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Letter to the Editor: Dog Days of Summer

Kevin Dunne, the lawyer for the Solesky family, shares his thoughts on legislation taken up by Maryland's General Assembly that would overturn much of his client's verdict.

As a Maryland attorney for the last 32 years, my practice has largely focused on cases dealing with catastrophic injuries. That practice is driven by what I would hope to be an uncontroversial belief: namely, that the cost of an injury should be borne by the person who caused it, rather than by the victim.

As a result, and specifically as a result of my representation of a ten-year-old boy who was brutally mauled by a neighbor’s pit bull dog, I have recently been thrust into a heated and, at times, toxic public debate concerning the dangerousness of certain breeds of dogs.

This debate has been particularly frustrating for two reasons. First, it is a debate in which the two sides do not actually disagree about the important parts. Second, it is a debate that has distracted from the real issue. If we as a society are interested in preventing serious injuries or death and adequately compensating victims, the dialogue has to change.

On April 28, 2007, ten-year-old Dominic Solesky was attacked by a neighbor’s pit bull dog behind his family’s East Towson home. The dog bit Dominic many times, but finally bit deeply into Dominic's groin, and severed his femoral artery. Ordinarily, such an injury is fatal within minutes.

If not for the heroic efforts of neighbors, EMT responders and Johns Hopkins physicians, Dominic would not have survived the attack. Instead, Dominic spent 17 days at the pediatric ICU and a year of rehabilitation for his injuries. Dominic did nothing to cause or to deserve this attack. Dominic’s story is one of too many in the United States, in which the tremendous personal and financial costs are imposed on innocent families.

The Solesky family hired me to represent them, and I brought suit against the owner of the pit bull dog and the owner’s landlord. The pit bull’s owner promptly filed for bankruptcy, leaving the Soleskys to bear the costs of Dominic’s injuries. The Soleskys proceeded, therefore, with their suit against the landlord.

The landlord’s insurance carrier hired attorneys who initially tried to blame Dominic for the attack. When this proved unsuccessful, the landlord sought protection under a Maryland rule that required a victim to prove that the landlord or owner had actual prior knowledge of the viciousness of a dog before the landlord could be held liable. Even though the landlord had explicitly permitted two pit bulls on the leased property, the landlord also attempted in that lease to disclaim any responsibility for attacks by the pit bulls.

At trial, the landlord claimed that the Soleskys could not prove that the landlord knew that the pit bull was dangerous. If the landlord had been successful, the Soleskys would have had no recovery against anyone for the attack on their son.

The case went before the Maryland Court of Appeals, and on April 26, 2012 that court issued an opinion changing the Maryland common law. That new law has two aspects. First, any owner of a pit bull is liable for injuries caused by that dog without a showing that the owner knew in advance that the dog is vicious. (In the law, this is called “strict liability.”) Second, if the owner is a renter, then the owner’s landlord will likely be held strictly liable.

Because the opinion concerned only pit bulls and not all breeds of dogs, the opinion unleashed a firestorm of public debate. I have since been interviewed by roughly 20 members of the media, and have appeared on television and radio. This debate has gone on for months in the media and before a legislative task force in Annapolis.

Many Marylanders took issue with the court’s opinion, which they viewed as “discrimination.” Some even likened it to racism (an argument that really trivializes race relations in this country). From my perspective, these arguments fall flat.

My primary concern remains, as I believe it should remain for everyone, that catastrophic accidents should be avoided and that victims should be compensated for their injuries. Whether any “stigma” is placed on a particular breed of dog is not as important. The victims should matter more.

Others took issue with the statistical data on which the decision was based. Again, I disagree. Studies have shown that pit bull dogs are responsible for 60 percent of U.S. fatalities caused by dogs.

The dangerousness of this breed was recently confirmed by University of Texas physicians, Dr. Bini and Dr. Cohn, in Annals of Surgery, Volume 253, April 2011, where they concluded that pit bulls present an unacceptable actuarial risk for humans and are, in fact, an inherently dangerous breed. Americans love their dogs, however, and a certain segment of the population will simply not be convinced of this until they observe it themselves. (Google the name “Darla Napora” for a particularly sad and gruesome example.)

Strangely, however, the two sides of this debate largely do not disagree when the issue is framed in terms of personal responsibility. Americans love dogs, but they also believe in personal responsibility. As I have observed over the last three months, even the staunchest pit bull defenders do not challenge that a dog owner should be liable for injuries that their dog causes.

Generally, therefore, no one in the debate seems to oppose a rule extending strict liability to all dog owners. From a victims’ rights perspective, that would be a reasonable outcome. I am not concerned with whether pit bull owners are treated differently than owners of other breeds. I am only concerned with whether injuries are prevented and victims are compensated for their injuries by the people that caused them.

This view appeared to be carrying the day at the task force hearing on June 19, 2012, and Delegate Curtis Anderson and Senator Brian Frosh told the Daily Record last week that they intend to introduce identical bills in the General Assembly that would extend the Court of Appeals strict liability rule to all dog owners. The devil is in the details, however: the proposed bill would not likewise expressly hold landlords responsible.

The proposed bill, as a result, would do little to prevent violent dog attacks or to ensure that the families of victims like Dominic Solesky are not left to bear their medical expenses on their own. Remember, when the Soleskys sued the pit bull’s owner, the owner was able to avoid liability by filing for bankruptcy protection. Without assets or insurance, the dog’s owner can avoid having to pay.

Victims like the Solesky family might likewise be driven into bankruptcy as a result of medical bills. Meanwhile, if the proposed bill goes forward in a manner that takes the landlords and their insurers’ off the hook, those who could actually be in a position to prevent these attacks and to pay the victim’s medical bills will be out of the picture.

Remember, in Dominic’s case, we had a landlord who knew that the pit bulls were being kept in a residential neighborhood, referred to the pit bulls in the lease, and self-servingly tried in that lease to push responsibility for attacks onto her tenants.

I maintain my belief that victims’ rights should be paramount. If this debate has been about balancing victims’ rights against the rights of people to keep dogs of a particular breed, however, I fear that both sides may be losing. This needs to be understood—this debate should never have been about the dogs.

The Solesky family did not bring suit because they hate pit bulls. The Solesky family brought suit because their son was nearly killed and someone should be held responsible for that. I can only hope that their effort is vindicated, and out of this debate a law emerges that ensures justice is done for the victims.    

 

Kevin A. Dunne is a shareholder at Ober|Kaler in Baltimore and represents the Soleskys. 

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