Maryland is a statutory strict liability state where the attacking dog was at large, and where the dog owner cannot prove that he neither knew nor should have known that his dog was vicious or dangerous. The state also allows victims to base their claims on other legal principles such as negligence. However, the state adheres to the harsh, ancient doctrine of contributory negligence, which does not permit a victim to recover if his own actions contributed even just one percent to the cause of the accident.
Prior to 2014, Maryland applied the one-bite rule and negligence principles. Incidents involving pit bulls between April 27, 2012, and April 7, 2014, were governed by Tracey v. Solesky, 427 Md. 627 (2012), which imposed strict tort liability on pit bull owners and their landlords. Effective on and after April 8, 2014, the state imposes limited statutory strict liability on dog owners as follows:
- Subsection (a) of Courts & Judicial Proceedings section 3–1901 imposes strict liability unless the owner can prove that he neither knew nor should have known that his dog had vicious or dangerous propensities.
- Subsection (c) of Courts & Judicial Proceedings section 3–1901 imposes strict liability for any injury, death, or loss to person or property that is caused by a dog which is at large, except if the victim was trespassing, committing a criminal offense against any person, or provoking the dog. An attempt to trespass or commit a crime is the equivalent of actually trespassing or committing the crime.
- Subsection (d) Courts & Judicial Proceedings section 3–1901 confirms that the victim also can base his claim on negligence, negligence per se, and other common law or statutory causes of action; similarly, the defendant can base his defense on any other common law or statutory defense or immunity.
In cases against persons other than a dog owner, subsection (b) of Courts & Judicial Proceedings section 3–1901 requires the dog bite victim to prove that the dog previously acted viciously or dangerously, and makes it clear that the proof must be something more than showing that the dog was a pit bull.
Statutory strict liability
As stated above, Maryland is a statutory strict liability state where the attacking dog was at large, and where the dog owner cannot prove that he neither knew nor should have known that his dog was vicious or dangerous. The full text of Maryland Courts and Judicial Proceedings Code section 3-1901 is as follows:
(a) Rebuttable presumption of owner’s knowledge. —
(1) In an action against an owner of a dog for damages for personal injury or death caused by the dog, evidence that the dog caused the personal injury or death creates a rebuttable presumption that the owner knew or should have known that the dog had vicious or dangerous propensities.
(2) Notwithstanding any other law or rule, in a jury trial, the judge may not rule as a matter of law that the presumption has been rebutted before the jury returns a verdict.
(b) Common law of liability for other than owner. — In an action against a person other than an owner of a dog for damages for personal injury or death caused by the dog, the common law of liability relating to attacks by dogs against humans that existed on April 1, 2012, is retained as to the person without regard to the breed or heritage of the dog.
(c) Liability of owner. — The owner of a dog is liable for any injury, death, or loss to person or property that is caused by the dog, while the dog is running at large, unless the injury, death, or loss was caused to the body or property of a person who was:
(1) Committing or attempting to commit a trespass or other criminal offense on the property of the owner;
(2) Committing or attempting to commit a criminal offense against any person; or
(3) Teasing, tormenting, abusing, or provoking the dog.
(d) Limitation of effect of section. — This section does not affect:
(1) Any other common law or statutory cause of action; or
(2) Any other common law or statutory defense or immunity.
When a person is injured by negligence, the victim can base his claim on the doctrine of negligence. Moscarillo v. Professional Risk Management Services, Inc., 398 Md. 529, 921 A.2d 245 (2007); Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002). Negligence is generally doing something unreasonable or failing to take reasonable precautions or give a warning, thereby causing harm to someone. Allowing a strange dog to encounter small children in a daycare center would be unreasonable; if the dog bit a child, the child could recover monetary compensation under the doctrine of negligence.
Negligence per se
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).)
Common law strict liability
The common law requirements for suit have been modified and the modifications apply to the most common types of dog bites. Nevertheless, in some cases one must prove the traditional elements required for dog bite liability. The elements of the common law doctrine (referred to as scienter or the one bite rule) were 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 ; 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, at 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.
“`[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, , 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.
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”).
Similarly, if a landlord voluntarily undertakes to rectify a dangerous or defective condition within the leased premises, and does so negligently, the landlord is liable for resulting injuries even though he was not contractually obligated to correct the condition in the first place. 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)).
The doctrine of strict liability applies to cases involving pit bulls on the leased premises. A landlord may be held liable for injuries inflicted by a pit bull that is owned, kept, or harbored on the leased premises, provided that the landlord has the right to prohibit such dogs on the premises and knows or has reason to know that the dog is a pit bull. See the discussion of Tracey v. Solesky, supra.
Defenses to dog bite cases in Maryland
Maryland is one of the few American states that adhere 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). See also Harrison v. Montgomery County Bd. of Educ., 195 Md. 442, 456 A.2d 894 (1983).
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 a 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 a tenant is 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 the defendant landlord had taken no steps to initiate the eviction.
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.