There have been some court rulings of late about dog bite cases in other states, so we thought this might be a good opportunity to clarify the law in Maryland (at least, the undisputed part of the law–for the ongoing saga of pit bulls and strict liability, see our prior posts). If you want to see Maryland’s rules, just scroll down. Otherwise, we’ll take a quick detour to those other states.
In New Jersey, the plaintiff in McDougall v. Lamm argued that she should be able to recover emotional distress damages for watching the defendant’s dog pick up her dog, shake it and drop it to the ground, causing its death. The high court ruled that emotional distress damages were not recoverable, and that the plaintiff was limited to recovery of the replacement cost of the dog, taking into account the dog’s training and breeding.
An appellate court in California decided that intentional injury to a pet can result in a valid claim for emotional distress damages. In Plotnick v. Meihaus, a feuding neighbor somehow injured a dog, perhaps unlawfully on his property, with a baseball bat (vet bills were $2,600.00). It was a 15-lb. miniature pinscher, and the feuding neighbor was, according to his testimony, acting in self-defense. The emotional distress damages awarded amounted to $50,000.00. The ruling appears to indicate that these damages are justified for intentional injury or gross negligence.
Under Maryland law, the death of a pet at the hands of a negligent owner’s dog is compensable. Not unlike New Jersey, Maryland permits pet owners to recover for the fair market value of the killed pet. We still view pets as personal property in this regard, just like a car. The state legislature passed a rule a few years back that gives pet owners a little more in the way of options. “In the case of the death of a pet, the fair market value of the pet before death and the reasonable and necessary cost of veterinary care; and (ii) [i] the case of an injury to a pet, the reasonable and necessary cost of veterinary care” (Maryland Cts. & Jud. Proc. §11-110). The absolute limit of that veterinary care cost, however, is $7,500.00.
If you need to know more about your rights when you or your pet is the victim of a dog attack, contact our office at 443.850.4426, or fill out our online request form.
The Court of Special Appeals (the middle-level court) last week decided Rosen v. B.J.’s Wholesale Club, and decided that exculpatory waivers are unenforceable against minors (kids under 18). An exculpatory clause is that little sheet of paper in a really tiny font with lawyer language that basically says “I promise not to sue you even if you do something really stupid and negligent that causes serious injury or death to my baby.” We’ve all signed them before–at ski resorts, kids’ gym classes, and other areas of child recreation. I’ve never liked them, and if I think I can get away with it, I sometimes scratch out the important parts, initial it, and hand it in a big pile of other releases. No one has ever been the wiser.
Thankfully, that level of deviousness might not be required, anymore. In Rosen, the parents were members of a wholesale warehouse store. B.J.’s had a playland area where parents could drop their kids off while they shopped. In order to access the playland, the member had to sign an exculpatory clause and indemnification agreement. That agreement stated, in 8-point font:
I hereby acknowledge that the participation in BJ’s Incredible Kid’s Club (the “Play Center”) is a benefit offered to me as a part of my BJ’s Wholesale Club membership. I further acknowledge that I have read, understood and I voluntarily agree to abide by all of the rules appearing above and/or rules as posted in the Play Center and registration area. In consideration for this service, I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents, employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns. I further agree to indemnify, defend and hold harmless BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns from any claims or causes of action of any kind arising from my or my child’s use of the Play Center.By placing my signature below, I acknowledge and agree that I have read this agreement, understood all of the terms and conditions contained herein, and that this agreement will be in full force and effect during each of my or my child’s visit [sic] to the Play Center. This agreement shall remain in full force and effect at all times whether my child.
Of course, Daddy Rosen signed the agreement, and 15 months later Little 5-year-old Ephraim Rosen was joyfully playing on Harry the Hippo when he fell about three feet and hit his head, landing on the one spot of concrete that was not covered by thick foam padding. Ephraim was seriously injured, and had a large brain bleed. At Johns Hopkins they performed a craniectomy, requiring surgeons to remove part of his skull. At trial, B.J.’s argued that the waiver controlled and that the Rosen’s should not be permitted to prove their case. The Baltimore County Circuit Court agreed, and ruled for the defendants.
Fortunately, the Court of Special Appeals took a second look. While the trial judge did not do anything wrong (the judge had only two choices with little guidance on this issue), the Court decided that these waivers are ineffective to take away the rights of children. Adults can waive their own rights (the case doesn’t say, but this likely means that the parents’ individual claim for emotional distress and medical expenses is properly dismissed–interestingly, the waiver doesn’t mention the non-signing parent, however).
The rationale is that the state has an express interest in protecting children, even from the mistakes of their parents. Further, a commercial business (the opinion doesn’t say what would happen if this was a case against a governmental entity or a non-profit) is in the best possible position to protect itself by training its employees; inspecting for defect; supervising the children; and purchasing insurance. Removing liability also takes away the incentive of the business to act with reasonable care. That is, if they know they aren’t liable for injuries, they are less likely to take reasonable safety precautions.
So what changes? The businesses will probably still continue to require waivers, hoping that future injuries might fall within some sort of exception to be later identified by the courts. Also, B.J.’s might appeal the case to the Court of Appeals, who could decide to change the ruling. Regardless, the ruling is in the best interests of Maryland’s children, and will go a long way toward protecting them.