*1 in handling such matters. Since substantial evidence in light of all the record was presented to sustain its findings, the Commission’s decision should not have been set aside. Nor should the court examiner, have directed the hearing remand, to “make findings of fact upon based the entire case,” record in this including findings based on the testi- mony of witnesses whom the hearing examiner evidently did not believe. The hearing examiner ap- concluded that pellant had proved aby preponderance of the evidence that the legitimate, non-discriminatory reason “was not the actu- al reason” merely pretext but for discrimination. There was substantial evidence to support that conclusion.
The court erred in substituting its view of the facts for that of the responsible administrative agency. We remand the case with instructions to affirm the decision of the Commission.
JUDGMENT REVERSED AND REMANDED WITH IN- STRUCTIONS TO AFFIRM THE DECISION THE OF COMMISSION ON HUMAN RELATIONS.
COSTS TO BE PAID BY APPELLEE. A.2d
Roy SLACK, A. et ux.
Dorothy VILLARI, et vir. Term, Sept.
No. 1983. Special Appeals
Court of Maryland.
June 1984. *4 Buchanan, John A. Marlboro, Upper with whom were Una M. Perez Sasscer, and Glagett, Bucher, Channing & Upper Marlboro, brief, on the appellants. for
Patrick Duley, Upper Marlboro, R. whom with were Kev- in C. Gale and Haskell & Duley, Upper Marlboro, on the brief, for appellees. LISS, ALPERT, and JJ.
Argued before WEANT WEANT, Judge. for him.” you, a runs at So advised dog
“When whistle Thoreau. Henry David Slack, of named and the owners a
Roy Winifred case, have appealed and in this appellants Gideon George’s which held them County jury of a Prince verdict consor- personal injuries for and a concurrent loss of liable appellees, Dorothy and Villari. tium sustained Carl to Dorothy attempted when Villari injuries The occurred appellants’ dog. confrontation with the apparent avoid an of damages a verdict for jury The returned amount $42,500 $2,500 for Dorothy injuries Villari’s accompanying privation consortium. of “Essential Facts” tran- agreed statement {sans as in this references) in this follows
script appears case expedited appeal: p.m. night on the June
Between 8:30—9:00 evening their taking customary Mr. and Mrs. were Villari Clinton, They along Maryland. stroll Caldran Drive on Drive. As public on a sidewalk Caldran walking were driveway, they and while they walking were across a sidewalk, saw, still Mrs. Villari out public were on the were eye, something they the corner her white. As a hold of. her husband’s arm. As she walking she had coming already the air turned she saw heard teeth. growl She a low she saw towards them. by a leash. At no time was the restrained from Mrs. protect dog, In an to herself attempt so, her her As she did Villari behind husband. moved something caused caught something heel or in which balance, keep her and to from body her to twist. She lost herself. falling, up reached her husband balance she go her so, searing pain she she felt from back As did her that' leg way her all the foot. At through down did fall actually time she She not was unable move. fell. had herself before she caught but *5 This incident occurred front of the house owned the appellants, Mr. and Mrs. Slack. Mrs. Slack was present in the carport during area the occurrence. The Villaris prior remained on the sidewalk to and during occurrence and it occurred in the middle the sidewalk. Mr. V. Edward Dorsey, Department Jr. from the Transportation Works and Public testified that the side- walk in front of the Slack’s house was a right- dedicated of-way open public use.
The dog did not touch or bite Mrs. Villari. Nor did it touch or Mr. dog bite Villari. The came down from the Villaris, driveway towards the got within a few inches of them, snarling and was growling them. Mr. put Villari his arm up protect himself dog’s and the right mouth was there next to his wrist where his watch was and he him, could feel the dog breath but the [sic ] dog did not him. dog bite started to return house and then it came back again. at them The entire time the near was them Mr. Villari yelling, “No! No! No!” At the same time Mr. yelling Villari was at the dog, Mrs. thought Villari she heard the word “house” and then the dog turned up around and went back to the house. From that time Mrs. Villari first the dog saw until the time it went back into the house she estimated that between 30 passed. seconds one minute
Although Mr. and Mrs. past Villari had walked occasions, house on many had they never seen They before. did not bitten, know of anyone dog had growled or snapped at before this incident. Mr. Villari did not fall or injure himself.
Mrs. Villari testified day that the after the occurrence she had telephone conversation with Mrs. Slack. Ac- cording Villari, to Mrs. Mrs. Slack said that had she known anyone there was in the driveway she would not have let out of the backyard, and that she could not control the Mrs. dog. Slack could not recall all the details of the state[d], conversation but I "... am assum- ing she is not lying, so if I had said that people are it’s— and since he was a Dober- large dogs
normally afraid avoid.” thing you just kind of would it just man was *6 that she not have said that she would Mrs. Slack testified given that if conflict- dog, stated not control the but could obey her husband. dog the would ing commands Doberman, “Gideon,” as a the acquired The Slacks had him replacement as a They got old puppy. five-week was to had killed. Gideon who been another Doberman son, first who was for the Slacks’ special dog as a serve handicaps. born with previously had never testified that Gideon
Mrs. Slack He had by the Villaris. in the manner described behaved dog. calm always and had been a anyone; never bitten dog, Mrs. trained principally Mr. Slack Although him. Mrs. Slack controlling any never had trouble Slack occurrence, had let she night on the testified that to let him preparing backyard. out in the She Gideon heard or saw some- and Gideon through carport door, dog kitchen into the going Instead of thing. anybody did not see Mrs. Slack Mrs. Slack. past walked him, he she called When driveway. the end of the at had anything was not aware came Mrs. Slack back. a phone she received day The next at the time. happened call from Mrs. Villari. normally that Gideon was further testified
Mrs. Slack He did not backyard. in the or fenced in the house kept rang the doorbell when but would bark people, bark at neighborhood children Other dogs. and at other also and Mrs. Slack him. Mr. played with came any person, at growled never dog that the had testified times in the nine three or four dogs other and had chased to a According him. had owned to ten the Slacks years prob- not cause dog did Szymkowicz, neighbor, John practic- Szymkowicz Mr. neighborhood. lems in the that it and stated Maryland in the attorney State ing to the opinion did render an that he good possibility awas were dog attack laws law as to what Slacks Maryland. in the State
Gideon was described as a pinscher Doberman approxi- mately 24 high inches at the shoulders and weighed most pounds five heavier than as “1”, shown Exhibit
At no time during this incident was under restraint by a leash. When Mrs. Slack moved the from the backyard to the house she did not hold the dog by the collar. Prince George’s County, Maryland has adopted a leash law which was the law at the time of this occurrence.
As a result of the injuries sustained by Villari, Mrs. she saw her doctor the following day put and was on muscle relaxers and ordered to bed. She went in the hospital for traction from June 1979 to July 1979. Subsequent *7 thereto she returned to the hospital 11, on September 1979 where she remained until October 1979 and underwent a fusion on the 4th and 5th lumbar vertebrae in the lower part of her back.
That as a result of the injuries sustained by Villari, Mrs. she incurred medical $20,000 bills in excess of plus lost wages from July of 1979 until November of 1981. The issues of her losses and the amount of judgment the not at issue in this case.
At the conclusion of the case appellants the moved for a directed verdict on grounds the that there had been no showing of any primary negligence on part of the appellees. Mr. Buchanan [attorney for appellants] ar- gued that there was certainly no showing of any prior vicious conduct on part and that there was absolutely no showing that they knew or should have known that this particular incident or occurrence had ever taken place before or that they had any knowledge that it might place take as described. Mr. Buchanan further argued that the leash law did not apply to this case and that the court should not have instructed the jury leash law. For the arguments final on this issue see the copies attached argument from the trial. directed Buchanan’s motion for
The court denied Mr. proceeded the conclusion of the case verdict at the jury. instruct erred that the trial court
In contend appeal this Slacks their motion for directed verdict because: denying County leash George’s of the Prince A. A violation negligence law, type of the proven, if was not evidence on own- personal injuries impose liability required ers of domestic animals. knew, or in Appellants that prove
B.
did not
Appellees
known, that
have
of reasonable care should
the exercise
the acts which
had the
to do
“Gideon”
injury.
caused
]
[sic
law,
may
owner
Maryland
current
Under
under two alternate
for the acts of his animal
responsible
the latter
liability,
or strict
liability negligence
theories of
—
propen
knowledge of the animal’s
arising from the owner’s
254 Md.
Burgess,
harm.
McDonald v.
sities to cause
See
Wood, 249
(1969); Finneran v.
452, 456, 255 A.2d
Md.
(1968);
Ziegler,
Herbert v.
Md.
471 Hunter, 188, Development Corp. Paramount 249 Md. (1968). In 238 A.2d 871 order for the of a violation negligence, statute to be evidence of that violation must result in an to a injury member the class the statute was designed protect injury sustained must be the statute type prevent. which intended to was Garden Russo, 25, 34, Md.App. 366 village Realty A.2d (1976). 107-08 These legal determinations are made 242, 259, trial judge. Aravanis v. 237 Md. Eisenberg, (1965). A.2d particular ordinance in provides, at issue this case in
pertinent part, owner of any shall allow “[n]o such animal to be at in the large County____” Prince § Code, (1979, George’s (em- 3-106 County Repl.Vol.) phasis added). 3-101(a) Section states that an “[ajnimal at large shall mean an animal not under restraint and off the premises of his guidance owner.” Further is found in § 3-101(6), says which that an animal “under restraint” (1) shall mean an animal: secured a leash or lead and responsible (2) under the control of a person, or confined vehicle, (3) within a property within real limits of its owner.
Therefore, question the initial to be answered is whether, under the facts in the case sub judice, fact, large” “at meaning within the of the statute. blush, At first one might conclude that Gideon was “at large” at the time of litigated note, occurrence. We § however, that the penalty provided by 3-106 for any dog whose owner shall allow him to large be at County impoundment. It is inconceivable that the designers of this had in impoundment law mind the of a dog for merely straying onto the sidewalk in front of its owner’s residence. Furthermore, question restraint, was under requirement albeit verbal. There is no that the animal under leash or lead premises when on the of its owner. further, Considering large” the term “at we observe that § “In provides: 3-108 addition or in lieu of impounding a
472 to the known owner may a notice issue large, found at
dog and desist a cease along the violation with dog such not intend- obviously penalty In our this was order.” view in the case such as we have from instances ed to flow nonsense. could lead to bureaucratic otherwise To hold bar. large” not “at maintain that Gideon was we Consequently, alleged. as case was dog that the in this conclude
Although we he the claim that was examine large,” “at we will not and was private premises of the off “allowed” venture The state question. agreed of the statute thus violative opened gate indicates that Mrs.' Slack ment of facts through the house him to enter enclosure to enable Gideon’s Mrs. Instead, past “the walked door. the kitchen his proceeded beyond had after Gideon Moments Slack.” him; re he she called driveway mistress and down she was not testified that Mrs. Slack immediately. turned no indica There is the Villaris. the incident with aware of bounds, or out of going that she knew tion mere acci premises. him to leave she “allowed” the owner’s animal, proof of an without escape of dental to consti is insufficient evidence negligence, knowledge in identical couched statutes of similar tute a violation 262, 475 P.2d Ariz. Cooper, terms. Santanello See 596, 211 S.E.2d Norris, Ga.App. (1970); Jett in 34 A.L. collected cases (1974). generally, See reh. den. service; § 4 Am. and later case 1285, 4 at 1289-91 R.2d Mrs. § proof 116, Animals, 367-68. Absent pp. Jur.2d Gideon, no violation control failing Slack’s even might incident The same occurred. the statute Certainly leash. under a been had place have taken of a was that Mrs. Slack of care exhibited degree person.” “reasonable the part statute on of the no violation
Because there was the motion failing grant erred Slacks, court of the liability by way issue of on the verdict for directed negligence hypothesis. *10 Liability-
-Strict
The
of an animal may
responsible
owner
be
for
injuries
caused
that animal under the
of
principles
strict
concept,
Under this
the
liability.
liability
owner’s
arises
from
the
exposing
community
dangerous
to known
beast
any negligence
keeping
rather than
or
his
controlling
§
Prosser,
Torts,
(4th
1971).
animal.
Law
76 at 449
ed.
of
Unlike the
of
theory
recovery,
liability
where
attaches at the time of
of
occurrence
or
injury
damages,
of the
gist
liability] action is
keeping
of
“[t]he
[strict
knowledge
animal after
of its
propensities.”
mischievious
380, 385,
62 Md.
Twigg Ryland,
(1884).
A.R. 226
In
order to hold an animal owner liable under this
“the
theory,
knew,
claimant must
that the
show
owner
or
the exercise
of ordinary
care,
and
known,
reasonable
should
have
of
inclination or
of
propensity
the animal to
the particular
do
mischief that was the cause of the harm.” Herbert v.
216,
Zeigler, supra,
also,
at
[T]he
only
need
as
him
put
guard,
such
on his
and to
require him as an ordinary prudent person to anticipate
or
act
conduct of the dog resulting in the
for
injury
sought
which
owner is
to be held
The
liable....
owner’s
knowledge
be,
propensity
may
is,
generally
and most
acquired from its
conduct
behavior,
knowledge
such
although
acquired
may be
from
other
persons, and
some cases the knowledge of others
is imputed to the owner.
[Citation omitted.]
Id. at
The Slacks contend that their motion for directed verdict should have been granted because the Villaris failed or that the knew should have known
prove appellants alleged, i.e., rushing to commit the act Gideon’s in front passing yard. of “his” jumping persons evidence, agree. is not an iota of such we Because there determining whether a directed standard is “A directed granted extremely should be strict. verdict any where there is relevant inappropriate legally verdict evidence, a ra competent slight, however from which mind infer a fact if found exist would tional could which moving party.” for the Plati judgment Impala prevent Inc., num, (U.S.A.), 283 Md. Impala Ltd. v. Sales 328-29, (1978). Nonetheless, there are 389 A.2d 905-06 *11 the appropriate. in directed verdict is circumstances which in Liberty stated Mob. v. recently As Cavalier Homes we 367, Homes, 379, denied, 454 295 Md. Md.App. 53 A.2d cert. (1983): 736 facts, and which any the rational inferences
Whenever them, may point strongly be from so toward drawn of cause party’s non-existence of an essential element a for that reasonable man could find of action or defense no existence, of has appropriate non-persuasion its level is proper. and a directed been reached verdict at A.2d at 372. Id. injured courts denied an
Maryland recovery by have demonstrate the owner’s where he has failed to plaintiff harm. The his animal cause propensity scienter keeper liability or charge notice which will owner with must mischievous conduct the animal the vicious or particular it is inclined to do the notice that be mischief supra, at Twigg Ryland, that has been done. v. Wood, In the 226; accord, supra. A.R. at Finneran v. toward “fiercely disposed” of a notice that he is dog, case similarly that he to mankind. cattle is not notice is inclined 227. the same supra, Following at 50 A.R. at Twigg, that a Court held evidence reasoning, the Finneran stall, in at her her or frightening horse kicked at someone her horses, determining of scant significance other 647-48, to kick 241 A.2d propensity humans. Id. at at 581-82.
Neither will the fact that
regularly
the animal is
restrained,
maintained in an enclosure or otherwise
stand
alone,
ing
constitute legally
tending
sufficient evidence
knowledge
show the
propen
owner’s
the animal’s vicious
sities or inclination to
people.
bite
McDonald Burgess,
457-58,
supra,
McDonald,
In Martin, supra, Goode v. our predecessors held the might presumed knowledge defendant to have had dogs that his dangerous were fierce and from the fact that he during was accustomed them tied keep daytime. These cases not certainly are for the authority proposition ... that it not essential to facts establish which put could an owner on notice of potentially vicious dogs his animal. The fact that the kept here were an enclosure in a suburban area day legal when restrictions frequently dog’s forbid a *12 running large significance at cannot have the same that of matter enclosure had in 1916 Clark [Backman ] and 1882 v. Martin [Goode ].
McDonald,
supra, at
The court plaintiffs McDonald also disabused the of the notion dog that the owner of the of dog’s knew his vicious propensity particular because the shep- breed—a German dangerous. herd—was known to be The in plaintiffs that case supported position their with an affidavit from an George’s officer of Prince Police Cqunty Department’s K-9 Corps which attested to the fact that this of dog breed manner____” “can and does often behave a vicious very the that the mere fact that Appeals The held Court an belongs unsavory a breed with injures plaintiff that a that the was of particular absent evidence reputation, nature, prove is insufficient to scienter. Id. violent 458-60, at 302-03. 255 A.2d culprit judice, in the case
Turning to canine sub at, bitten, growled is that had never the record clear Gideon He at the any person. attacked would bark previously or and, on four times nine or of the doorbell three or sound contention dogs. chased other The Villaris’ years, ten had that his a threat to humans and presented that Gideon rests, danger following on the that owners were aware facts: portion agreed statement of after the occurrence she day Mrs. Yillari testified that According conversation with Mrs. Slack. telephone had Villari, had known there Mrs. Mrs. said that she Slack in the have let the anyone driveway she would not she could not control dog out of the that backyard, not all details of the dog. Mrs. Slack could recall she not assuming “... Iam state[d], conversation but normally said are afraid people so if I had that lying, it’s— Doberman, just he it was large dogs and since was a avoid.” Mrs. Slack thing you just kind would could not She would not have said that she testified that conflicting com- given but stated that if dog, control the her obey mands the would husband. did show that Mrs. could and control
Clearly the facts Slack - introduced to tarnish dog. No other evidence was notice of his or to establish tractable character Gideon’s The in the act. fact engage injury-causing alone, pinscher, standing will a Doberman that Gideon was proof particular a substitute this not be considered an or violent nature. Mc- pinscher obstreperous was of wont to Donald, fact the Slacks were supra. house, in light in an enclosure inside the maintain Gideon McDonald, Appeals’ supra, discussion of the Court of part of any knowledge on their imply not be used will *13 engage inclination Gideon’s the kind of activity that resulted harm Villari. to Mrs. us,
Based on the record before
Gideon did on
what
this
isolated,
appears
unfortunate occasion
to be an
single occur-
had,
time,
rence. There
evidence
any
was no
that he
at
similarly
past;
behaved
there was no knowledge
chargeable to the
that might
particu-
defendants
he
do this
act.
lar
What occurred was
not
clearly
anticipated, nor
Smith,
it have
Compare,
could
been.
Hamilton
Md.
(1966) (nine
JUDGMENTS REVERSED. TO BE BY
COSTS PAID APPELLEES.
ALPERT, Judge, dissenting:
The majority concludes that the failed to produce, Villaris law, as a matter of sufficient evidence of Slacks’ negli- gence liability strict to survive a motion for directed result, In I reaching verdict. this believe the majority proceeded accepted scope appellate has far beyond by deciding usurping issues and review factual function *14 view, Moreover, ignores decision jury. my today’s large of and of purpose body the leash laws overlooks the caselaw which holds that these laws are not violated the some act In negligent by of the animal’s owner. absence a whereby jury there sufficient evidence my judgment, was find the Slacks liable under either a or could liability Accordingly, respect my due theory. strict with colleagues, this learned I record dissent.
The Evidence of Pervading opinion the are conclusions fact majority’s according parties’ agreed are conflict the state- which example, facts. For the majority ment of “maintain[s] alleged” not large’ was ‘at as because was Gideon straying the sidewalk in front of its owner’s “merely onto (cid:127) restraint, Ac- residence” was “under albeit verbal.” facts, agreed to the of this incident cording statement when standing in front of Slacks’ occurred Villaris were house, open use.” right-of-way public “a dedicated for Gid- them, snarling “got eon within few inches and was Mr. raised his arm to at them.” When Villari growling himself, right mouth there next to dog’s “the was protect feel the dog and he could his wrist where his watch was I him, fact, on From this statement fail ...” breath [sic] conclude, law, matter see how the as a majority could See, his premises was “off the owner.” that Gideon not § 3-101(2) (1979, Repl. George’s Prince Code County it decide whether the Vol.). jury I believe was words, In other I property. on or off the dog was Slacks’ trial, it the evidence adduced based on believe was “at function to resolve whether Gideon jury’s large.”
Furthermore, reliance I majority’s cannot abide “under verbal re- that Gideon was vague possibility animal be re- requires law that an straint.” leash a vehicle “a lead ... confined within strained leash or limits of its owner.” Prince property the real or within § 3-101(6). Code, does this ordi- County Nowhere George’s nance countenance restraint by verbal Thus, command. Mrs. Slack’s purported verbal restraint of her dog is irrele- vant to the majority’s analysis. Assuming for the sake of argument that “verbal restraint” would prevent from being “at I large,” once again find that the majority has reached its conclusion by deciding issues which rightfully should have been decided by jury. Mrs. Villari testified that on the day following the attack Mrs. Slack informed her that “she could not control the dog.” While it is true that Mrs. Slack denied making comment, this it is not the function of an appellate court to assess the *15 credibility witnesses and thus base its conclusion on Mrs. Slack’s representation of her ability to control Gideon. Patently, it is the jury’s function to decide such disputes. testimonial
The majority goes determine, then on to as a matter of law, that Mrs. Slack did not “allow” Gideon to run “at large.” This determination is made through further judicial fact finding. The majority “[mjoments declares that after proceeded Gideon beyond his mistress and down drive- way him; called he returned immediately.” [Mrs. Slack] Mrs. Slack merely testified that him, she called he “[w]hen came back.” This testimony hardly connotes an immediate fact, return. In according Villari, to Mrs. “30 seconds to one minute passed” from the time she first the dog saw until it returned to the house. The agreed statement of explains, facts “The dog started to return to the house and then it came back Thus, at them again.” it appears that the has majority acted as the trier of fact accepted and Mrs. Slack’s and testimony disbelieved Mrs. Villari.
The majority opines further that is no indication “[t]here knew the dog going bounds, was out of [Mrs. Slack] that she ‘allowed’ him to premises.” Yet, leave the Mrs. Villari testified that Mrs. Slack told her “that had she known there anyone in the she driveway would not have let the dog out of backyard, ...” if Manifestly, Mrs. Villari’s believed, testimony jury a could find that “Mrs. Slack dog knew the was going out of if bounds” people were walking at the end of the driveway. Again, the with no
majority accepts Mrs. Slack’s version the events testimony by consideration of the the Villaris. view, my opening
In door to enclosure Gideon’s permitting to leave the enclosure without leash, unrestrained Mrs. Slack “allowed” Gideon walk “at possibility and risked the that the might become large.” Liability
Theories of assert that error for trial court Slacks it was of all deny their motion for directed verdict the close the evidence because law, A George’s County
A. violation of the Prince leash type if not proven, was evidence on own- required impose liability personal injuries ers of domestic animals. knew, inor
B. The did not that the Slacks prove Villaris known, that should the exercise of reasonable care have acts that had the do the ‘Gideon’ injury. caused “assuming that breach
They posit arguendo further *16 negli- of might the ordinance be evidence provision a of cases, this it is that on the facts of gence some submitted to an on the case were not entitled instruction [the Villaris] leash law.” Villaris, action was submitted to the
According “[t]his general negligence of and of alternate theories [strict] on scienter.” liability based current
I view majority’s concur with the “[u]nder responsible for the acts law, dog may a owner be Maryland liability— theories of his animal under two alternative of however, I believe, liability, or strict ...” negligence fully has liability of never been negligence theory the separate court. These Maryland appellate explicated by have been recovery frequently theories of blurred. From danger is, sense, the fact that ain foreseeable from the of keeping animals, wild beasts and vicious some writers have concluded that the liability basis [for strict] animals, is the of keeping the owner in such and dicta of creep this kind into the text books and decisions. is not This the classical common law doctrine. legal It is not always negligence to perform sense acts which involve foreseeable Many harm others. which high or, activities involve a of degree probability indeed, a certainty statistical of harm to others are in no negligent. sense In case keeping dangerous of ani- mals, however, foreseeability of consequences harmful may important in determining whether harms are legal consequences of the of keeping animal, or whether the owner had sufficient scienter of its danger- propensities ous him charge with strict responsibility. If notice of present viciousness is the owner of is animals irrespective liable of negligence or care on his part in animal, keeping although keeping mere animal regarded is not culpable. as If there not notice of the animal, ferocious course, nature the owner may, still be liable for negligent keeping, but the basis of liability in the two must distinguished. cases be sharply § James, Harper & The Law Torts 14.11 833-34 (1956) (footnotes omitted). A. Negligence
The Restatement and jurisdictions other have acknowl- edged that an animal owner may be found liable without demonstration of the owner’s scienter the animal’s vi- cious where the owner has acted negligently in controlling his animal. This expressed view is Section (Second) 518 of the Restatement of Torts: for animal Except trespass, possesses one who harbors a domestic animal that does he not know or have reason *17 to know to be abnormally subject dangerous, to liability if, only if, for harm done the animal but
(a) intentionally harm, he causes the animal to do the or
(b) he is to the harm. negligent failing prevent (emphasis supplied). dog keeper negligent
A owner or who has with been its or keeping may injuries control be liable for respect resulting therefrom proximately irrespective whether of negligence a of propensity, there was known vicious knowledge of more than or dog may owner consist mischievous, al- his is vicious or cause believe if a an known dog has to exercise a though, opportunity owner, of propensity through negligence vicious liable, is, course, he proper safeguards of as where taken, keeper are not or the owner or fails to protection the dog. restrain or confine s}« J-s sfc sfs # sf: negligence owner’s impose liability, In order could proximate injury, must be the cause an which necessary it is not reasonably anticipated, béen but have particular injury happen which did have foreseen injury manner in which the occurred. the exact § (1973) sup- Animals, (emphasis 3A 188 at 690-91 C.J.S. omitted). (footnotes plied) articulated in cause action was further negligence
The
(1980):
Id. at 141 dis- approach has also been owner under the Randazzo, 144, 462 A.2d 94 N.J. cussed in DeRobertis
483
1260,
(1983);
1267
Hurst,
Miller v.
It is axiomatic that
the duty,
conduct,
or standard of
required by a
person
reasonable
particular
situation
may be established by legislative fiat. Volkswagen of
America v.
201, 218,
272 Md.
Young,
321
(1974).
A.2d 737
law,
Under Maryland
the violation of a statutory duty
prima
establishes a
facie case
negligence
where the
violation is the proximate cause of the accident or injury,
but does not constitute negligence per se. Whitt v. Dynan,
148,
Md.App.
154-55,
20
(1974).
122
315 A.2d
The same
principle applies to the violation of a county ordinance.
Paramount Development Corp. Hunter,
188,
249 Md.
193,
(1968).
The distinction between mere negligence’ ‘evidence of ‘negligence per marked, se’ is very in the former there must an adjudication be as to whether or not the violation constitutes negligence, whereas in the latter necessarily proof follows the violation____ Hence the violation is generally said to be prima negligence, and the violator of the rule is facie given an opportunity rebut the inference of negligence arising against him.
Whitt v. Dynan, supra,
(citations
315 A.2d
omitted).
In order for the violation of a statute to be
evidence of negligence, that violation must result
in an
to a
injury
member of the class the statute was designed to
protect and
injury
sustained must
the type
which the
statute was intended
prevent.
Gardenvillage Realty v.
Russo,
Md.App.
(1976).
The Slacks and that County,” within the regulate dogs “to activities action does not rise to a civil give of this law a violation argu- their support the animal. To the owner of against for fines ment, provides that the leash law point out they See, County George’s Prince procedures. impoundment §§ 3-106; 3-108, provi- and 3-104.2. Another Code, 3-109 for recov- provides procedure specifically of the Code sion *19 killed injured of animals the owners ery damages by of § Code, The 3-118.1 George’s County Prince dogs. by of the Code could have that the drafters suggest Slacks desired, dog for civil liabilities to had so they provided, running large. at by dogs caused their injuries owners for support the does not jurisdictions from other Caselaw Pennsyl- Court of Recently, Superior argument. Slacks’ to protect are “intended stated that leash laws vania and other damage injury, property public personal from Hurst, 448 v. roaming dogs.” Miller hazards caused (then of Supreme Court Supreme at 618. The Court A.2d of a local purpose has declared that Virginia of Appeals) hazards against protect public “to leash ordinance was the most obvi- large, including at dogs running created by Frieden, at 158 S.E.2d hazard, Butler v. ous bite.” running of purpose has that the opined Another court 123. of a an owner require is “to large at statutes it from prevent or to control over it physical maintain Brown, 607 v. Searcy sidewalks or streets.” roaming the are enact- Leash laws 937, (Tex.Civ.App.1980). 942 S.W.2d injury by dogs,” from property and protect persons “to ed 110, 114 276, Tenn. 385 S.W.2d 215 Armstrong, Alex v. interfer- unnecessary and (1964), “from unwarranted Allen, 574 Endresen v. running loose.” ence from animals 1219, (Wyo.1978). P.2d 1224 public evidenced protecting policy A similar high- running large at on to animals relating statutes 56, Ann.Code, (1983 Repl.Vol.) provides a Maryland art. 198 § 1. Maryland provision certain counties. for similar
485 only protect of these statutes “is not purpose The way. protect also to highways, off the but persons property Corey and their highway property.” on the persons 452, 410, (1954). Accord, Smith, 233 Ind. 120 N.E.2d 167, 287, (1955) Benton, Ga.App. 88 S.E.2d Griffin general public is to from “the evils” (purpose protect 77 N.M. running large); Ridgway, animals Mitchell v. (1966) (purpose protect 421 P.2d is to see, Cook, 494 P.2d motoring public). But Shuck v. is to (Okla.1972) of Oklahoma’s Herd Law (purpose 308-09 domestic animals crops ravages trespassing from protect Annot., 59 highway). motorists on the See also rather than (1958). 1337-40 A.L.R.2d that the is inconceivable majority posits “[i]t impoundment this had in mind the
designers of law onto the sidewalk front of its owner’s merely straying mind, an To removes my impoundment merely residence.” I discern no reason large” community. “at canine from the an animal which is “allowed” why person injured by from violator not seek redress the leash law large” may “at I I perceive civil action. base this belief what through *20 Thus, I leash conclude purpose the intent and of laws. designed leash law is to George’s County’s that Prince dogs from encounters with unattended protect public the encounters. the of which result from such type injuries a standard for establishing I the ordinance as perceive exercised the determining appropri- whether the owners See, for their animal. Butler v. controlling ate of care duty Frieden, 123. 158 S.E.2d at generally
I have held that jurisdictions observe that other not or “permit” that an owner shall providing statutes in large at are not violated the “allow” an animal to run negligence E.g., of the animal’s owner. Clark by absence (an Moore, 116, (Ala.1976) “allows” 341 So.2d 118 owner v. reason- large failing to run at when exercise the animal animal); Cooper, v. controlling care Santanello able 246, 262, (1970) (“allow” 250 means to 106 Ariz. 475 P.2d of, sanction, permit, acknowledge or to approve 486 996, Farrell, 248 Ark. large); is at Prickett
an animal permit by- 74, (1970) (“allow” means 78 455 S.W.2d Pawelk, Peterson v. prevent); to restrain or neglect that even (Minn.1978)(“permit” indicates N.W.2d running is knowledge that animal an owner has no though it to negligently allowed loose, way has some the owner (Mo.Ct.App. Hartzler, 351 S.W.2d so); do Keefer of an owner part on the 1961) infer (jury may Annot., large). See also fact that animal was from the (1954); 4 Animals Am.Jur.2d 1289-91 34 A.L.R.2d § (1962, Cum.Supp.). 367-68 116 at restraint cases should be
Thus, I that animal conclude First, the owner following analysis. under viewed some large through run at the animal to or allows permits Next, injury that some it is shown action or inaction. being unrestrained. from the animal resulted damage permit- has that the owner demonstrates plaintiff Where a has large, plaintiff to run at the animal ted or allowed the animal has violated the owner evidence shown generat- has act and through negligent some control statute question. ed a jury a violation of on the effect of are divided jurisdictions liability impose states absolute
a leash law. Some See, the discussion roaming dogs. e.g., caused damages statute, liability N.J.Stat.Ann. dog owner’s Jersey’s of New § Cum.Supp.),2' DeRobertis (West 1983-84 4:19-16 provides: 2. That statute person person such any dog bite a while which shall The owner of private place, lawfully in a public place, or on or in a is on or dog, shall be liable for including property of owner bitten, regardless person damages may as be suffered such knowledge such or the owner's viciousness such former viciousness. section, lawfully upon person purpose of this For the property in the he is on the property such owner when private *21 this state any duty imposed upon him the laws of performance of States, when he is regulations the United or postal the laws or or invitation, express implied, of the upon property on such thereof. owner supplied). (emphasis
487
Randazzo,
v.
See also Am.Jur.2d
Turning to the facts of the bar, case at I find that evidence was elicited showing that the Slacks had not complied with the leash law. Mrs. Slack’s “allowing” Gide- on to run at large was not an accident. She knew the was loose. did not jump over a fence to get to the Villaris. A neighbor child or did not inadvertently set Gideon loose. Mrs. Slack’s actions violated the standard care established the leash law and demonstrated evi- dence of negligence. Moreover, the trial judge could find the Villaris were included in the class of people the ordinance designed to protect and that Mrs. Villari suffered an injury attempted law to prevent. It is not unreasonable to expect that one endeavoring to avoid an unleashed dog might sustain an injury type sustained by Mrs. Villari. Such an event was clearly foreseeable. For an excellent discussion of foreseeability negligent “dog fright” cases, see Allen, Endresen v. 574 P.2d at § 1221-22. See also 4 Am.Jur.2d Animals 114 at 364 (1962, 1983 Cum.Supp.). Other “dog fright” cases include Farrior v. Payton, 620, 57 Hawaii 562 P.2d (1977); Jordon, Henkel v. Kan.App.2d 561, 644 P.2d 1351- (1983); v. City York, Machacado New 80 Misc.2d 365 N.Y.S.2d (N.Y.Sup.Ct.1975).
I would hold that Mrs. Slack’s violation of the Prince George’s County leash law could properly be considered by *22 as evidence of a jury negligent act which proximately
caused Mrs. Villari’s injuries.
B. Strict Liability
The owner of an animal may
princi
also be liable under
of strict
ples
liability.
type
liability
This
is not
based
negligent
an owner’s
acts in keeping
controlling
or
Instead,
animal.
the owner’s liability
exposing
arises from
Prosser,
to a
community
dangerous animal.
Law of
§
(4th
1971).
76 at 449
ed.
Torts
Unlike the negligence
theory
recovery,
liability
where
attaches on the immedi
ate occurrence of the
injury
damages,
gist of the
“[t]he
action is the
liability]
keeping of the animal after
[strict
knowledge
propensities.”
its mischievous
Twigg Ry
land,
380, 385,
(1884).
62 Md.
Maryland has subscribed to the strict liability theory of
for domestic
recovery
injuries
animal-related
for over one
years.
hundred
The law was summarized by
Judge
Chief
Hammond for the Court of
Appeals Herbert v. Ziegler,
212, 216,
(1958):
216 Md.
an animal
responsible
vicious characteristics
Thus, Maryland
closely
3.
law
tracks Section 508 of the Restatement
(Second)
provides:
of Torts. That Section
(1)
possessor
A
of a domestic animal that he knows or has reason to
class,
dangerous propensities
subject
know has
abnormal
to its
another,
liability
although
for harm done
the animal
he has
prevent
doing
exercised the utmost care to
it from
the harm.
(2)
liability
abnormally
This
is limited to harm that results from the
dangerous propensity
possessor
for which the
knows or has reason
to know.
fully
inflicted was
discussed Bachman v.
injuries
for the
245, 248,
(1916):
Clark,
Md.
(citation omitted). that their motion for Appellants posit granted appellees should have been because directed verdict that knew or showing appellants made an insufficient propensity to commit the act should have known Gideon’s alleged in the case sub judice. strict Maryland discussing
The first
case
a
owner’s
(1882).
Martin,
Early
whether this evidence
prove
tended to
that the owner had
dogs’
scienter of the
dispositions.
vicious
Smith,
In
Hamilton v.
242 Md.
(1966),
Evidence of a horse knowledge owner’s of a horse’s for harm was found in Herbert v. Ziegler, su- case, In pra. an year boy eleven old was thrown from a horse when horse was startled by growling barking dog. The father boy’s had rented the horse from a *24 riding boy stable. Thé introduced testimony tending particular show that this dog frightened had the horse on previous occasions. Accordingly, the of Appeals Court held the horse’s knowledge owner had of the horse’s habit of throwing approached its rider when dog.
A
store
pet
parrot bit a store customer in
v.
May Co.
(1931).
Drury, 160 Md.
properly jury tending submitted to the as to show that dog, the conduct of the which to the defend- was known ant, sufficient to as an put guard require her on act of the ordinary prudent person anticipate in the to the resulting injury plaintiff.
Recovery by
injured plaintiff
been
where scienter of vicious
was not demonstrated.
(1969);
McDonald v.
254 Md.
In my view the produced Villaris sufficient evidence to generate jury question a under (scienter) the strict liability cause of action.
JURY INSTRUCTIONS
As the majority held that the Slacks’ motions for directed
verdict
granted,
should have been
it was not
necessary
my colleagues to discuss
challenged
instructions.
jury
case,
Under
my analysis
this
a
required.
review is
judge
trial
first accurately
showing
articulated the
required
to find a
owner liable under the strict liability
(scienter) theory.
thereafter,
Immediately
the trial judge
told
jury
that if
found that
they
purpose
of the leash
that,
majority opines
5. The
],
Burgess, supra
plain-
In McDonald [v.
the Court dismissed the
that,
argument
Martin,
tiffs
based on the earlier cases of Goode v.
(1882)
Clark,
Md.
By
with
utterly
comply
failed to
instructions, the Slacks have
review
appellate
That rule restricts
Rule 554 e.
Maryland
stated” at trial.
distinctly
grounds
objection
to “the
to
opportunity
the trial
an
judge
is to afford
objective
rule’s
make
and to
erroneous instruction
alleged
the
consider
necessary. Sherrard
where
or corrections
additions
189,
296 Md.
456 A.2d
Hull, Md.App.
aff'd,
(1983).
I
I
the
“allow.”
use of
word
on the ordinance’s
elaborate
term, as it
of this
explanation
some sort of
believe
to the
case,
jury.
useful
this
would have been
related to
jurors
the
Also,
permitted
should not have
the trial judge
function of
leash law. It is the
interpret
purpose
Aravanis
court,
interpret
statutes.
jury,
and not the
It is my conclusion the court properly below acted and that judgments entered in favor of the Villaris should be affirmed.