2016/5/26: Home Associations Need To Have Their Dog Rules In Order

By Benny L. Kass

May 26, 2016

My condominium association is overrun with dogs. We are concerned that someone will be injured and we will be sued because we did not impose the proper precautions. What should we do? -Anne

More than 4.5 million people are bitten by dogs each year, and according to the Centers for Disease Control and Prevention, almost half were children. And 1 out of 5 bites becomes infected, with diseases such as rabies or MRSA – a type of staph infection – or bacteria such as capnocytophaga or pasteurella.

In fairness to dog owners, the CDC reported that during the early part of this century, more cats than dogs were determined to be rabid. “The majority of these cases were associated with spillover infection from raccoons in the Eastern United States,” the CDC said, “and the larger number of rabies-infected cats might be attributed to fewer cat vaccination laws, fewer leash laws and the roaming habits of cats”

Typically when a person is bitten and is infected or severely injured, an insurance claim will be filed. According to the Insurance Information Institute, there were more than 15,000 claims – in an average amount of $37,214 – made in 2015. Homeowners in California filed the most claims; fortunately, none of us in the Washington metropolitan area made the top-10 list of dog-bite claims.

Because of the volume of claims, many insurance companies are refusing to insure homeowners (or community associations) where certain breeds of dogs are present. Dogs such as pit bulls, Rottweilers, Akitas and chow chows are often labeled as “dangerous,” and insurance companies will exclude injuries from these dogs or significantly increase the annual premium. You should immediately confirm with your insurance agent whether your policy covers dog bites and, if so, whether it covers all kinds of dogs.

For years, the law across the country was called the “onebite rule.” Owners — regardless of the kind of animal — would be held responsible (and liable) for injuries caused only if they knew or should have known that the dog had dangerous propensities abnormal to its class. The rule originated in England and was adopted as the common law in the United States.

Virginia still follows this rule. However, the owner may face criminal penalties if a “dangerous dog” causes injury or death. And all of the surrounding counties have some form of “leash law” requiring a dog to be on a leash at all times when outside of the home environment.

Additionally, all dogs over four months old must be properly registered with the county where they live.

In the District, dogs must be leashed, vaccinated and registered. The District has the power to impound a dangerous animal, defined as an animal that because of specific training or demonstrated behavior threatens the health or safety of the public. The “onebite” rule does not apply; if a dog injures a person while at large, lack of knowledge of the dog’s vicious propensity will not necessarily be a defense. The court will look at all of the facts to determine whether the owner was negligent.

Maryland has an interesting doglaw history. In 2012, the highest court in the state ruled that pit bulls are “inherently dangerous” and that owners of those dogs could be held to strict liability in the event of a bite. According to the court, “it is not necessary that the [pit bull’s owner] have actual knowledge that the specific pit bull involved is dangerous.”

Pit bull owners — and many other doglovers — rose up in arms, claiming this law unfairly singled out specific breeds.

As a result, the Maryland legislature enacted a law that in essence repealed the high court’s ruling, thereby adopting a strict liability approach for any dangerous animal. According to the new law, a dangerous dog is one that without provocation has killed or inflicted severe injury on a person. The law does, however, allow the dog owner to claim the defense of contributory negligence; plaintiffs cannot win if they contributed in any way to a dog bite.

Maryland is unique in that the state law governs the specific licensing and other regulations certain counties may adopt or enforce. And many of the local counties have, in fact, determined certain dogs as “dangerous.”

What can your association do? It can adopt a rule that all dogs must be leashed when outside of the homeowner’s property and require that owners register dogs with the association and show proof that the dog has been properly vaccinated.

Moreover, the rule should state that if anyone is bitten by a dog, regardless of whether it is on a leash, the owner will be subject to a hearing and a possible fine.

Also, if any more incidents occur, unless the owner agrees to muzzle it when outside, the dog can be permanently removed from the area. In some cases, legal action may be necessary.

And most importantly, the board should confirm that the association has the necessary insurance coverage. People sleep better knowing there is insurance.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel.