** WARNING; GRAPHIC PHOTO FOLLOWS. TURN BACK NOW IF YOU’RE SQUEAMISH**
A couple of weekends ago I attended a multi-day meeting of a bar association. Said meeting kicked off, as so many do, with a cocktail party. (Note to self: is there an etymological reason why we call a group of lawyers a “bar”? Investigate this further.)
The party was to be held at an off-site location, and I shared a ride there with a group of other lawyers. None of us knew each other from Adam, so we tread lightly around the usual conversational topics: the weather (chilly); the way to the party (as the crow flies); Jimmy Buffett (don’t ask). Then, like a small bomb dropped during vespers, someone brought up politics. There was some fairly awkward discussion along these lines for about a minute and a half. Then one of us, with the best of intentions, I’m sure, suggested we change the subject.
You would think puppies would make for fairly uncontroversial conversation. And, almost anywhere else, at any other time, you would be correct.
Just not here, in Maryland. And not now.
The reason for this impugning of ordinarily adorable canines is that our highest court, the Court of Appeals, recently issued a decision in a dog bite case. A dog bite case is exactly what you think it is: somebody’s dog bites somebody else and litigation ensues.
Traditionally, these cases were decided under a negligence standard. In legal terms, “negligence” is doing something – or not doing something – that a reasonable person would do – or wouldn’t do. In doggie litigation terms, applying a negligence standard means that, practically speaking, if you own a dog, you get one “free bite” before someone can hold you liable in tort. In other words, your dog had to have bitten someone before a court could hold that you’d been somehow negligent in letting your dog bite somebody else. Otherwise, the thinking goes, you’d have no reason to believe your dog might hurt somebody.
That’s how negligence works. There is another standard, however: the strict liability standard. “Strict liability” also means exactly what it sounds like: if something goes wrong, you’re on the hook, whether you did something wrong or not. This is not as draconian as you might think, though, because under the law strict liability only applies in certain circumstances. If you, say, dynamite a hole into the Earth, or play around with uranium in your basement, you will be held strictly liable for any injury you cause, even if you are just as careful as can be. Why is this? Because, the law says, some activities are just so dangerous that if you are going to do them, you are going to have to accept the risks that go with them.
There is, in some states and in Maryland in particular, a defense to tort liability called “assumption of the risk.” It means that in certain cases, a plaintiff won’t be permitted to recover for an injury he or she sustains because he or she voluntarily decided to do something, knowing that there was a risk of injury. If that injury then follows, they’re stuck with it. So if you decide to become a professional boxer, you won’t be able to sue the guy who punches you in the ring and breaks your jaw. Any reasonable person entering a boxing match knows, or should know, that he might wind up with a broken jaw.
Strict liability is the converse of the assumption of the risk doctrine. Strict liability is the means by which claimants who get hurt can hold others responsible, regardless, just because those who engage in certain activities should understand the risks associated with those activities and should be prepared to make good if somebody gets hurt. This standard has now been applied, in Maryland, to owners of the American Staffordshire Terrier. You might know this breed of dog better by its nickname: the pit bull.
(No, the other kind of pit bull. And no, that’s not the graphic photo either.)
Hence the awkward puppy dog conversation. There is a definite segment of the population – with lawyers among them – who are really, really mad about this case. Let’s see, what were the themes that dominated the fairly heated spewing of invective in our little car on the way to our little cocktail party? You can guess, really. Lots of talk about how the decision is unfair to this particular breed of dog coupled with what we law folk call ad hominem and everybody else calls trash talk.
I tend to agree that the decision is imperfect, but in a limited sense only. Here’s the thing: pit bulls – and I know that’s not the correct breed name for this dog, but it’s the name we all use in discourse, so let’s be honest and not get bogged down in semantics – were bred, historically, for two things: fighting and small prey hunting. Yes, it is sad, but true, that these dogs have been genetically abused by humans for centuries. They have been selectively bred for genes that will make them powerful biters and aggressive fighters. And they are terriers. I own a terrier, albeit a Wheaten Terrier, whose most serious injuries inflicted have been, to date, oodles of dog goo following major face-licking episodes. But terriers are really smart. And they are really stubborn. They were bred to be that way, because they were bred to hunt small vermin on farms, and only a dog who could think for itself could be trusted to decide whether to pursue a rat down any particular hole. They don’t wait for instructions.
When you pair a certain stubbornness with intelligence and brute strength, you have the makings of a potential disaster. Which is why a 2000 study by the Centers for Disease Control concluded that roughly half of all dog-related fatalities involved either a pit bull or a Rottweiler.
So here’s where I believe, in my own humble opinion, the weakness in this recent decision lies. The Court of Appeals decided that pit bulls, and their owners (and potentially, landlords who lease to owners of pit bulls) should be held to a strict liability standard, as if there is something unique to pit bulls that is not to be found in other breeds of dog. But certainly, many other kinds of dogs are dangerous in the same ways: mastiffs; Rotties; German Shepherds (there’s a reason they’ve become synonymous with military and police dogs); Dobermans; Huskies and Malamutes; Chows. If you want to know which dogs are responsible for the most bites, seriously, ask an insurance company. They’re the ones keeping the statistics, because they’re paying the claims.
But the common law – which is judge-made law, rather than law issued by the legislature – develops in increments. Judges, despite what many would have you believe about the “activist” judiciary, are generally loathe to go too far beyond the facts presented by any particular case. They hesitate because, as all of us know, just when you think you know how something works, along comes an exception. Judges don’t want to lay down rules only to have an exception appear and make them seem shortsighted, or worse, get them reversed. So what we have seen, in this particular case, is a decision by the Court of Appeals that pit bulls are dangerous dogs, and that the people who own them must be held responsible for them. This doesn’t mean that other dogs won’t or shouldn’t be treated similarly. Additional court decisions may be forthcoming which will address that. But as of right now, the Court hasn’t heard those cases yet. I think when they do – and rest assured, the plaintiff’s bar is right now searching for the right Rottweiler case, the right Doberman case, and so on – I suspect, and I even hope, that the Court will expand the reach of the decision to other dogs with similar characteristics.
Do I think we are on a slippery slope, one on which eventually all dogs will be considered potentially dangerous? No. Have you ever seen a Yorkie? (Honestly, I’d rather be bitten by a pit bull. I firmly believe that dogs should be dog-sized.) The fact that a toy breed might be prone to biting doesn’t make it dangerous if, realistically, the dog is too small to cause much harm. Nor is size the determining factor, although it is certainly one factor. The point is, when the Court of Appeals decided to apply strict liability to pit bulls, it made a policy determination based upon the breed’s history, size, temperament, and jaw strength. Like it or not, a pit bull is more likely to bite than a Bichon, and when it does, its jaw clamps down like a vise. There are anecdotes about pit bulls who simply WOULD NOT LET GO. So if you are going to voluntarily own such a dog, great, good for you: but be prepared to pay the medical bills if your dog bites somebody. That’s all this decision does. It holds you responsible for your decision to own a dog that can cause an enormous amount of hurt when it bites. And yes, before you can be held responsible, some proof that you knew or should have known that your dog was a pit bull, or part pit bull, is necessary. Just like, before you could be held liable for vaporising your neighborhood, some proof that you knew you were playing with ammonium nitrate would be necessary. Courts deal with fact issues like these every day. We can handle them.
I’ve seen a lot of people posting cute little photos of pit bulls since this decision came out, with snarky captions like, “Look how scary we are!” or “I Love My Pit Bull!” That’s nice. And I love dogs too. But this was a person:
Does the picture bother you? I’m sorry. I suspect he wasn’t real happy about it either. And if you are going to choose to own a dog as powerful as a pit bull, you’d better be prepared to pay for his stitches and God knows what else he’s going to wind up needing, because that is how responsibility works in society. Deal with that.