“How is that responsible or fair to any victim?” he asked the committee.
The legislation, pending in both the House and Senate, seeks to overturn the Court of Appeals’ controversial Tracey v. Solesky ruling in April that pit bill owners and landlords could be held strictly liable for injuries the dogs cause.
Dog owners and landlords lobbied heavily for a legislative fix, and the controversy only grew last summer when Sen. Brian E. Frosh, who chairs the Senate Judicial Proceedings Committee, proposed strict liability for all dog owners.
Frosh, D-Montgomery, received broad support only for his proposal — included in the pending legislation — that landlords should not be held strictly liable for their tenants’ dogs.
Del. Luiz R.S. Simmons, of the House Judiciary Committee, said Wednesday that he drafted HB 78 as “not a perfect solution but a good solution and a compromise” that provides protection for both the owner and the plaintiff alleging injury. Frosh is the sponsor of the Senate version, Senate Bill 160.
Under the measure, plaintiffs retain the burden of persuasion, under which they must show by a preponderance of the evidence that the defendant knew or should have known the dog’s dangerous propensity, said Simmons, D-Montgomery.
The legislation holds landlords liable only if they knew or should have known of the violent propensity of a dog on their property, Simmons said.
Property management and landlord groups testified in support of the measure as written, telling the Judiciary Committee they welcomed the removal of strict liability for their members.
The Humane Society of the United States; the Maryland Dog Federation, a dog owners’ group; and the Maryland State Bar Association’s Animal Law Section also gave their support. Those groups, however, urged that language be added to the bill to ensure the dog’s breed is not a factor in the judge or jury’s consideration of whether the owner knew or should have known of the dog’s violent propensity.
“A dog’s breed (or ‘type’ in this case, since ‘pit bull’ is not a recognized breed) is not a reliable indicator of a dog’s behavior,” said Tami Santelli, The Humane Society’s Maryland state director, in written testimony.
But Robert J. Zarbin, of the Maryland Association for Justice, said he and the plaintiffs lawyer’s group oppose the measure.
“There should be a strict liability standard for dogs, period,” said Zarbin, an Upper Marlboro solo practitioner and dog owner. “You don’t put the dogs over the children.”
Under the legislation, dog owners could evade liability simply by testifying that “I don’t remember him [my dog] ever being vicious,” Zarbin said.
The Senate Judiciary Committee is scheduled to hold a hearing Tuesday on SB 160.