Liability For Rescue OrganizationsLiability For Rescue Organizationsandand

How To Avoid ItHow To Avoid It

OrOrIf It’s Your Group’s Fault,If It’s Your Group’s Fault,

How to Cover Your AsstapadistrasHow to Cover Your Asstapadistras

WORDS EVERY RESCUE WORDS EVERY RESCUE GROUP SHOULD KNOWGROUP SHOULD KNOW

ADOPTION ORGANIZATIONADOPTION ORGANIZATION

NEGLIGENCENEGLIGENCE

NEGLIGENCE NEGLIGENCE PER SEPER SE

LIABILITYLIABILITY

VISCIOUS PROPENSITIESVISCIOUS PROPENSITIES

TRANSFERORTRANSFEROR

BREACH OF DUTYBREACH OF DUTY

ADOPTION ORGANIZATIONADOPTION ORGANIZATION

““The law does not base liability on whether The law does not base liability on whether the owner or custodian is a person, a for-the owner or custodian is a person, a for-profit corporation, a non-profit corporation, profit corporation, a non-profit corporation, or a group of like-minded people.”or a group of like-minded people.”

Kenneth Phillips. Attorney-at-LawKenneth Phillips. Attorney-at-Law

““Avoiding Liability When You Train, Avoiding Liability When You Train, Shelter, or Adopt Out”Shelter, or Adopt Out”

For our purposes, adoption organization will mean For our purposes, adoption organization will mean “breed rescue organization.”“breed rescue organization.”

NEGLIGENCENEGLIGENCE

““The failure to use such care as a reasonably prudent The failure to use such care as a reasonably prudent and careful person would use under similar and careful person would use under similar circumstances; it is the doing of some act which a circumstances; it is the doing of some act which a person of ordinary prudence would not have done under person of ordinary prudence would not have done under similar circumstances or failure to do what a person of similar circumstances or failure to do what a person of ordinary prudence would have done under similar ordinary prudence would have done under similar circumstances.”circumstances.”

Black’s Law DictionaryBlack’s Law Dictionary

Sixth EditionSixth Edition

NEGLIGENCENEGLIGENCE

Doing or not doing what somebody with Doing or not doing what somebody with half a brain would do or not do in the same half a brain would do or not do in the same situation.situation.

““Definitions for The Great Definitions for The Great Unwashed”Unwashed”

NEGLIGENCE NEGLIGENCE PER SEPER SE

““A form of ordinary negligence that results from violation A form of ordinary negligence that results from violation of a statute. Conduct, whether of action or omission, of a statute. Conduct, whether of action or omission, which may be declared and treated as negligence which may be declared and treated as negligence without any argument or proof as the particular without any argument or proof as the particular surrounding circumstances, either because it is in surrounding circumstances, either because it is in violation of a specific statute or ordinance, or because it violation of a specific statute or ordinance, or because it is so palpably opposed to the dictates of common is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.”that no careful person would have been guilty of it.”

NEGLIGENCE NEGLIGENCE PER SEPER SE

Doing something stupid like walking your Doing something stupid like walking your dog without a leash in violation of the city’s dog without a leash in violation of the city’s leash law, and it bites a little old lady in the leash law, and it bites a little old lady in the park.park.

““Definitions for the Great Definitions for the Great Unwashed”Unwashed”

LIABILITYLIABILITY

An obligation one is bound to perform… An obligation one is bound to perform… condition of being responsible for possible condition of being responsible for possible or actual loss, penalty, evil, expense or or actual loss, penalty, evil, expense or burden…the state of one who is bound in burden…the state of one who is bound in law and justice to do something which may law and justice to do something which may be enforced by action.”be enforced by action.”

Black’s Law DictionaryBlack’s Law Dictionary

Sixth EditionSixth Edition

LIABILITYLIABILITY

““An obligation one is bound in law or An obligation one is bound in law or justice to perform; condition of being justice to perform; condition of being responsible for a possible or actual loss, responsible for a possible or actual loss, penalty, evil, expense, or burden.”penalty, evil, expense, or burden.”

LIABILITYLIABILITY

If you don’t do what the law says, it’s your If you don’t do what the law says, it’s your fault and you will be responsible for fault and you will be responsible for whatever happens.whatever happens.(It has nothing to do with things like “He’s liable to break his fool (It has nothing to do with things like “He’s liable to break his fool neck jumping out of that old swing.”)neck jumping out of that old swing.”)

Definitions for the Great UnwashedDefinitions for the Great Unwashed

VICIOUS PROPENSITIESVICIOUS PROPENSITIES

““The tendency of an animal to do any act that might The tendency of an animal to do any act that might endanger the safety of the persons and property of endanger the safety of the persons and property of others in a given situation. Although an animal is others in a given situation. Although an animal is actuated solely by mischievousness or playfulness, actuated solely by mischievousness or playfulness, rather than maliciousness or ferociousness, yet if it has a rather than maliciousness or ferociousness, yet if it has a tendency to do a dangerous or harmful act, it has a tendency to do a dangerous or harmful act, it has a vicious propensity within the meaning of the rule holding vicious propensity within the meaning of the rule holding the owner or keeper liable for injuries resulting from the owner or keeper liable for injuries resulting from vicious propensities of which he has knowledge.”vicious propensities of which he has knowledge.”

Alabama Tort LawAlabama Tort Law

Second EditionSecond Edition

VICIOUS PROPENSITIESVICIOUS PROPENSITIES

The general rule is stated at 4 Am. Jur. 2nd Animals § 86

(1962) at 332:The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and insofar as such propensities are of a nature likely to cause injury, he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them…”

TRANSFERORTRANSFEROR

The seller, adoption agency, shelter, The seller, adoption agency, shelter, rescue organization, or dog owner who rescue organization, or dog owner who places a dog with a new owner.places a dog with a new owner.

Transferors have certain legal obligations Transferors have certain legal obligations which, if not met, can result in civil liability.which, if not met, can result in civil liability.

BREACH OF DUTYBREACH OF DUTY

Any violation or omission of a legal or Any violation or omission of a legal or moral obligation.moral obligation.

Failure to disclose information about the Failure to disclose information about the propensities of a dog is a breach of duty to propensities of a dog is a breach of duty to the new owner and sets up the transferor the new owner and sets up the transferor for liability for any injury which may occur.for liability for any injury which may occur.

BREACH OF DUTYBREACH OF DUTY

Don’t withhold information or lie about any Don’t withhold information or lie about any propensities a dog may have, whether propensities a dog may have, whether from mischievousness or viciousness.from mischievousness or viciousness.

““As sure as the Lord sits on his throne in As sure as the Lord sits on his throne in heaven, your sins will find you out.”heaven, your sins will find you out.”

Annie McCulloughAnnie McCullough

19691969

IS THIS REALLY ALL THAT SERIOUS ?IS THIS REALLY ALL THAT SERIOUS ?

There can be criminal consequences if a dangerous dog There can be criminal consequences if a dangerous dog seriously injures or kills someone in its new home. seriously injures or kills someone in its new home. There have been at least two criminal prosecutions of There have been at least two criminal prosecutions of adoption agencies and their volunteers.adoption agencies and their volunteers.

In one case, an adoption agency placed a dangerous In one case, an adoption agency placed a dangerous dog with an elderly woman, and 10 days later, it killed dog with an elderly woman, and 10 days later, it killed her, resulting in a criminal prosecution for homicide.her, resulting in a criminal prosecution for homicide.

Kenneth PhillipsKenneth Phillips, , Esq.Esq.

Dog Bite Law : Adoption Organization Liability for Dog Dog Bite Law : Adoption Organization Liability for Dog BitesBites

NOW THAT WE KNOW WHAT IT IS, HOW NOW THAT WE KNOW WHAT IT IS, HOW DO WE AVOID IT ?DO WE AVOID IT ?

INVESTIGATEINVESTIGATE as fully as possible. as fully as possible.

Ask yourself what the expectations of the potential new Ask yourself what the expectations of the potential new owner are.owner are.

Is the new owner looking for a dangerous dog ? Is the new owner looking for a dangerous dog ? Doubtful !!Doubtful !!

Ask yourself if the average potential owner has the Ask yourself if the average potential owner has the training and experience to recognize a dangerous dog training and experience to recognize a dangerous dog and rehabilitate one.and rehabilitate one.

These factors create a duty on the part of the rescue These factors create a duty on the part of the rescue group to realistically determine if a dog is safe for the group to realistically determine if a dog is safe for the community at large.community at large.

SCOPE OF THE INVESTIGATIONSCOPE OF THE INVESTIGATION

The investigation should be reasonably designed to The investigation should be reasonably designed to accomplish the purpose of insuring safety.accomplish the purpose of insuring safety.

Former owners (if available) should be required to Former owners (if available) should be required to provide as much information as possible about the provide as much information as possible about the parents, socialization, disposition and health of the dog.parents, socialization, disposition and health of the dog.

Has the dog ever injured anyone ? Is the postman Has the dog ever injured anyone ? Is the postman afraid to deliver mail ?afraid to deliver mail ?

Keep a record of any incidents where a dog snaps, Keep a record of any incidents where a dog snaps, lunges at, was intolerant of, or showed any lunges at, was intolerant of, or showed any aggressiveness toward any person.aggressiveness toward any person.

Make the hard decision.Make the hard decision.

MISREPRESENTATIONMISREPRESENTATION

Never misrepresent the safety or Never misrepresent the safety or suitability of a dog.suitability of a dog.

Never lie about its being a purebred if Never lie about its being a purebred if you’re not absolutely sure. Some rescue you’re not absolutely sure. Some rescue organizations such as B.O.N.E. (Beardies organizations such as B.O.N.E. (Beardies And Others In Need of Emissaries) is a And Others In Need of Emissaries) is a group which finds home for “Neardies,” or group which finds home for “Neardies,” or dogs which are Beardie mixes.dogs which are Beardie mixes.

RETENTION OF OWNERSHIPRETENTION OF OWNERSHIP

Never retain ownership of a dog after placing it in a new Never retain ownership of a dog after placing it in a new home. This will set up the rescue group for the same home. This will set up the rescue group for the same liability the owner will have, from possible animal cruelty liability the owner will have, from possible animal cruelty violations to civil liability if the dog bites someone. violations to civil liability if the dog bites someone.

Have an attorney set up some kind of receipt or contract Have an attorney set up some kind of receipt or contract which states that you are the bailee or temporary which states that you are the bailee or temporary caretaker, and not the owner.caretaker, and not the owner.

When taking a dog from an owner, have that person fill When taking a dog from an owner, have that person fill out a form that inquires about the dogs behavior, quirks, out a form that inquires about the dogs behavior, quirks, habits, possible dangerous behavior.habits, possible dangerous behavior.

INCORPORATE AS A 501©(3)INCORPORATE AS A 501©(3)

Donors can write off contributions.Donors can write off contributions.

Individuals may avoid personal liability in Individuals may avoid personal liability in the event of a lawsuit unless the suit the event of a lawsuit unless the suit alleges wrongdoing by the board itself.alleges wrongdoing by the board itself.

DOCUMENT. DOCUMENT, DOCUMENTDOCUMENT. DOCUMENT, DOCUMENT

Foster homes should document with Foster homes should document with certainty and regularity the behavior of a certainty and regularity the behavior of a dog in their care. Carefully record every dog in their care. Carefully record every action of the dog which might be action of the dog which might be construed as a “vicious propensity.” And construed as a “vicious propensity.” And remember that it isn’t all about biting.remember that it isn’t all about biting.

CONTRACT YOUR WAY OUT CONTRACT YOUR WAY OUT OF LIABILITYOF LIABILITY

Require that a dog be neutered or spayed Require that a dog be neutered or spayed before being placed.before being placed.

Explain in specific terms what is suitable Explain in specific terms what is suitable behavior for the breed.behavior for the breed.

Disclose any propensities the breed may Disclose any propensities the breed may have, and those of the specific dog.have, and those of the specific dog.

Contracts may be individualized.Contracts may be individualized.

Put in everything but the kitchen sink.Put in everything but the kitchen sink.

WHAT’S IN THE KITCHEN SINK ?WHAT’S IN THE KITCHEN SINK ?

Does the dog get along with children ?Does the dog get along with children ? Has he been exposed to very young children and infants ?Has he been exposed to very young children and infants ? Does he dig ?Does he dig ? Climb fences ?Climb fences ? Chew the furniture ?Chew the furniture ? Is he housebroken ?Is he housebroken ? Does he get along with cats ?Does he get along with cats ? Does he get along with other dogs ?Does he get along with other dogs ? Does he bark unnecessarily ?Does he bark unnecessarily ? Does he have health issues ?Does he have health issues ? Is he on medication ?Is he on medication ? Is he heartworm negative ?Is he heartworm negative ?

This is a short list. Include everything which might reduce This is a short list. Include everything which might reduce your group’s liability in your in your adoption contract.your group’s liability in your in your adoption contract.

THE BOTTOM LINETHE BOTTOM LINE

Learn all you can about liability and how to Learn all you can about liability and how to avoid it.avoid it. Never cut corners when placing a rescue.Never cut corners when placing a rescue. Be honest and disclose fully.Be honest and disclose fully. Unfortunately, we can’t save them all. Unfortunately, we can’t save them all. Don’t place any dog you know might injure Don’t place any dog you know might injure someone.someone. Have your organization purchase liability Have your organization purchase liability insurance to cover its volunteers.insurance to cover its volunteers. Become familiar with your state and local laws.Become familiar with your state and local laws. Have detailed, exact adoption contracts.Have detailed, exact adoption contracts.

SPECIAL THANKSSPECIAL THANKS

Special thanks to the following people for Special thanks to the following people for their generosity in sharing their research their generosity in sharing their research with me:with me:

Kenneth Miller, Esq.Kenneth Miller, Esq.

Zandra Anderson, Esq.Zandra Anderson, Esq.