Long time readers of this blog might remember my discussion and article on the debate on whether courts should recognized a cause of action against the owner (or possessor) of a pit bull even if there is no evidence that the defendant knew or should have known that the dog had dangerous propensities. Although it is not the rule in many jurisdictions any more, this requirement is very common.
Back in 2012, this was a very hotly debated topic because a court in Maryland decided that a plaintiff could support a claim against the owner of a pit bull based on the argument that the defendant knew the dog was a pit bull. (See here.) In other words, the court held that the nature of the breed was such that simply knowing the dog was of that breed meant the defendant knew or should have known the dog was dangerous. Eventually, the Maryland legislature adopted a statute that changed the state of the law. (See here, here and here.) You can find a copy of the article I wrote on the subject here (which I will be updating soon with a copy of the final, published version).
The issue was again in the news recently, this time in Tennessee. As reported in the TortsProf blog, the Tennessee Court of Appeals affirmed dismissal of a civil claim which asked the court to create a “big dog exception” to the notice requirement.
In the Maryland case, the plaintiff based the argument on the arguably aggressive nature of the breed of the dog. In this case, the plaintiff based the argument on the size of the breed, arguing that “it is common knowledge that Great Danes are an
extraordinarily large breed” and “that its size alone placed the
Defendant on notice of any dangerous propensity.” The plaintiff also argued that “Great Danes are a suspect class of dog” because
they are “a large and naturally dangerous animal, based on size, weight,
The court rejected the argument, holding that "we, like the trial court, decline to craft an exception
to the long and well established rules in dog bite cases, based solely
on a dog’s size or breed" and affirmed the summary judgment based on the lower court's finding that there was no evidence that plaintiff knew or should have known that the dog had any dangerous propensities.