dissenting.
I respectfully dissent from part II of the panel majority’s opinion. To be sure, the incident of April 28, 2007, was horrific. In my judgment, however, the circuit court correctly concluded that the evidence presented at trial by the plaintiffs was legally insufficient to sustain a verdict against the landlord. As a consequence, the circuit court properly granted the landlord’s motion for judgment under Maryland Rule 2-519 at the close of the plaintiffs’ case. See Veytsman v. New York Palace, Inc., 170 Md.App. 104, 112, 906 A.2d 1028 (2006).
The majority begins its opinion by stating that Maryland is very forgiving in allowing even slight circumstantial evidence of negligence to go to the jury. This is true as far as it goes, but not all evidence is legally sufficient evidence of negligence. See Fowler v. Smith, 240 Md. 240, 246-47, 213 A.2d 549 (1965). This case, I am confident, would be decided quite differently if the dogs in question were of another breed. And no case should be decided, as the majority’s opinion surely implies, simply by saying that “in a close case” the jury must decide. As we held in Robin Express Transfer, Inc. v. Canton R.R. Co., 26 Md.App. 321, 328, 338 A.2d 335 (1975), such an approach “betrays a fundamental misconception of the respective functions of court and jury where the sufficiency of circumstantial evidence is involved.” We continued:
It is the function of the court, in the first instance, to decide whether the inference of negligence is legitimate or permis*332sible. If the decision is “no” the evidence should be withheld from the jury. Contrariwise, if the decision is “yes,” the evidence should be submitted to the jury for its evaluation of the force of the inference of negligence.
26 Md.App. at 328, 338 A.2d 335.
This important role of the court as a gatekeeper in tort cases is recognized by the leading treatise on the subject.
But over such questions of fact the courts always have reserved a preliminary power of decision, as to whether the issue shall be submitted to the jury at all. If the evidence is such that no reasonably intelligent person would accept it, it becomes the duty of the court to remove the issue from the jury, and to nonsuit the plaintiff, or to direct a verdict for the defendant, or to set aside a verdict once rendered.
W. Keeton, Prosser and Keeton on Torts § 37 at 236 (5th ed. 1984)(footnote omitted).
Nor is it sufficient to suggest that a verdict may rest entirely on circumstantial evidence. See Robinson v. State, 348 Md. 104, 112, 702 A.2d 741 (1997). Although it may, the court still must determine whether the legitimate inferences that can be drawn from circumstantial evidence are legally sufficient to support a plaintiffs verdict. C & P. Tel. Co. of Maryland v. Hicks, 25 Md.App. 503, 524, 337 A.2d 744 (1975). “Inferences must be based on reasonable probability, rather than speculation, surmise, or conjecture.” Ward v. Hartley, 168 Md.App. 209, 218, 895 A.2d 1111 (2006). In my view, the evidence presented by the plaintiffs at the trial of this case was insufficient as a matter of law and would, under the views expressed in the majority’s opinion, permit a verdict to stand based on the fact that the dogs in question were of the pit bull terrier breed.
The majority concedes that the plaintiffs failed to present any direct evidence at trial of any prior misconduct by these particular dogs. For example, there was no evidence of prior biting, attacking, running loose or escaping from confinement. Nor was there any direct evidence that the landlord — or anyone else for that matter — was aware of any actual vicious *333propensities or bad acts of these particular animals. The majority, nevertheless, holds that the following circumstantial evidence was legally sufficient for the jury to find for the plaintiffs: (1) the lease contained a provision allowing the tenant to keep two pit bull terriers on the demised premises; (2) the landlord knew that the tenant kept two of these dogs in a pen in the backyard; (3) language in the lease required the tenant to pay for any damage or harm caused by the dogs; and (4) two neighbors testified that the dogs jumped and barked when other persons or animals passed by their pen and that they avoided the area in which the dogs were kept. I disagree that this was legally sufficient circumstantial evidence to allow a rational jury to return a verdict for the plaintiffs. See Veytsman v. New York Palace, Inc., 170 Md. App. at 118-19, 906 A.2d 1028 (plaintiffs evidence of prior similar incidents legally insufficient to hold restaurant owner liable in tort for assault committed on the premises).
In Maryland, the keeper of a domestic animal may be held liable in tort under theories of negligence, strict liability or both. Pahanish v. W. Trails, Inc., 69 Md.App. 342, 356, 517 A.2d 1122 (1986); Slack v. Villari, 59 Md.App. 462, 470, 476 A.2d 227, cert. denied, 301 Md. 177, 482 A.2d 502 (1984). But a landlord may be held liable to a third-party for the actions of a tenant who keeps a dog only if the landlord knew, or under the circumstances should have known, of the dangerous or vicious propensities of the particular dog. Matthews v. Amberwood, 351 Md. 544, 570, 719 A.2d 119 (1998). The majority’s opinion eviscerates this long-settled requirement. Twigg v. Ryland, 62 Md. 380, 385-86 (1884). As Judge Salmon reiterated for this Court in Ward v. Hartley, 168 Md.App. at 220 & n. 7, 895 A.2d 1111, the fact that the dog in question is a pit bull does not place the landlord on notice that a particular dog is or likely will be vicious. See Moura v. Randall, 119 Md.App. 632, 653, 705 A.2d 334 (1998) (“To be sure, the fact that Diesel was a Rottweiler is not sufficient to establish that he is vicious.”); Slack v. Villari, 59 Md.App. at 476, 476 A.2d 227 (“[T]he mere fact that the dog that injures a plaintiff belongs to a breed with an unsavory reputation, absent evi*334dence that the particular dog was of a violent nature, is insufficient to prove scienter.”) See also Herbert v. Ziegler, 216 Md. 212, 216-17, 139 A.2d 699 (1958) (discussing legal sufficiency of the evidence of the owner’s knowledge that a particular dog in question “was mischievous”).
Although the majority rightly acknowledges these legal points, it nonetheless proceeds to say that the jury can, without the aid of expert testimony, consider the breed of the dog. This is completely unwarranted. The majority then goes on to recite what it views as legally sufficient circumstantial evidence of the landlord’s knowledge of actual or potential dangerousness of these particular dogs. I disagree. None of the items of evidence pointed to by the majority, singly or even in combination, are legally sufficient to submit this case to a jury.
The fact that the dogs were kept in an enclosure is not evidence or notice of any vicious propensities of these particular animals. McDonald v. Burgess, 254 Md. 452, 458, 255 A.2d 299 (1969). Moreover, the fact that the dogs in this case barked or jumped when persons or other dogs walked by or near their enclosure likewise is not evidence of viciousness or notice of potential danger to third parties. Hiner v. Mojica, 271 Mich.App. 604, 722 N.W.2d 914, 919-20 (2006) (collecting cases). Barking and jumping is what dogs of every breed, including pit bulls, do. See Plowman v. Pratt, 268 Neb. 466, 684 N.W.2d 28 (2004) (“Normal canine behavior, such as a dog barking at a stranger, is not sufficient to infer that a landlord has actual knowledge of a dog’s dangerous propensities.”) See also Batra v. Clark, 110 S.W.3d 126, 130 (Tex.App.2003) (rendering judgment for the defendant when there was no evidence that the landlord “knew that it was a potentially vicious animal or identified the dog’s bark as the bark of a potentially vicious animal.”)
Further, the fact that two neighbors were subjectively afraid of pit bull terriers likewise is not sufficient to impute knowledge of potential dangerousness to the landlord. It is not “reasonable to attribute vicious propensities to a dog *335merely because he barks at strangers, because a person is afraid of a dog, or because a city ordinance requires a dog to be restrained at all times.” Royer v. Pryor, 427 N.E.2d 1112, 1117 (Ind.App.1981) (emphasis added). The facts of this case, even taken in the light most favorable to the plaintiffs, are not even remotely similar to those held to be sufficient by the Court of Appeals to impute knowledge. See Shields v. Wagman, 350 Md. 666, 687-90, 714 A.2d 881 (1998) (holding that landlord’s knowledge could be imputed where another tenant informed the landlord’s agent of the dog’s viciousness prior to the attack). In this case, there was no evidence presented to show that the landlord or her daughter knew that the dogs could escape from the pen. Specifically, the evidence did not show that the landlord or her daughter knew that the pen was inadequate to contain the dogs, or that either had witnessed the dogs attempting to escape from the pen. Therefore, the evidence in this case does not support a reasonable inference that this landlord had any knowledge, actual or constructive, of any vicious tendencies or ability to escape from confinement on the part of these particular dogs.
Finally, the fact that the landlord required its tenant to bear the responsibility for any harm or damage done by their pets is meaningless. Nearly every commercial and residential lease in effect in Maryland today requires the tenant to bear responsibility for any harm, done by the activities conducted by the tenant on the demised premises, or to carry insurance to cover any losses arising out of those activities. Hence, the presence of such a lease clause in this case is without particular moment.
Respectfully, the burden on a tort plaintiff in Maryland to show the mischievous propensities of a particular dog is not very high. The plaintiffs in this case could have, but did not, present testimony regarding any threatening or dangerous conduct of the specific dogs in question, whether it be prior to or post the incident in question. See Moura, v. Randall, 119 Md.App. at 643-44, 705 A.2d 334 (allowing testimony about post-attack conduct of the dog to support inference that dog had vicious tendencies). See also Moore v. Myers, 161 Md. *336App. 349, 363-65, 868 A.2d 954 (2005) (unleashed and unconfined pit bull that escaped from owner’s property); Hammond v. Robins, 60 Md.App. 430, 434-36, 483 A.2d 379 (1984) (homeowner permitted a dog to leave an enclosed yard knowing of dog’s propensity to cross the street when unrestrained). The plaintiffs also could have presented, but did not, expert testimony based on sound science under Maryland Rule 5-702 about these specific dogs, or possibly even the breed in general.
Curiously, at oral argument, counsel for the plaintiff were unable to explain why they did not call to testify at trial either the police officers who responded to the scene, or the animal control officers who took control of and, ultimately, euthanized the dog which attacked the child in this case. Nor did plaintiffs’ counsel explain why they did not present expert testimony at trial regarding the behavior of the animals in question.
The General Assembly likely can regulate, or even ban, pit bulls in the State of Maryland. A municipal corporation likely can regulate the keeping of pit bulls within their corporate limits. Compare City of Toledo v. Tellings, 114 Ohio St.3d 278, 871 N.E.2d 1152, 1156-59 (2007) (upholding ban) and Holt v. City of Maumelle, 307 Ark. 115, 817 S.W.2d 208, 209-10 (1991) (same) with Dias v. City of Denver, 567 F.3d 1169, 1183-84 (10th Cir.2009) (reversing trial court’s dismissal of plaintiffs’ claim that municipal pit bull ban violated substantive due process). But a court of error review has no such authority to do so under the guise of tort law. Nor may it judicially notice as a “fact” that all pit bull terriers are dangerous. These, however, essentially are the consequences of the majority’s decision under the evidence presented at trial in this case. I would affirm the judgment of the circuit court which granted a directed verdict against the plaintiffs.