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Editorial: We all have a dog in this fight

Despite sitting for three sessions last year, the General Assembly failed to pass breed-neutral legislation on liability for dog attacks. This week, it has returned to that particular fray with hearings in the Senate Judicial Proceedings Committee.

Last year’s legislative inaction let stand a ruling by the Maryland Court of Appeals that found pit bulls inherently dangerous and imposed strict liability on those who own them and on the owners’ landlords.

The Court of Appeals’ decision has been excoriated, both for singling out one kind of dog and for imposing liability on landlords. But that is the nature of a court: It bases its judgments on the facts of the case before it, and the case before the Court of Appeals involved a pit bull and a landlord.

A legislature, on the other hand, has a whole world of options from which to choose — but it does need to choose. And last session, it could not.

All sides agreed on the need for breed neutrality, covering all dogs equally so that each dog would be judged individually. However, in the final days of the session, the legislation unraveled over a question that boils down to liability for a dog’s first attack.

In the House, Del. Luiz R.S. Simmons had backed a measure under which the victim of a dog attack must prove the owner had reason to know the dog was dangerous — a variation on the “one free bite” rule. This has the advantage of familiarity and considerable tradition, as it dates back to 16th-century England. However, most states have abandoned it because it has the unfortunate effect of putting the risk of a first attack on the victim.

In the Senate, Judicial Proceedings Chairman Brian E. Frosh took a more modern approach with a measure that presumed the dog’s owner was liable but gave the owner a chance to rebut that presumption. This is more consistent with notions of personal responsibility and risk management principles, as the owner is better situated than the victim to take steps to limit the harm and ensure against it if those efforts fall short.

Both approaches have their backers, but as often happens in the General Assembly, one and one added up to none. Neither bill passed, and the Court of Appeals’ breed-specific, strict liability ruling remains the law of the land.

Fortunately, Delegate Simmons and Senator Frosh are on the same page this session, with cross-filed measures that adopt the modern approach but spell out the owner’s right to show the dog was indeed a good dog and that the attack was unexpected.

The cross-filed bills, SB 247 and HB 73, are not perfect, and portions have drawn opposition from the Maryland Judicial Conference, Maryland State Bar Association and Maryland Chamber of Commerce. As The Daily Record’s Bryan P. Sears reports, one provision is especially troubling: It seeks to bar judges from granting summary judgment before trial, no matter what evidence has been presented — a mandate that is clearly at odds with court rules and the constitutional doctrine of separation of powers. That portion should be excised by the lawmakers now, or the courts will excise it for them later.

Even so, the bills are built on a fundamentally sound principle. Unlike the victim, the owner chose the dog, knows the dog and has the best opportunity to control the dog. When something goes wrong, then, the owner is the one who should bear the burden of proof.

Adopting that standard will encourage responsible dog ownership, protect dog owners from strict liability and ensure that all victims face the same standard if they need to go to court, regardless of the type of dog that attacked them.

After all, what matters to a victim is the severity of the attack — not whether the dog’s bloodlines were designed for blood sport or for babysitting.