Both Maryland and Virginia have codified their positions relating to personal injury caused by a dog (or sometimes another animal). The respective relevant statutes permit municipalities within each state to enact regulations governing their specific locality. Often called “leash laws,” the statutes, and their corresponding regulations, place strict liability upon a dog owner when the dog is “running at large” and causes injury to another person or to property. The phrase “running at large” seems to imply that a dog is roaming about, without a leash, away from its owner’s property when the injury occurs. Historically, this interpretation is accurate—and remains so in Virginia—however, new case law changes that interpretation in Maryland.

Maryland’s relevant statute is Md. Code Ann., Cts. & Jud. Proc. § 3-1901(c), which states, in pertinent part:

(c) The owner of a dog is liable for any injury, death, or loss to person or property that is caused by the dog, while the dog is running at large, unless the injury, death, or loss was caused to the body or property of a person who was:

(1) Committing or attempting to commit a trespass or other criminal offense on the property of the owner;

(2) Committing or attempting to commit a criminal offense against any person; or

(3) Teasing, tormenting, abusing, or provoking the dog.

The recent case, Blitzer, et al. v. Breski, Published September 27, 2023, No. 875, Term 2022 (2023 Md. App. LEXIS 648 *1), originated in the Circuit Court for Baltimore County where that court entered a directed verdict against the dog owners, Blitzer and co-defendant Colin (Blitzer’s roommate), under §3-1901(c) after the dog attacked Breski while she was standing on common property shared by the parties. The subject property consisted of the back yards of both property owners, as well as an alleyway and concrete pad situated between and behind the parties’ adjacent properties, and to which the parties had equal access and use.

The trial court observed that the Maryland legislature did not define the phrase “running at large” within the statute itself, so the court looked to a similar criminal statute and determined that the dog was, in fact, running at large at the time the bite occurred. Dog-owners Blitzer and Colin appealed the directed verdict in favor of Breski, arguing that the dog had not ventured off its owners’ property (due to the shared nature of the property) and was, therefore, not “at large.”

In interpreting §3-1901(c), the sole question before the Appellate Court was how to define “running at large.” If the dog was running at large, then the owners would be held strictly liable under §3-1901(c); however, if the evidence showed that the dog was contained on its own property, then the trial court erred in directing a verdict in Breski’s favor. Having no definition provided by the legislature, the Court was left to determine the meaning of the phrase. In doing so, it considered dictionary definitions of the terms, concluding that “running at large” is an “idiom meaning free, unrestrained, or not under control.” Blitzer, at 20.

The Court then turned its attention to examining the legislative intent of the statute, and, in the absence of any comments provided in the legislative history, looked to the exceptions listed within sub-section (c), concluding that a dog could be “running at large” even while on its own property. Blitzer, at 22. The Court reasoned, “…by including [the trespass] exception, the legislature signaled that a dog could be ‘running at large’ even while on its owner’s property.” Id. Breski was lawfully on the property and did not fall under any exception.

The Court observed that nothing in the statute required an analysis of property ownership when determining the dog owner’s liability. So long as the victim is lawfully on the property—any property, whether shared ownership or exclusively held by the dog’s owner—if the dog is running free, unrestrained, or not under control, the dog owner will be held liable for injury caused by the dog. The court saw “nothing in the statute to suggest that the legislature intended to insulate a dog owner from liability under such circumstances.” Blitzer, at 27.

Conversely, Virginia Code § 3.2-6538 (2022), which grants authority to municipalities to enact local laws on this issue, protects a dog owner from liability if the dog is running at large on the owner’s property. It defines the term within the statute itself: “For the purpose of this section, a dog shall be deemed to run at large while roaming or running off the property of its owner or custodian and not under its owner's or custodian's immediate control” (emphasis added). Virginia seemingly broadens the so-called leash law to remove liability even when the dog is roaming or running off the property but is still under the immediate control of its owner. Notably, hunting dogs are specifically excluded while “roaming or running off the property” during hunting season.

Although Virginia case law is not as current on this subject, as in Maryland, it is consistent with Code §3.2-6538. For example, Henrico County held that a dog is not necessarily “running at large” simply by being off-leash on its own property. In Henrico County v. Cherry, 11 Va. Cir. 318, 320 (1967), the defendant dog owner (Cherry) was charged under the then-statute when his dog, running freely on Cherry’s property, ran off-property and attacked Cherry’s neighbor who was walking alongside the property.

Henrico County determined it had no authority to say “that a dog is running at large when it is on its owner's property and free from physical restraint.” It limited this freedom slightly by stating that evidence that the dog was routinely or occasionally attracted off of the property by passers-by, or that it simply wandered off, would be sufficient to conclude that a dog was at large even though on its owner's property.” Id. at 320. In cases involving civil actions arising from animals being at large, these statutes “are not violated in the absence of …negligence by the owner” in permitting them to run at large, or at a minimum knowing they are running at large and failing to restrain them. Id. at 318.

Henrico County further stated that liability could attach if the dog owner knew the dog was running at large and failed to restrain it: “…the essential ingredient of the offense is the fact that the owner of the animals knowingly allows them to run at large . . . and the mere fact that they are at large is not sufficient to constitute the offense.” Id. at 320. Where the Court found no evidence that the dog owner allowed his dogs to run at large, liability was not held against him.

Clearly, Virginia dog owners have more leeway in letting their pets run freely, whether at the local dog park or in their own back yard, and liability for injury to others attaches only when the owner’s negligence (interpreted as failure to restrain or control the dog) is present. In Maryland, dog owners should now be aware and in control of their dog even in their own back yards when other people are present.

If you have any questions about this article, please contact Denise Reverski (dreverski@setlifflaw.com) at 804-377-1272 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.