Dog Bite Law

The legal duties of a transferor

Sellers, rescue organizations, adoption agencies, shelters and dog owners (collectively referred to as "transferors") have certain legal obligations when they place a dog with a new owner. A breach of any of those obligations can result in civil liability or even criminal charges.

Civil liability will result from adopting out a dog that is known to be dangerous, is known to have dangerous propensities, or is misrepresented as being safe when the transferor has no reasonable basis to make that representation. A dog known to be dangerous or vicious must be put down or cured of its potentially injurious tendency. (For definitions and a discussion of the concepts of dangerousness and viciousness, see Dangerous and Vicious Dogs.)

The need to euthanize an animal is one of the foreseeable burdens of animal ownership. Even the jurisdictions that have a "no kill" policy acknowledge that some animals must be put down. For example, the State of California has decreed that "[i]t is the policy of the state that no adoptable animal should be euthanized if it can be adopted into a suitable home." Cal. Civil Code sec. 1834.4. The state has also determined that "[i]t is the policy of the state that no treatable animal should be euthanized." (Ibid.) Despite these policies, however, section 1834.4 permits euthanizing an animal unless it has "no sign of a behavioral or temperamental defect that could pose a health or safety risk or otherwise make the animal unsuitable for placement as a pet...." There are other exceptions as well.

It should be noted that when mention is made of putting down a dog because of its dangerousness, we are referring to a particular dog that has manifested dangerous or vicious behavior. There is no law in the USA, either enacted or proposed, which would require the gathering up and methodical killing of dogs because of their breed. (For more about breed specific legislation, see Breed Specific Laws.)

A transferor may also be liable for breach of a promise, representation or warranty. These can be made orally or in writing, and can be express or implied. A common problem is the transferor who says a dog is safe with children and other animals when, in fact, the transferor has no reasonable basis for making the assertion. At the present time, there exist a number of temperament tests for evaluating whether a dog is suitable for placement, but despite the practical advantages of such tests, their use has not become so universal as to provide a reliable shield against liability. Therefore it is difficult under any circumstances to predict that a dog will be safe in a new environment.

All too often, transferors go so far as to lie about a dog's suitability, saying a dog is safe when they have not investigated its history, evaluated its temperament or observed it for a sufficient amount of time. This is especially egregious when the dog was received under circumstances that strongly indicate it was a potential danger to animals or humans.

Breach of duty does not take place only where the transferor makes statements about the dog. A shelter that places dogs into the homes of families should know that the public expects that only suitable dogs will be placed. Essentially an implied warranty of suitability arises from the very relationship between the public and the shelter. People have the right to expect either a suitable dog or at least a full disclosure. The policy of many shelters is to refrain from gathering information about dogs, and to simply pass the dogs along to new families without providing any information about the animals. This policy ignores the obvious risks of this practice and the reasonable expectations of the public, and as such is not only a breach of that trust but also may result in civil liability -- and possibly more, as discussed in the next paragraph.

There can be criminal consequences if a dangerous dog seriously injures or kills someone in the new household. In recent years there have been at least two criminal prosecutions of adoption agencies and their volunteers. In one case, an agency placed a dangerous dog with an elderly woman and, 10 days later, it brutally killed her. It turned out that the dog was accepted by the agency under circumstances that clearly implied that the animal was vicious. A criminal prosecution for homicide resulted.

Complicated problems may arise for any adoption agency or rescue organization that retains ownership of the dog after placing it in a new home. By doing so, the agency or rescue organization is going to be held responsible for anything that a dog owner can be responsible for -- possible animal cruelty violations all the way to civil liability in the event that the dog bites anybody. (For further information, see Legal Rights of a Dog Bite Victim on this web site.)

The liabilities, immunities and special procedural protections available to governmental entities and their employees may restrict claims against them. Some aspects of this topic can be found in Special rules for governmental defendants, but you are advised to consult with an attorney if your claim involves a governmental entity or its employees.

Attorney Kenneth Phillips has lectured throughout the USA to rescue and adoption organizations, among others. His seminar was made into a DVD, and the important legal agreements, waivers and internal policies that he presented in the seminar were turned into legal documents on a CD-ROM that are ready to use. These two items are packaged together and called Avoiding Liability When You Train, Shelter or Adopt Out. The set has been reviewed as "a necessity for the canine professional." It is very reasonably priced. To find out more about it, click here.

How a transferor can protect himself from liability for breach of duty to the new dog owner

An adoption agency or rescue organization should consider taking several measures to avoid liability. Attorney Kenneth Phillips has created an Adoption Agreement for adoption organizations and rescue groups that limits your exposure to claims that arise after you adopt-out a dog. The contract is one of a number that are included in the Avoiding Liability When You Train, Shelter or Adopt-Out. On that same CD ROM, there is a document entitled Policy and Procedures for Observing and Reporting Problems with Dogs, which is essential for preventing and avoiding liability for dog bites. Learn more about this important legal package by clicking here.

Here are some basic suggestions for adoption agencies and rescue groups. They are NOT a substitute for Avoiding Liability When You Train, Shelter or Adopt-Out, which not only discusses these points at length but also contains a CD-ROM of all the documents needed to place most of them into effect:

Incorporate as a non-profit corporation. This has several advantages. You can get a 501(c) letter from the IRS, which will permit you to accept contributions and will enable the donors to write off their donations. You also will usually avoid personal liability in the event of a lawsuit, unless the suit alleges wrongdoing by the board itself -- including mistakes in creating policies for, setting up and running the organization.  

Obtain liability insurance that covers the premises where your organization carries out it activities, mistakes by members, agents and employees, and board of directors liability (see Avoiding liability for mistakes and decisions of the board, below.)

The organization and its members should not be the owners of the dogs. Have the attorney set up some kind of receipt or contract for rescued dogs which says that you are the bailee or temporary caretaker, and that the person who previously owned the dog still owns it.

When taking a new dog from a person (as opposed to finding it on the street), have him or her fill out a form that inquires about the dog's dangerousness. It should track the information that should be in the written agreement (see next section).

In addition to the form that is to be filled in by the person who gave you the dog, there should be a second form that is filled in by your intake person and others who have contact with the dog, listing problems such as health issues and dangerousness (to people, animals and property).

You should disclose to the new owners everything noteworthy about the dog's health, dangerousness, and other information listed in the written agreement (see below).

You should use a written contract with the new owners that relieves you of liability. Among other things, it should contain information about health, dangerousness, etc. The complete provisions can be found in Avoiding Liability When You Train, Shelter or Adopt-Out.

You should sell or transfer ownership of the dog. You should not retain ownership of it. All of these measures, which protect not only the organization but also the public, are discussed in the DVD that is part of Avoiding Liability When You Train, Shelter or Adopt-Out.

A written agreement can protect a transferor

A written agreement may go a long way to relieving a transferor from liability for dog-inflicted injuries. If you are an adoption agency or rescue group, you should use the agreement included in Avoiding Liability When You Train, Shelter or Adopt-Out. If you are a non-commercial seller or buyer of a dog, you should write a contract that contains the following provisions, at a minimum:

Identify the dog, the seller and the buyer, as accurately as possible. State the price and the date the price was or will be paid. Specify the date that ownership passed or will pass from the seller to the buyer.

Disclose the dog's age, gender, breed (if known), diseases, illnesses, injuries, disabilities, vaccinations, next vaccination date, and special requirements.

Disclose any problems with the dog's temperament, whether it is hostile or afraid of children, whether it has bitten anyone, whether it has any dangerous propensities, whether it has the propensity or habit of attacking other animals, and whether it has been declared a dangerous, vicious, or potentially dangerous or vicious dog. Please note that the transfer of a dangerous dog might lead to liability on the part of the former owner, despite anything to the contrary in the contract. Courts will not enforce a contractual provision that is contrary to public policy, or that restricts the rights of a third party such as a dog bite victim.

Disclose whether any professional has given an opinion, advice or warning about the dog's health, socialization, training, or temperament. Recite that the registration and health records of the dog have been or will be given to the new owner.

Avoiding liability for mistakes and decisions of the board

Rescuing and adopting-out dogs is a wonderful activity, but also can be dangerous and legally risky.

There are many ways that mistakes can be made where animals are involved. Animals of all sorts are unpredictable. The people who are devoted to rescuing them are frequently under-trained, unpredictable, unrealistic, and too willing to excuse bad canine behavior when they believe that a dog has been mistreated.

Compounding the difficulty of running a rescue, there is a gray area in the law as it pertains to the difficult decision to either adopt out a dog, confine it somewhere indefinitely, or euthanize it.

Unpredictable dogs, emotional rescuers, legal gray area -- the possibility of landing in court is very real.

To keep the directors, members, agents and employees out of trouble, you need to have reasonable policies, taught to all, and carried out regularly. An example is the policy that relates to dangerous dogs, which is on the Avoiding Liability CD ROM. Especially if a rescue organization has no insurance, it needs to pass a corporate resolution that adopts this policy, because it implements safe and reasonable procedures that therefore should protect not only the public from harm but also the organization from liability. Even if your rescue has insurance, however, you still need to implement this policy, because you certainly do not want to see anyone get hurt, hear the public complaining about your dogs, or invest time, energy and feelings in defense against a lawsuit.

While reasonable, safe policies are best to keep your organization running smoothly, a comprehensive policy of liability insurance is essential if something goes wrong. You need insurance that will cover the organization's premises, its day to day activities, and its board members. While there are protections that favor the directors of a non-profit corporation, one can still get sued even if one will eventually win. A lawsuit can be a very big and expensive burden -- something an insurance company can deal with, and that you must avoid.

The bottom line is that you need to learn how to avoid liability when you engage in rescuing and adopting-out dogs, your organization needs to adopt the protective documents that have been made available on the Avoiding Liability CD ROM, the rescue also needs to implement the safe policies that are explained on the Avoiding Liability DVD, and finally, you need liability insurance as your last line of defense.

Retaining ownership of a dog when it is placed in another's home

There are times when a dog owner must place his companion in another home for an extended but nevertheless temporary period. For example, reserve soldiers who are called to active duty, and people who are displaced by natural disasters often must give up possession of their dogs, but expect to get them back when circumstances change.

A number of issues must be addressed when making these arrangements. Some of the most important include authorizing the caretaker to provide at least a certain amount of veterinary care and agreeing to pay for the same, deciding who would be held liable if the dog causes damage or bodily injury to a person or another pet, and making it clear that the original owner shall remain entitled to take back the dog at the owner's sole election.

A written agreement is a necessity in this situation. While it might feel "counter-intuitive" to have a signed contract between friends or family, in fact it is most prudent to do so, because a written agreement prevents misunderstandings and hurt feelings. Attorney Kenneth Phillips advises that it is actually more important to have written agreements with friend and family than with others, because a breach of understanding between people who are close to each other causes not only monetary harm but also damage to relationships, which cannot be measured in monetary terms.

Such an agreement was prepared by Mr. Phillips and is available for free. Click on the picture, to the left, to download it.

www.dogbitelaw.com and each of its sections and products, including Dog Bite Law, The Dog Bite Law Adviser, Dog Bite Litigation Forms, What To Do If Your Dog Is Injured Or Killed, Avoiding Liability When You Train, Shelter or Adopt-Out, Anatomy of a Dog Bite Case, and the foregoing text, are (c) 1999-2008 Kenneth M. Phillips. All rights reserved. Reproduction in whole or part prohibited except where advance permission is granted in writing. Please read the disclaimer and our rules for linking and quoting. Reporters seeking interviews are welcome to click here.