Transcript Liability For Rescue Organizations and How To Avoid It

Liability For Rescue Organizations
and
How To Avoid It
Or
If It’s Your Group’s Fault,
How to Cover Your Asstapadistras
WORDS EVERY RESCUE GROUP
SHOULD KNOW
ADOPTION ORGANIZATION
NEGLIGENCE
NEGLIGENCE PER SE
LIABILITY
VISCIOUS PROPENSITIES
TRANSFEROR
BREACH OF DUTY
ADOPTION ORGANIZATION
“The law does not base liability on whether
the owner or custodian is a person, a forprofit corporation, a non-profit corporation,
or a group of like-minded people.”
Kenneth Phillips. Attorney-at-Law
“Avoiding Liability When You Train,
Shelter, or Adopt Out”
For our purposes, adoption organization will mean
“breed rescue organization.”
NEGLIGENCE
“The failure to use such care as a reasonably prudent
and careful person would use under similar
circumstances; it is the doing of some act which a
person of ordinary prudence would not have done under
similar circumstances or failure to do what a person of
ordinary prudence would have done under similar
circumstances.”
Black’s Law Dictionary
Sixth Edition
NEGLIGENCE
Doing or not doing what somebody with
half a brain would do or not do in the same
situation.
“Definitions for The Great Unwashed”
NEGLIGENCE PER SE
“A form of ordinary negligence that results from violation
of a statute. Conduct, whether of action or omission,
which may be declared and treated as negligence
without any argument or proof as the particular
surrounding circumstances, either because it is in
violation of a specific statute or ordinance, or because it
is so palpably opposed to the dictates of common
prudence that it can be said without hesitation or doubt
that no careful person would have been guilty of it.”
NEGLIGENCE PER SE
Doing something stupid like walking your
dog without a leash in violation of the city’s
leash law, and it bites a little old lady in the
park.
“Definitions for the Great Unwashed”
LIABILITY
An obligation one is bound to perform…
condition of being responsible for possible
or actual loss, penalty, evil, expense or
burden…the state of one who is bound in
law and justice to do something which may
be enforced by action.”
Black’s Law Dictionary
Sixth Edition
LIABILITY
“An obligation one is bound in law or
justice to perform; condition of being
responsible for a possible or actual loss,
penalty, evil, expense, or burden.”
LIABILITY
If you don’t do what the law says, it’s your
fault and you will be responsible for
whatever happens.
(It has nothing to do with things like “He’s liable to break his fool
neck jumping out of that old swing.”)
Definitions for the Great Unwashed
VICIOUS PROPENSITIES
“The tendency of an animal to do any act that might
endanger the safety of the persons and property of
others in a given situation. Although an animal is
actuated solely by mischievousness or playfulness,
rather than maliciousness or ferociousness, yet if it has a
tendency to do a dangerous or harmful act, it has a
vicious propensity within the meaning of the rule holding
the owner or keeper liable for injuries resulting from
vicious propensities of which he has knowledge.”
Alabama Tort Law
Second Edition
VICIOUS 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…”
TRANSFEROR
The seller, adoption agency, shelter,
rescue organization, or dog owner who
places a dog with a new owner.
Transferors have certain legal obligations
which, if not met, can result in civil liability.
BREACH OF DUTY
Any violation or omission of a legal or
moral obligation.
Failure to disclose information about the
propensities of a dog is a breach of duty to
the new owner and sets up the transferor
for liability for any injury which may occur.
BREACH OF DUTY
Don’t withhold information or lie about any
propensities a dog may have, whether
from mischievousness or viciousness.
“As sure as the Lord sits on his throne in
heaven, your sins will find you out.”
Annie McCullough
1969
IS THIS REALLY ALL THAT SERIOUS ?
There can be criminal consequences if a dangerous dog
seriously injures or kills someone in its new home.
There have been at least two criminal prosecutions of
adoption agencies and their volunteers.
In one case, an adoption agency placed a dangerous
dog with an elderly woman, and 10 days later, it killed
her, resulting in a criminal prosecution for homicide.
Kenneth Phillips, Esq.
Dog Bite Law : Adoption Organization Liability for Dog Bites
NOW THAT WE KNOW WHAT IT IS, HOW
DO WE AVOID IT ?
INVESTIGATE as fully as possible.
Ask yourself what the expectations of the potential new
owner are.
Is the new owner looking for a dangerous dog ?
Doubtful !!
Ask yourself if the average potential owner has the
training and experience to recognize a dangerous dog
and rehabilitate one.
These factors create a duty on the part of the rescue
group to realistically determine if a dog is safe for the
community at large.
SCOPE OF THE INVESTIGATION
The investigation should be reasonably designed to
accomplish the purpose of insuring safety.
Former owners (if available) should be required to
provide as much information as possible about the
parents, socialization, disposition and health of the dog.
Has the dog ever injured anyone ? Is the postman
afraid to deliver mail ?
Keep a record of any incidents where a dog snaps,
lunges at, was intolerant of, or showed any
aggressiveness toward any person.
Make the hard decision.
MISREPRESENTATION
Never misrepresent the safety or
suitability of a dog.
Never lie about its being a purebred if
you’re not absolutely sure. Some rescue
organizations such as B.O.N.E. (Beardies
And Others In Need of Emissaries) is a
group which finds home for “Neardies,” or
dogs which are Beardie mixes.
RETENTION OF OWNERSHIP
Never retain ownership of a dog after placing it in a new
home. This will set up the rescue group for the same
liability the owner will have, from possible animal cruelty
violations to civil liability if the dog bites someone.
Have an attorney set up some kind of receipt or contract
which states that you are the bailee or temporary
caretaker, and not the owner.
When taking a dog from an owner, have that person fill
out a form that inquires about the dogs behavior, quirks,
habits, possible dangerous behavior.
INCORPORATE AS A 501©(3)
Donors can write off contributions.
Individuals may avoid personal liability in
the event of a lawsuit unless the suit
alleges wrongdoing by the board itself.
DOCUMENT. DOCUMENT, DOCUMENT
Foster homes should document with
certainty and regularity the behavior of a
dog in their care. Carefully record every
action of the dog which might be
construed as a “vicious propensity.” And
remember that it isn’t all about biting.
CONTRACT YOUR WAY OUT
OF LIABILITY
Require that a dog be neutered or spayed
before being placed.
Explain in specific terms what is suitable
behavior for the breed.
Disclose any propensities the breed may
have, and those of the specific dog.
Contracts may be individualized.
Put in everything but the kitchen sink.
WHAT’S IN THE KITCHEN SINK ?
Does the dog get along with children ?
Has he been exposed to very young children and infants ?
Does he dig ?
Climb fences ?
Chew the furniture ?
Is he housebroken ?
Does he get along with cats ?
Does he get along with other dogs ?
Does he bark unnecessarily ?
Does he have health issues ?
Is he on medication ?
Is he heartworm negative ?
This is a short list. Include everything which might reduce
your group’s liability in your in your adoption contract.
THE BOTTOM LINE
Learn all you can about liability and how to
avoid it.
Never cut corners when placing a rescue.
Be honest and disclose fully.
Unfortunately, we can’t save them all.
Don’t place any dog you know might injure
someone.
Have your organization purchase liability
insurance to cover its volunteers.
Become familiar with your state and local laws.
Have detailed, exact adoption contracts.
SPECIAL THANKS
Special thanks to the following people for
their generosity in sharing their research
with me:
Kenneth Miller, Esq.
Zandra Anderson, Esq.