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Lawmakers spar over dog bills’ teeth

ANNAPOLIS — Opponents of a bill meant to set a standard of liability in dog bite cases say the so-called compromise bill would codify the common-law standard and will increase the number of cases that end up in court.

Those same opponents say they favor a competing bill nipping on the heels of the favored legislation, which is sponsored by Sen. Brian E. Frosh.

Brian Frosh

Sen. Brian E. Frosh (The Daily Record/Maximilian Franz)

Frosh, a Montgomery Democrat who chairs the Senate Judicial Proceedings Committee, defended his proposal Thursday. “It’s an attempt to go up the middle, to strike a balance,” he said.

In Frosh’s bill, an injury or death caused by a dog bite creates a rebuttable presumption that the owner knew or should have known that the dog had dangerous or vicious propensities.

Unlike a strict liability measure, the owner would be allowed to present evidence to counteract the presumption. However, the bill would prevent judges from ruling that the presumption had been rebutted before a jury could return its verdict.

Under current case law, sometimes called the “one free bite” rule, most victims have to prove that people who own or allow dogs to be kept on their premises, such as landlords, knew or had reason to know that the dog was dangerous.

However, a different rule applies when the dog in question is a pit bull. Under a 2012 ruling by the Court of Appeals, pit bulls are considered inherently dangerous, so their owners and the owners’ landlords are subject to strict liability.

The General Assembly is attempting to undo the effect of that ruling.

In addition to Frosh, the current bill is co-sponsored by seven of the remaining 10 members of the committee. Del Luiz R.S. Simmons, D-Montgomery, has filed an identical bill in the House of Delegates.

“It’s just good policy,” said Tami Santelli, Maryland director of the Humane Society of the United States. “It raises the bar for all dog owners.”

Santelli said Frosh’s bill also “provides much-needed relief to thousands of dog owners who have been impacted” by the 2012 Court of Appeals case, Tracey v. Solesky.

But a representative of an association of plaintiff’s attorneys said the bill will hurt victims.

“We’re not loving this bill,” said Bruce Plaxen, a representative of the Maryland Association for Justice. “It will lead to additional litigation.

“I hope the 11 of you will speak for victims,” Plaxen said.

One way to do that, according to Plaxen, is to support a bill sponsored by Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, that would impose a standard of strict liability on dog bites.

Zirkin and other opponents said the Frosh bill returns the state to the “one free bite” standard that would leave victims of dog attacks without a way to recover financial losses.

“It’s not a compromise, it’s a surrender,” said Kevin A. Dunne, an attorney in the firm of Ober | Kaler P.C. “The victims will lose.”

Dunne was the attorney who represented the family of Dominic Solesky, the dog attack victim in Tracey v. Solesky.

Zirkin pleaded with Frosh and other members of the committee to support his bill, which is identical to legislation Frosh sponsored during a special session in late 2012.

“You were right then and it’s right now, regardless of a couple of members of the House of Delegates,” Zirkin said. “We should hold firm. We’ve been on the right side of this thing and we should stay on the right side of this thing.”

The strict liability bill failed in the House in 2012 after delegates refused to adopt a strict liability standard.

Frosh said he does not believe the 2012 legislation would pass this year either.

This is the third time, including the 2012 special session, that legislators have wrestled with the issue in an attempt to deal with the Court of Appeals decision.

Dominic Solesky was 10 years old in 2007 when he was mauled by a pit bull while playing with friends in an alley in Towson. The dog, named Clifford, escaped from a yard and attacked him, tearing away a large portion of one of his thighs and severing his femoral artery.

The injury nearly killed the child and ultimately required a year of physical therapy.

The Solesky family sued the owners and later the dog owners’ landlord.

In its decision on the case, the Court of Appeals ruled that pit bulls were an inherently dangerous breed of dog and that landlords could be held liable for injuries or deaths caused by those dogs. The court later amended its decision to apply only to purebred pit bulls.

Despite overwhelming support from his committee, a number of important groups oppose Frosh’s bill, including the Maryland Judicial Conference.

In a written memorandum, the conference, an official body that evaluates legislation to improve the state’s judicial system, said the bill as drafted is inconsistent with Maryland rules. The bill also raises “separation of power concerns under Article 8 of the Maryland Declaration of Rights,” according to the memo. Of special concern is the portion that would keep judges from ruling on the evidence before the jury renders its verdict

The Maryland State Bar Association also opposes that portion of the bill, calling it “completely unacceptable.”