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.
Maryland dog bite cases used to be clear: if the owner knew or should have known that the dog had “vicious propensities” before the bite, then the owner is liable for a dog attack. This is commonly called the “one free bite” rule–a dog’s first “bite” yields no liability, because the owner had no reason to know it was dangerous. The next time, though, the owner has to pay up.
Then came April’s Tracey v. Solesky decision, widely lambasted by dog lovers, dog owners, landlords, and even lawyers. This was a decision that seemed to come out of nowhere, and the Court’s majority decided that pit bulls do not get one free bite, like the rest of the canine kingdom. Instead, owners of pit bulls are strictly liable for injuries caused by their dog, even if it was the sweetest animal on the planet up to the attack.
Dog lovers decried this breed-specific legislation, and many feared that people would give up their pit bulls to shelters, shelters would not be able to adopt their pit bulls out, and landlords (potentially liable if they know their tenants have pit bulls) would refuse to allow pit bull owners to move in. A special session was recently called by the Maryland legislature, though they seemed to focus more on gambling than the dog issue. Maryland’s Senate attempted to extend the strict liability rule to all dogs, while giving some protection to landlords. The House modified the rule, and proposed that strict liability would apply to any dog if the dog was “at large.” Interestingly, it protected state governments, animal shelters, kennels, pet shops and dog walkers (really? Dog walkers?).
In the end, though, the special session failed to pass any legislation. Perhaps this is for the best–the politicians can sit and really think about it. They will certainly revisit the issue during the regular session in January. On the other hand, the rest of us are wondering what our responsibilities are. That confusion continues to deepen, especially because the Court of Appeals reconsidered Solesky and issued a revision to their opinion following a motion for reconsideration.
The Court’s five-page update started by quoting the original opinion:
upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises
After some soul-searching, the Court decided to tweak the opinion. It no longer applies to anything but pure-bred pit bulls–that is, it does not apply to cross-bred dogs. Using this opinion as a base, a trial court has no guidance when examining whether a cross-breed pit bull attack is sufficient for strict liability. We don’t know what the appellate courts would require.
The reality is, this is going to be a moving target for some time. Here’s what won’t change: if a dog is dangerous, and if an owner knows that it is dangerous, the owner is responsible for any injuries the dog causes. It makes no difference what kind of dog it is. For now, pure-breed pit bull attacks equate to liability regardless of a prior history of viciousness, but that could change in the special session. And, you can bet that any pit bull owner with a defense lawyer worth his salt will have that dog genetically tested to find out if it is even 1/100th something-0ther-than-pit-bull. If so, it’s not a pure-bred pit bull, and the judge will have the opportunity to decide whether it is inherently dangerous.
If you have a question about a dog bite or attack, and want to know if the owner can be held responsible, contact us at 443.850.4426, or fill out our online contact form. We can help you decide whether you can recover for Maryland dog bite injuries.
The New York Times recently published an editorial on Judicial Elections. The selection of judges is an area of politics that most people don’t think much about, aside from U.S. Supreme Court nominations. This is for good reason–the Founders established a government where three branches are somewhat separate, and when we take a step back, we expect our judges to be above the political fray. Of course, judicial selections can become rather bipartisan, with Presidents and governors trying to get their picks approved. However, once those judges don the robes, we hope that they act as their consciences and their understanding of the law requires, instead of acting in the best interests of any political party or political motivation.
So, in the state courts of Maryland (for more on Maryland’s history, see The Daily Records 2010 article on The Tangled History of Judicial Elections) and many other states, it doesn’t make sense that we have judicial elections. Here, our circuit court judges are initially appointed by the governor. However, the judges are required to run a campaign, just like politicians, in order to stay on the bench. It’s not a lifetime term, like federal judges. One might question the biases of a judge who is selected by a governor with a political affiliation, but there might not be much we can do about that. However, when a judge must campaign for office, raise money from special interests and political parties, and then turn around and be expected to preside neutrally over cases involving those parties–well, then we really have cause to question the judge’s biases. Our state court judges do a remarkable job of staying above the fray, but in close cases it is impossible to know how campaign contributions sway judicial decisions.
The Center for American Progress notes:
The high courts that have seen the most campaign spending are much more likely to rule in favor of big businesses and against individuals who have been injured, scammed, or subjected to discrimination.
The answer is to take those campaigns out of the equation. Judges should have a lifetime tenure, removable only for bad behavior. They shouldn’t be influenced by business and insurance interests, or even trial lawyer votes.
There have been two recent medical malpractice verdicts in Maryland—the first, in Baltimore City, was a birth injury malpractice against Johns Hopkins Hospital that yielded a jury verdict of $55 million. The second was earlier this week, where a Baltimore City jury found that a child born with cerebral palsy at Harbor Hospital was deserving of $21 million.
The verdicts themselves are somewhat misleading. Like the news reporting that a lawyer has filed a ten million dollar case, the actual number is almost meaningless. High figures are often used by lawyers to ensure that any actual verdict comes in below that number. If the judge or jury returns a verdict in excess of what the plaintiff asked for, there could be complications to collecting the entire amount.
For medical malpractice and other personal injury verdicts, the numbers are important only to enhance the “street cred” of the lawyers. The victims will never recover such high amounts, because Maryland is one of the states that have a cap on non-economic damages. This means that the family is entitled to money for clear-cut damages, like past and future medical bills, lost wages, and adaptive equipment. But money for pain, suffering, mental anguish, humiliation, inconvenience, disfigurement and other “fuzzy” damages is strictly limited. The jury doesn’t know it, but after the verdict the judge will cut whatever number they give. For the $55 million Johns Hopkins medical malpractice case, the final number is closer to $29.6 million. That is because the jury believed that the child’s injury came to a cost of $26 million in non-economic damages, but Maryland law cuts that figure to $665,000 (based on the date of the malpractice).
The usual responses to medical malpractice verdicts include:
But, according to a recent Baltimore Sun article, even the American Medical Association and the American Tort Reform Association acknowledge that there is no data to show that doctors leave the practice. Instead, they cite “anecdotal evidence.”
Research even shows that medical malpractice payments tend to go down, and that such payments represent only a fraction of the cost of the health care system (See Public Citizen).
The response from the medical community should be preventative—they should pledge that these injuries will not happen; that they will work harder to train their doctors and nurses; and that they will institute safeguards to prevent families from suffering. Birth injuries are terrible and costly. If doctors and their insurance companies don’t pay for them, then taxpayers will. Children with birth injuries will often require medical assistance, and will often be on social security.