Published on: June 16, 2012
Ask condominium managers and trustees about the major headaches in their communities, and pets will invariably be at or near the top of the lists they create. Many issues engender strong feelings in the condominium world, but few equal the passions unleashed when pets are involved, as anyone who has tried to enact pet restrictions or enforce them can attest.
Developing pet policies that are acceptable both to owners who love pets and those who don’t has never been easy, but it is likely to become a lot more difficult, thanks to a recent court decision. In a case involving a Pit Bull that attacked and seriously injured a child, Maryland’s highest court ruled that a landlord could be held strictly liable for the damages if he knew or had reason to know that a Pit Bull was living in the dwelling, and failed to take steps to protect other residents.
This Maryland decision represents a change in the common law standard for determining the negligence of a landlord (or by extension, a community association) in dog bite cases. Under the common law standard, applicable in most jurisdictions, (including Maryland before this decision), landlords could be found liable for dog bite damages only if they knew or had reason to know that a dog was potentially dangerous to others. If the dog had not previously bitten anyone or otherwise demonstrated aggressive or violent tendencies of which the landlord was aware, the owner might be strictly liable for damages, but the landlord would not be.
The Maryland court rejected that standard in this case, because, the court concluded, Pit Bulls are more dangerous than other dogs and must be treated differently. Their “aggressive and vicious nature and [their capacity] to inflict serious and sometimes fatal injuries,” the court wrote, makes Pit Bulls “inherently dangerous.” As a result, the court explained, “we are modifying the Maryland law of liability as it relates to Pit Bulls and Pit Bull mixes [in attacks] against humans. With the standard we establish today, when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull …or should have had such knowledge, a prima facie case is established. It is not necessary that the landlord…have actual knowledge that the specific Pit Bull involved is dangerous.”
This clearly breaks new and unsettling legal ground, but it is applicable only in Maryland. So why should landlords outside of Maryland be concerned about it, and why should community associations, which are not landlords, be concerned about it at all? On the first point, although the decision does not set a precedent outside of Maryland, it may nonetheless influence how courts in other jurisdictions decide similar cases. And that influence could be persuasive.
On the second point, while condominium associations are not landlords, courts sometimes fail to recognize the distinctions, assuming incorrectly that boards have the same authority and the same obligations as landlords to control the behavior of residents in their communities – and the same “deep pockets” to compensate plaintiffs for their losses.
Cause for Concern
Condominium owners often make the same assumptions – both about a board’s obligation to act and an association’s deep pockets. Condominium owners sue boards for all kinds of things, so it is not difficult to envision that a condominium resident who is attacked by a dog will sue the association as well as the dog’s owner. And while the association might defeat the liability claim, it will still incur the litigation costs. The Maryland decision potentially creates enhanced litigation risks about which all community associations should be concerned.
Massachusetts condominiums don’t have to look only at the Maryland decision; they can find ample cause for concern about Pit Bulls closer to home. While the Massachusetts courts have not defined Pit Bulls as inherently dangerous, as the Maryland court has done, a recent decision by a Massachusetts Appeals court skirts close to that line.
This 2009 case (Nutt v. Florio) also involved a pit bull (“Tiny”), who attacked and injured a child. A Superior Court rejected the negligence claim against the landlord, finding no evidence that he knew or should have known the dog was dangerous. But the Appeals Court reopened the negligence door.
The court acknowledged that there was no basis under the common law negligence standard for imposing strict liability on the landlord. Additionally, the court noted, “the plaintiff does not argue that we should pronounce a rule that Pit Bull terriers are inherently dangerous by virtue of their breed, thereby in effect creating a new cause of action by imposing strict liability upon owners of properties where they are kept.”
A Higher Standard
But while rejecting a breed-specific strict liability standard for Pit Bulls, the court went on to suggest a different breed-specific standard for them: “While the defendants may not be held strictly liable by virtue of Tiny’s breed,” the court wrote, “knowledge of that breed and its propensities may properly be a factor to be considered in determining whether the defendants were negligent under common-law principles.” Translation: Landlords may not be strictly liable for damages caused by a Pit Bull, but knowledge that Pit Bulls are potentially dangerous may create a higher duty of care than exists with other breeds to determine whether a particular Pit Bull has aggressive or violent tendencies and if so, to take reasonable steps to protect others from harm.
The obvious question – or one of them: Do landlords and community associations have reason to know that Pit Bulls are more dangerous than other dogs? The conservative answer – that is, the answer designed not just to win a negligence claim but to avoid the litigation that might require defending one — is yes. There have been so many reports about Pit Bulls involved in attacks against people and other dogs, it would be difficult to claim ignorance of the breed’s reputation for aggressive behavior. That would be tantamount to landlords insisting they had no reason to know a broken railing or a missing window screen could be dangerous to a child. “We didn’t know Pit Bulls could be dangerous” would almost certainly be viewed with equal skepticism by a judge or jury.
The Massachusetts decision suggests clearly that landlords and association boards need to know what dogs are living in their buildings. If the canine residents include Pit Bulls or Pit Bull mixes, landlord and boards at a minimum, should investigate further to determine if those dogs have exhibited dangerous tendencies and if so, they should take steps to protect other residents.
Landlords concerned about Pit Bulls can add provisions to their rental agreements prohibiting residents from owning them. Association boards don’t have that authority. Boards can control the behavior of owners and their animals in common areas, but they can’t dictate what owners can and cannot do within their units. What boards can and should do is adopt rules that:
- Require all owners to provide information, including the breed, of dogs they currently own and to notify the board when they acquire new dogs, so the board can maintain a current list of dogs in the community.
- Require the owners of all dogs to keep them on a leash of a specified length (short enough to ensure the owner’s ability to control them) when they are in the common areas.
- Require the owners of all dogs – not just Pit Bulls but all dogs — that have demonstrated aggressive tendencies or violent behavior to keep those dogs muzzled as well as leashed in common areas. Boards in buildings with freight elevators might further require owners to use these elevators when taking their dogs in and out of the building.
- Establish procedures for managing complaints about aggressive behavior warranting the muzzling of dogs that have not previously been identified as aggressive. The procedures should allow complaining owners to detail the incident(s) and give dog owners an opportunity to rebut the complaints.
Problems with Bans
Association boards can do much to reduce the risks to other residents posed by potentially aggressive dogs, but they cannot adopt rules prohibiting residents from owning Pit Bulls or any other pets. Only the association’s declaration and by-laws can restrict what owners can do within their units. The board can ask owners to amend the documents to ban Pit Bulls and other breeds deemed to be inherently aggressive, but this may not be the best strategy for several reasons:
- It will be difficult, at best, to obtain the super majority vote required to amend the documents.
- The proposal will almost certainly trigger a bitter and divisive fight within the community. Owners of targeted breeds will certainly oppose the ban, but many owners of other breeds will sympathize with them.
- A breed-specific ban, even one that encompasses several breeds, may be challenged. Rescue groups for Pit Bulls and other breeds that have been labeled as aggressive argue consistently and often successfully that the dog bite statistics used to justify these labels are flawed. “There are no bad breeds,” these advocacy groups contend, “only bad owners.” The association may be able to defend a ban, but the litigation will be expensive.
- An association that bans selected breeds may be sued by someone bitten by a dog that isn’t on the banned list, who will argue that the board was negligent for not banning that breed, too. File this under the ‘you can’t win’ category.
While the arguments against bans are strong, they don’t erase the liability concerns the court decisions in Maryland and Massachusetts create. Associations that fail to ban Pit Bulls face the risk of negligence claims from dog bite victims who will argue the associations should have known Pit Bulls are dangerous and should have banned them as a result. They also face the reality that judges and juries are sometimes more concerned about finding deep pockets capable of compensating victims for their injuries than about whether those deep pockets have any legal responsibility for the damages. This is particularly the case when the victims are children.
Insurance Requirements: An Alternative to Bans
For associations that can’t win owner support for a ban, or don’t want to incur the cost of defending one, there is another strategy that may provide the liability protection they seek: Amend the condominium documents to require that all dog owners carry personal liability insurance (part of a standard condominium owners’ HO6 policy) that includes coverage for dog bite claims.
Many insurance companies will not cover dogs with a history of aggressive behavior and many won’t cover particular breeds they have identified as aggressive – a list that often includes Pit Bulls, German Shepherds, Dobermans, Chows, Akitas, Malamutes, Great Danes, and Siberian Huskies, among others.
Insurance companies are becoming increasingly concerned about dog bite claims and understandably so. Insurers collectively paid nearly $480 million dollars for dog bite claims in 2011, representing about one-third of all claims against homeowners’ insurance policies for the year. The Centers for Disease Control estimates that 4.7 million people are bitten by dogs every year and nearly 1 million of them seek medical care for their injuries.
The average dog bite claim was about $30,000 last year, according to insurance industry statistics, but individual damage awards can be much higher when injuries are severe or fatal. It’s no wonder that insurance companies are concerned, and community associations should be too.
Some insurers have reportedly threatened to deny renewals for master policies if owners in the community have dogs the company defines as aggressive. I haven’t heard of any associations that have been denied coverage on that basis, but the threat is out there, and it provides a persuasive argument for amending the condominium documents, to make insurance coverage a requirement for all dog owners. Owners unable to obtain individual coverage for their dogs for any reason would not be allowed to keep them.
The governing documents of most condominium communities prevent owners from doing anything that impedes the association’s ability to obtain insurance coverage for the community. On that basis, associations could also bar specific breeds if their presence would lead the insurer providing the master policy to deny coverage for the association or increase its cost.
By linking restrictions on “vicious” breeds to insurance requirements, associations may achieve the benefits of breed-specific bans while avoiding the difficulties and litigation risks they can create. This approach also makes the insurer rather than the board the “bad guy” when enforcing breed restrictions. And there is much to be said for being able to blame someone else when telling dog owners they can’t acquire pets they want keep ones they have.