Court of Appeals Takes Another Bite at Tracey v. Solesky

     “It’s a mystery! It’s a mystery wrapped in a riddle inside an enigma! The *@*%#&^ shooters don’t even know! Don’t you get it?”     – David Ferrie (Joe Pesci) to Jim Garrison (Kevin Costner) in the movie “JFK”

On the heels of the legislature’s failure to address the quagmire created by the Court of Appeals’ April ruling in Tracey v. Solesky, where the Court decreed that all pit bulls and cross-breed pit bulls were inherently dangerous and imposed a strict liability standard against owners and anyone harboring such dogs, the Court issued a revised ruling yesterday after a motion to reconsider was filed by Tracey’s attorneys.   In the initial decision, the Court of Appeals ruled that if a person is attacked by a dog that is a pit bull or a pit bull mix (a cross-breed pit bull), then the owner, or any other person (which in this case included a landlord) who has the right to control the pit bull’s presence on the subject premises who knows or should know that the dog is a pit bull or cross-breed pit bull, is strictly liable for the plaintiff’s damages.  This ruling, with respect to pit bulls and cross-breed pit bulls, abrogated the former common law negligence standard applicable to dog owners that required evidence that the owner knew or should have known that the specific dog had dangerous propensities.  This decision received harsh public criticism for its breed-specific stance, its harsh application of strict liability to landlords and other potential third persons who do not own the dog, and the overwhelming confusion that would be caused by determining what constituted a “pit bull or cross-breed pit bull” or what standard should be applied for determining whether a person should know that the dog is a “pit bull or cross-breed pit bull.”

In its revised ruling, the Court eliminated “cross-breed” pit bulls from the holding because the case did not involve a cross-breed pit bull, which partially corrected a fundamental flaw of the Court accepting facts that were not supported by any evidence in the record.  However, the Court did not back down from the them and intent of its original ruling, and specifically left the door open to enacting the exact same ruling as to cross-breed pit bulls in the future upon being presented with a case involving a cross-breed pit bull.  In essence, after reconsidering its earlier ruling, the Court did not revise its earlier stance at all, and the only revision from the Court’s new opinion is that it decided to create more uncertainty than had already existed.  Now, a dog owner, landlord, veterinary clinic, animal shelter, etc. will be expected to determine if a dog is a pure bred pit bull.  What constitutes a pure bred pit bull – 100%, 95%, 85%, and how can this be determined without a DNA test?  Another flaw unaddressed by the Court is how someone is supposed to determine whether the dog is a pure bred pit bull, when there is no formally recognized breed of dog called “pit bull.”  Apparently the Court of Appeals believes that a pit bull can be defined in the same manner as obscenity – they won’t define it, but will expect the public to know one when it sees one.

The Court of Appeals should not be in the habit of bowing to public pressure.  In fact, they are appointed to life terms to avoid any such allegiance to the public whims.  On that front, the Court should be commended for maintaining its stance despite the overwhelming public outcry that they got it wrong.  That said, with the motion for reconsideration filed, the Court had an opportunity to reevaluate its earlier ruling and, in doing so, it could have learned from the several months of public criticism pointing out the myriad of unintended problems that the original opinion created.  Instead, the Court remained almost stubbornly defiant.  In fact, the Court’s revised opinion ventures to state that no new duty was created at all by the ruling.  That truly is an incredulous statement, given that a common law negligence standard has been completely abolished and replaced by a strict liability standard.  At the end of the day, four members of the Court of Appeals simply do not see the issues of this case in the same way as the overwhelming majority of the public and their three dissenting colleagues.   It is possible that the possibility of legislation will be rejuvenated when the State legislature reconvenes next year, but for the foreseeable future, pit bulls and their owners will be persona non grata to landlords, veterinarians, dog walkers, pet stores, dog parks, and any other person or place where dogs are normally welcome.