E-Alert Case Updates

Circumstantial Evidence of Landlord’s Knowledge of Dangerous Dogs is Enough

Solesky v. Tracey
No. 2207 (Md. App. 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

This appeal to the Court of Special Appeals of Maryland challenged the grant of a motion for judgment in favor of the defendant landlord in a case in which the parents of a young boy sought damages for injuries inflicted by a pit bull owned by the landlord’s tenants. The pit bull escaped from a pen that was located in the backyard of the subject property and seriously injured the 10-year-old boy. The boy’s parents, (“the Soleskys”), filed a Complaint against the dog’s owners and the landlord, seeking money damages in the Circuit Court for Baltimore County.

The claims against the landlord included counts alleging negligence and strict liability. At the close of the Soleskys’ case, the landlord moved for judgment, which the circuit court granted, ruling that there was insufficient evidence that she was on notice of the vicious nature of the dog, or retained control over the tenants’ use of the premises. Three questions were presented to the Court of Special Appeals: (1) “Where a landlord relets its residential house in a suburban neighborhood to a tenant with two pit bulls does the landlord owe a duty to the neighborhood residents where the landlord’s property has no fence and a makeshift pen without a top for the containment of the pit bulls”; (2) “Did the Court of Appeals in Matthews [v. Amberwood, 351 Md. 544 (1998)] impose a duty upon landlords who rent to tenants with pit bulls in a residential neighborhood to act with a reasonable care in requiring appropriate housing or storage of the two pit bulls when outside the house”; and (3) “Do landlords owe a higher duty of care when renting a residential home to a tenant with two pit bulls?”

Regarding the landlord’s duty, the Court reiterated Maryland law that landlords are liable for injuries caused by an occupant’s dog based upon two conditions: (1) the landlord’s awareness of the presence of a dog that has exhibited viciousness; and (2) some opportunity for the landlord to exert control over the presence of the dog. The court then discussed extensive Maryland case law, and case law from other jurisdictions, on the fact that pit bulls are extremely dangerous. However, a prima facie case of dangerous propensity cannot be established by simply proving that the attacking dog was a pit bull. The court then examined the extent of the landlord’s knowledge and control of the pit bulls.

The landlord’s knowledge of the presence of the pit bull was established by the fact that the lease specifically allowed pit bulls to be kept on the premises. The landlord also knew that there was a modest containment pen in the backyard for the dogs. Specifically, the landlord appeared concerned about liability for the pit bulls because she omitted the prohibition against keeping a “vicious or threatening” pet from the renewal lease, and emphasized that the landlord was “in NO WAY responsible” for damages inflicted by the dogs. There was also uncontroverted evidence that the landlord had visited the property and had seen the particular pit bulls first-hand. A neighbor testified that “anybody” who walked near the dogs would experience aggression from the dogs, and the Court of Special Appeals held that a jury could have rationally inferred that the landlord, too, observed the vicious behavior when she visited the premises. The neighbor also testified that the male dog would climb on the female dog in an attempt to jump out of the pen. Regardless of the fact that there was no direct evidence that the landlord personally observed the aggressive tendencies of the pit bulls, there was enough circumstantial evidence to establish the landlord’s knowledge of the dogs.

Regarding the landlord’s control, the court reiterated that a landlord may exercise control over leased premises by refusing to extend the tenancy, or by imposing conditions at the time of lease renewal. Considering all of the evidence in a light most favorable to the Soleskys, the Court of Special Appeals found that a reasonable jury could have rationally found that, prior to execution of the lease, the landlord had the ability to exert control over the dangerous condition on the premises (i.e., the pit bulls) by either requiring the tenants to take measures to ensure that the pit bulls would be adequately confined to the premises, or by refusing to re-let the premises to the tenants if they were unwilling to abate the danger.

In sum, the Court of Special Appeals held that the Soleskys’ evidence was sufficient to survive a motion for judgment. Accordingly, the court vacated the trial court’s entry of judgment in favor of the landlord, and remanded for further proceedings.