Maryland Dog Bite Law

Maryland is a one bite state, does not recognize a separate cause of action for dog owner negligence, and will not permit a victim to recover if his own actions contributed even just one percent to the cause of the accident.

Overview

The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as "scienter" (the Latin word for "knowingly"), "common law strict liability," and "the one bite rule." As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer or keeper of a dog (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog's previous conduct. If either of those conditions are not met, however, this doctrine prevents the victim from recovering anything. See The One Bite Rule.

Maryland adheres to the one bite rule. The owner or keeper of an animal, if he has actual or constructive knowledge of its ferocious or dangerous propensities, may be responsible, depending upon the circumstances, for all proximately caused injury or damage. Twigg v. Ryland, 62 Md. 380 (1884). The defendant will be held liable whether the incident happens on a public street (Bachman v. Clark, 128 Md. 245, 97 A. 440 (1916)) or the defendant's own premises (Hamilton v. Smith,242 Md. 599, 219 A.2d 783 (1966)), but in the latter case the victim cannot recover if he is an intentional or inadvertent trespasser (Bramble v. Thompson, 264 Md. 518 (1972)).

The one bite rule is the foundation of dog bite law. It exists in every state. The majority of states, however, have statutes that supplement the one bite rule. These dog bite statutes or animal liability statutes make dog owners responsible for all bites including the first one. Additionally, the majority of states impose liability on dog owners and others under a variety of other legal doctrines, including negligence, premises liability, nuisance, and negligence per se for a violation of an animal control law such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. 

This particular state does not have a dog bite statute. Critics have asserted that not having a dog bite statute is at odds with modern American beliefs about personal responsibility, because the one bite rule shields a dog owner from liability each time one of his dogs bites a person for the first time unless it can be proved that the owner knew that the dog had the propensity to bite people without justification. See Criticism of the One Bite Rule. Whether one agrees with these critics or not, it nevertheless is true that a dog bite victim has more to prove in the absence of a dog bite statute. 

This state also has sharply limited the dog bite victim's cause of action for negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent. For example, letting a stray dog into a day care center is negligence. See Negligence. To recover compensation on the ground of negligence in this state, however, the victim must prove the elements of the one bite rule (i.e., that the dog had the propensity to bite people without justification, and that the owner, harborer or keeper knew it). See below, Liability based upon common law strict liability. Therefore the dog bite victim in this state has to satisfy more requirements than victims who are negligently injured by other means. For example, if a dog owner brought his pit bull to a day care center, and the dog mauled a toddler, the dog owner would have no liability at all unless the parents of the child could prove that the dog had demonstrated the specific dangerous propensity to bite people. The sheer stupidity and recklessness of bringing the dog there in the first place would not be enough to make the dog owner liable in this state.

The violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties and cities often have laws requiring dogs to be on leash, or prohibiting them from being at large or from trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. In this state, the violation constitutes evidence of negligence. (Moura v. Randall, 119 Md. App. 632, 705 A.2d 334 (1998).)

Liability based upon common law strict liability

The basic rule of liability in Maryland was stated as follows in Herbert v. Ziegler, 216 Md. 212, 139 A.2d 699 (1958):

To hold liable the owner of a domestic animal that has caused injury, the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care should have known, of the inclination or propensity of the animal to do the particular mischief that was the cause of the harm. Twigg v. Ryland, 62 Md. 380, 386 [1884]; and May Co. v. Drury [160 Md. 143, 153 Atl. 61 (1931)], Evans v. Upmier [16 N.W. 2d 6 (Ia. 1944)] and Lynch v. Richardson, [39 N.E. 801 (Mass. 1895)], all supra; Prosser, Page 457} Torts (2d ed.), Sec. 57, pp. 323-325; Restatement, Torts, Sec. 518. Id. at 216.

In Hamilton v. Smith, 242 Md. 599, 608, 219 A.2d 783 (1965), it was established that the owner of three dogs who had savagely attacked a nine-year old boy had actual knowledge of the dogs' vicious propensities. The court held that "there are three elements which must be proven against a defendant in order to show negligence on his part: (1) owning or harboring of an animal; (2) with vicious propensities, (3) with knowledge (scienter) of its vicious propensities."

Scienter means knowledge of dangerousness and does not necessarily require a prior bite. In Twigg v. Ryland, 62 Md. 380 (1884), it was held that:

The owner or keeper of the dog or other domestic animal must be shown to have had knowledge of its disposition to commit such injury, and the burden of proving this fact is on the plaintiff, though it would be otherwise if the animal was of a nature to be fierce and untamable, such as bears, tigers, etc. Spring Co. v. Edgar, 99 U.S. 645. The notice which will charge the owner or keeper with liability for the vicious conduct of the animal must be notice that it was inclined to do the particular mischief that has been done. Hence, notice that a dog is ferociously disposed towards cattle, is no notice that he will attack persons. It is not necessary to show that the owner or keeper of a vicious dog has seen the animal attack mankind; but it is sufficient to show that the vicious propensity of the animal has, in some way, been brought to the knowledge of the owner or keeper, so as to admonish him to take the necessary precaution to prevent injury in the future. Hence the question in each case is whether the notice was sufficient to put the owner or keeper on his guard, and to require him to anticipate the injury that has actually been done. Id. at 385-86.

Knowledge of dangerousness can be proved by circumstantial evidence that infers knowledge of dangerousness on the part of the dog owner. Bachman v. Clark, 128 Md. 245, 248, 97 A. 440 (1916). In that case, there was evidence that the dog was always kept in an enclosure; that the dog would jump on people entering the enclosure; that the dog would become excited, bark and run up and down the fence, attempting to bite a stick thrust between the palings by boys upon the outside; that the dog would growl; and that the dog was always kept within the enclosure except when on a strap. On the basis of that evidence, the court held there was legally sufficient evidence to go to the jury as tending to show the defendant's knowledge of the dog's vicious propensity or inclination to bite mankind.

It must first be shown, in order to render the owner liable for damages to one bitten by his dog, that the dog had a vicious propensity, and second that such vicious propensity or inclination was known to its owner. But the owner's knowledge of the dog's vicious propensity need only be such as to put him on his guard and to require him as an ordinary prudent person to anticipate the act or conduct of the dog resulting in the injury for which the owner is sought to be held liable. 3 C.J. 96. The owner's knowledge of the propensity of the dog may be, and most generally is, acquired from its conduct and behavior, although such knowledge may be acquired from other persons, and in some cases the knowledge of others is imputed to the owner.

However, knowledge of dangerousness is not implied if it is based solely on breed, as least in a case that did not involve a pit bull. In McDonald v. Burgess, 254 Md. 452, 255 A.2d 299 (Md.App. 07/01/1969), a child apparently was injured by a German Shepherd when the owner took the child into the dog's dog run. The plaintiff argued that the fact that the dog was a German Shepherd should have put the dog owner on notice that the dog might be dangerous. The court rejected that argument.

Landlord Liability

"`[W]here a landlord leases separate portions of his property to different tenants and reserves under his control the passageways and stairways, and other parts of the property for the common use of all the tenants[,] he must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition.' Langley Park Apts. v. Lund Adm'r, 234 Md. 402, 407, 199 A.2d 620, 623 (1964).

The duty to maintain these areas in a reasonably safe condition extends not only to the tenant but "includes the members of his family, his guests, his invitees, and others on the land in the right of the tenant." Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739, 741 (1959). "It has been held that a child on the land at the invitation of the child of the tenant is entitled to the benefit of the landlord's obligation in this respect." Landay v. Cohn, supra, 220 Md. at 27-28, 150 A.2d at 741.

Accordingly, in Shields v. Wagman, [citation needed], the Supreme Court held that landlords of a strip shopping center may be liable for injuries sustained by a business invitee and a tenant when they were attacked by a pit bull dog owned by another tenant and kept on the leased premises. The injuries in Shields occurred in a common area, the parking lot of the shopping center, on two occasions when the pit bull escaped from the leased premises.

As with most general principles of law, however, this principle, that a landlord is not responsible for dangerous conditions in the leased premises, is not absolute and has exceptions. For example, where a landlord agrees to rectify a dangerous condition in the leased premises, and fails to do so, he may be liable for injuries caused by the condition. See, e.g., Sacks v. Pleasant, 253 Md. 40, 44-46, 251 A.2d 858, 861-862 (1969) (landlord held liable for injuries caused by a defective toilet seat where the landlord promised but failed to repair the same); Farley v. Yerman, 231 Md. 444, 448, 190 A.2d 773, 775 (1963) ("a tenant . . . may maintain an action for injuries sustained as a result of an uncorrected defect . . . if there was a contractual obligation to repair the particular defect and a reasonable opportunity to correct it. . . . A promise made in the face of a threat to move or a request by the landlord that the tenant remain creates a contract supported by consideration").

If a landlord, although not contractually obligated to do so, voluntarily undertakes to rectify a dangerous or defective condition within the leased premises, and does so negligently, the landlord is liable for resulting injuries. Miller v. Howard, 206 Md. 148, 155, 110 A.2d 683, 686 (1955); Miller v. Fisher, 111 Md. 91, 94, 73 A. 891, 892 (1909) ("although a landlord, in the absence of a covenant to that effect, is ordinarily not bound to repair, yet if he assumes to do so, and performs the work so negligently as to cause an injury thereby, he is responsible").

Defective or dangerous conditions in the leased premises which violate statutes or ordinances may also be the basis for a negligence action against the landlord. See, e.g., Richwind v. Brunson, supra, 335 Md. at 671, 645 A.2d at 1152 (adopting Restatement (Second) of Property: Landlord and Tenant 17.6 (1977)).

In Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544, 719 A.2d 119 (Md. 10/07/1998) the court stated "We issued a writ of certiorari in this tort case primarily to decide the issue of whether a landlord of an apartment complex owes a duty to social guests of a tenant who, while in the tenant's apartment, are injured or killed by a highly dangerous pit bull dog kept by the tenant, when the landlord knew of the dog's presence and was aware of the dog's dangerousness, when the presence of the dog was in violation of the lease, and where the landlord could have taken steps to abate the danger."

The defendant tenant owned a pit bull that clearly was vicious and dangerous, in that it had attempted to attack many people on the premises. The landlord clearly knew about the dangerousness of the dog, because the landlord's own employees wrote reports about the dog. On the day of the incident, the dog attacked and killed a young child who was a social guest of the tenant. The tenant and the landlord were sued.

The court first addressed whether the circumstances presented a negligence case. The general rule is that "[i]n order to state a cause of action in negligence, the plaintiff must show the following: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994).

The court ruled that the landlord retained control over the presence of a dog in the leased premises by virtue of the "no pets" clause in the lease. The lease plainly stated that breach of the "no pets" clause was a "default of the lease." Such a default would enable the landlord to bring a breach of lease action to terminate the tenancy.

The tenant Morton was maintaining an extremely dangerous instrumentality, both in the leased premises and at times in the common areas. The landlord knew about the dangerous pit bull dog for a considerable period of time. By the terms of the lease, the landlord had retained a large measure of control over the presence of such an animal in the leased premises. Under the circumstances here, and the prior cases in this Court emphasizing the factor of a landlord's control, it is not unreasonable to impose upon the landlord a duty owed to guests who are either on the leased premises or the common areas.

The fact that the dog was a pit bull was held to constitute evidence of foreseeability. The circumstances, as summarized by the court, were "that a dangerous pit bull was kept on the leased premises by a tenant, that the landlord had knowledge of the potential danger, and that the landlord had the ability to abate the danger by not keeping the dog owner as a tenant." The court said,

We do not hold that a landlord's retention in the lease of some control over particular matters in the leased premises is, standing alone, a sufficient basis to impose a duty upon the landlord which is owed to a guest on the premises. This Court has employed a balancing test to determine whether a duty of reasonable care should be imposed in particular circumstances....In the instant case, the various policy considerations that need to be weighed are the general understanding that a tenant is primarily in control of the leased premises and the sanctity of a tenant's home, including her ability generally to do as she sees fit within the privacy thereof, against the public safety concerns of permitting that same tenant to harbor an extremely dangerous animal that will foreseeably endanger individuals inside and outside the walls of the leased premises, the degree of control maintained by the landlord, the landlord's knowledge of the dangerous condition, and the landlord's ability to abate the condition.

Defenses to dog bite cases

Contributory negligence

Maryland is one of the few American states that adheres to the ancient rule of contributory negligence, as opposed to the modern variants of that rule. In a contributory negligence state, a victim cannot recover any compensation for his injuries if he contributed even slightly to the occurrence of the accident. "One who by his own negligence has contributed to an  accident in any essential degree cannot recover damages therefore."  Baltimore & O. R.R. Co. v. State, 29 Md. 252 (1868). 

Negligence of parents as a defense

A parent's negligence will be deemed to constitute an "independent and superseding cause of the child's injuries" in only an "extraordinary situation." Caroline v. Reicher, supra, 269 Md. at 130, 304 A.2d at 834.

Negligence of child under five years old not a defense

The case of Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951) held that "a child four years old cannot be guilty of contributory negligence under any circumstances." If the victim is 5 or over, he may be contributorily negligent if he failed to exercise that degree of care of reasonable person of like age, intelligence, and experience under like circumstances. Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1976). In other words, a child is not judged by the same standards as an adult. 

Lack of time to evict tenant not a defense where no attempt was made to evict

A landlord can be held liable for injuries inflicted by a tenant's dog under certain circumstances, described above. One of the landlord's defenses is that he lacked the time to evict the tenant who harbored the vicious dog. In the case of Matthews v. Amberwood Associates Limited Partnership Inc., 351 Md. 544, 719 A.2d 119 (Md. 10/07/1998), the landlord defended on the ground that the victim could not prove that the landlord had enough time to evict the dog owner. The plaintiff won, however, because defendant landlord had taken no steps to initiate the eviction.

Trespass

A dog owner is not liable when his dog bites a trespasser, whether the trespass is intentional or inadvertent. Bramble v. Thompson, 264 Md. 518 (1972).

Assumption of the Risk

In Benton v. Aquarium Inc., 62 Md. App. 373, 489 A.2d 549 (Md.Sp.App. 04/03/1985), a delivery man saw a sign in a warehouse that said "Guard Dog on Duty." Despite reading the sign, the man opened the door of an office, where he was attacked by a dog. His conduct was deemed to have constituted an assumption of the risk of injury, and on that basis his case was lost.