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Sponsor says amendment guts dog-bite bill

Legislation to overturn a Maryland high court ruling holding pit bull owners strictly liable for injuries their dogs cause hit a snag last week when a Senate committee approved an amendment that a sponsoring delegate said guts the bill and violates an agreement he had with the panel’s chairman.

Del. Luiz R.S. Simmons said Sen. Brian E. Frosh reneged on their deal to support the measure — which the House passed 133-0 last month — that is designed to prevent all dog owners from being held strictly liable while making it easier for dog-bite victims to win in court.

“We had an agreement,” Simmons said of Frosh, like him a Montgomery County Democrat. “He welched on the agreement.”

But Frosh said he did all in his power to hold up his end of the bargain.

“I argued against the amendment, I urged people against the amendment, I voted against the amendment,” Frosh said. “I have 11 people on my committee. They have their opinions, and they’re entitled to their opinions.”

The House-passed legislation would make dog owners presumptively liable in litigation for injuries caused by their pets. The owners could rebut that presumption by showing they had no reason to know or suspect their dog had “vicious or dangerous propensities.”

But the Senate Judicial Proceedings Committee voted 7-4 for an amendment that would enable dog owners to rebut the presumption with “clear and convincing” evidence that they had no reason to know or suspect.

Simmons called the amendment a deal breaker because the evidentiary burden it would impose on owners is “the functional equivalent” of strict liability.

“Tell me you can’t get five votes on your committee in addition to your own,” Simmons said. “That is a statement that requires one to suspend disbelief.”

Frosh “was simply going through the motions,” Simmons said. “I am still stunned.”

But Frosh said he spoke strongly, though in vain, against the amendment last week.

“It was not half-hearted,” Frosh said.

Committee members “make up their own minds, and I try to persuade them,” Frosh said. “I don’t win every single line of every single bill.”

He also voiced confidence that a compromise between the Senate and House could be reached.

Clear and convincing evidence is “not the functional equivalent of strict liability,” Frosh said. “It’s merely a standard of proof.”

Both Senate Bill 160 and House Bill 78 seek to overturn the Maryland Court of Appeals’ controversial Tracey v. Solesky ruling last April that pit bull 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 Frosh proposed strict liability for all dog owners.

Frosh received broad support only for his proposal — included in the pending bills — that landlords should not be held strictly liable for their tenants’ dogs.

Simmons, the bill’s chief sponsor, said he drafted the measure as a compromise that provides protection for both the dog owner and the plaintiff alleging injury.

But Sen. Bobby A. Zirkin, who sponsored the Senate amendment, said Simmons’ standard for rebutting the presumption of liability would be far too low, enabling owners to evade liability by simply testifying they had no reason to believe their dog was dangerous.

The clear and convincing standard would make it harder for dog owners to rebut the presumption of liability, said Zirkin, D-Baltimore County. Dog-bite victims would still have the ultimate burden of refuting the owners’ claim that they had no reason to know or suspect their pet had vicious or dangerous propensities, he added.

“Clear and convincing just gives the jury a little bit more to think about,” Zirkin said. “The victim still has to show a prior vicious propensity.”

He added the only fair system would hold the owners strictly liable for the dog bite, thus relieving the victim of having to prove the animal was known or suspected of being vicious. But strict liability would never pass the legislature, Zirkin said.

“I believe very strongly in strict liability” he added. “Every dog bite should be compensated. That would take the lawyers out of it.”