Business owners achieved a victory in the Maryland legislature this month, as both the House Bill and Senate Bill introduced to establish dram shop liability were given unfavorable reports by legislative committees. Dram shop liability is a cause of action that can be asserted by plaintiffs who allege that they were injured as a result of an establishment’s sale of alcohol. The bill introduced in the Maryland legislature would have allowed for civil actions against establishments or their employees if 1) the defendant knew or should have known that a customer was visibly under the influence of alcoholic beverages; 2) the defendant could have foreseen that the customer might attempt to drive a motor vehicle; 3) the customer negligently drove a motor vehicle; and 4) the customer’s negligent driving proximately caused the damages claimed in the action.
Maryland courts have rejected attempts to assert dram shop liability, instead using a theory of premises liability to hold establishments liable in certain circumstances. E.g. Troxel v. Iguana Cantina, LLC, 201 Md. App. 476, 29 A.3d 1038 (2011). However, premises liability applies to acts or omissions on property that is under the defendant’s control. Dram shop liability seeks to hold business owners liable when an intoxicated customer negligently injures someone after leaving the premises that the business owner controls. The bills introduced in Maryland this legislative session would have allowed for dram shop liability only when an intoxicated driver caused the alleged damages. However, it is easy to see how that liability could be extended through future legislation to include such things as off-premises assaults, liability for hosts of private parties, or even serving the “habitually intoxicated” as some states do. Dram shop liability, a favorite of the plaintiffs’ bar, is an attempt to shift blame from the responsible tortfeasor to a business with “deep pockets.” While this bill is likely to be reintroduced next year, business owners are safe from such claims for now.
After several failed attempts in prior legislative sessions to take action against the Court of Appeals holding in the 2012 “pit bull” case of Tracey v. Solesky (for a closer look at the Solesky case, click here), the legislature finally succeeded in passing a new dog bite liability
bill law (the governor is expected to sign it) for incidents where a dog causes personal injury or death to a person. The new law has five key features:
(1) it applies with respect to all dogs, negating the Solesky Court’s determination that pit bulls were inherently more dangerous than other dogs;
“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, Read more
“Woof!” – Gracie the Dog (trusted friend, avid squirrel chaser, and Pit Bull…or was she?)
“Succumbing to the allure of bad facts leads inevitably to the development of bad law.” – Judge Clayton Greene, in his dissent in Tracey v. Solesky
In April, the Court of Appeals, by a 4-3 margin, issued a decision in the case of Tracey v. Solesky that effectively designated all “pit bulls” and “cross-bred pit bulls” as inherently dangerous animals, and the Court determined that the owning, harboring or controlling of these dogs was an inherently dangerous activity. This resulted in the Court applying a strict liability standard against any person owning, harboring, or controlling pit bulls for any injuries stemming from a pit bull attack. This was the first instance where a Maryland Court established a breed-specific standard of liability for dog attacks. Liability stemming from owning, harboring, or controlling any non-pit bull dog remains subject to the old common law standard of whether the owner knew or should have known about the dog’s dangerous propensities. In addition to the breed-specific nature of the ruling, the significant consequence of the Court’s opinion was that it applied this strict liability standard, not to the owner of the dog, but to the owner’s landlord when the landlord knows or should know of the existence of a pit bull on the premises. Read more
To every action there is always an equal and opposite reaction.
– Sir Isaac Newton’s Third Law of Motion
In October, the Maryland Court of Appeals issued a very disappointing ruling in the lead paint case of Jackson v. Dackman Co., which nullified a long-standing Maryland statute that granted qualified immunity from lead paint liability to $17,500.00 for rental property owners who took legislatively mandated steps to ensure that their properties were lead free. The Court’s decision was clearly inspired by the opinion that the compensation amount in the immunity provision was too low, but it failed to give any regard for the fact that the immunity only applied to owners who had substantial measures to ensure that their properties were lead free, and that owners who had not acted reasonably to eliminate lead paint from their properties were entitled to no immunity. The action taken by the Court in deciding the Dackman case set off a firestorm of debate, and it was only a matter of time before property owners, legislators, and other interested entities reacted to the decision with new ideas to protect property owners who complied with lead paint abatement laws. Read more