Liability
of seller, rescue organization or adoption agency for dog-inflicted injuries
Sellers, rescue organizations,
adoption agencies, dog owners, harborers and keepers have certain obligations
when they place a dog with a new owner, harborer or keeper. Those obligations
range from the licensing of a "pet store," to civil liability for
adopting out a a dangerous dog. There can even be criminal consequences
if a dangerous dog seriously injures or kills someone in the new household.
For example, in September 2003, police considered filing criminal charges
against an adoption agency that placed a Doberman with a new owner, because,
ten days after the adoption, the dog killed the woman who adopted it.
In most ways, it
does not matter whether the "transferor" of the dog is a person, a business
entity or a governmental entity, and it does not matter whether the transferor
calls himself or itself a seller, rescuer, adoption agency or anything
else. The basic obligations are the same, although the particulars will
differ. Because there are more similarities than differences among the
sellers, rescue organizations, adoption agencies, dog owners, harborers
and keepers, they will be referred to, in this section of Dog Bite Law,
as "transferors" (i.e., a person or a company that "transfers" something
is a "transferor"). For the same reason, new owners, harborers and keepers
will be referred to as "transferees."
An analysis of the
obligations of a transferor must begin with the law of the state having
jurisdiction of the transferor. Many states take a position as to the responsibilities
of people or entities that come into possession of a dog. For example,
California has a "policy" that "adoptable" dogs should be adopted instead
of euthanized (see below). Note the distinctions made, however, between
"adoptable" and "treatable," and (in the second subsection) the limitation
of liability:
1834.4. (a) It
is the policy of the state that no adoptable animal should be euthanized
if it can be adopted into a suitable home. Adoptable animals include
only those animals eight weeks of age or older that, at or subsequent
to the time the animal is impounded or otherwise taken into possession,
have manifested 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, and have manifested no sign of disease, injury,
or congenital or hereditary condition that adversely affects the health
of the animal or that is likely to adversely affect the animal's health
in the future.
(b)
It is the policy of the state that no treatable animal should be euthanized.
A treatable animal shall include any animal that is not adoptable but
that could become adoptable with reasonable efforts. This subdivision,
by itself, shall not be the basis of liability for damages regarding
euthanasia.
Under the California
statute above quoted, or a similar law in another state, a question arises
as to whether there are consequences for disobedience. The law calls itself
a "policy of the state." What is the penalty (if any) for failing to carry
out "policy of the state"? Even more confusing, the second subdivision
says that "this subdivision" cannot be used as grounds for
imposing "liability for damages." Does this mean that the
prior
subdivision can impose liability? And does it mean that even the second
subdivision can be used to impose criminal or administrative liability
(i.e., as opposed to liability for damages, which means civil liability)?
A transferor normally
will not be liable for dog-inflicted injuries if a written agreement, such
as the one suggested below, relieves the transferor of liability, or, in
the alternative, after all of the following events have occurred:
-
The sale or adoption
is finalized.
-
The transferee is given
possession and control of the dog.
-
The transferor relinquishes
all incidents of ownership.
-
The dog is taken from
the premises of the transferor.
However, a transferor
might still be liable if all of the following are true:
-
The dog has a dangerous
propensity or had previously bitten someone.
-
The transferor knew
or should have known about the dangerous propensity or biting incident.
-
The transferor failed
to warn the purchaser about the dangerous propensity or previous bite.
A transferor may also
be liable for breach of a promise, representation or warranty that was
made orally or in writing.
All too often, transferors
violate the rights of others by lying about a dog's suitability for placement
in a new home, saying the dog is safe when they have not conducted a thorough
evaluation and investigated the history of the dog, and adopting out a
dog that they did not investigate and received under circumstances that
should have made them aware that the dog was a potential danger to animals
or humans.
It is very difficult,
however, for the victim to prove these things. To show that somebody is
lying, for example, you have to prove that the facts were otherwise, and
that the person subjectively knew it. You almost have to be inside his
or her head to prove something like that.
The second ground
above-described is based on the transferor's failure to conduct a thorough
evaluation and investigation. In order to prove that, however, you yourself
have to conduct a thorough investigation, looking at their records perhaps,
or talking to their employees if they have any. That is very difficult
to do. To see their records, you have to sue them first and then subpoena
them, so you have a "chicken and egg" problem.
Finally, the third
ground above-described requires you to prove that the transferor received
the dog under suspicious circumstances. But how can you prove that without
having been there? You would have to, once again, do a very thorough investigation,
reviewing their records and possibly talking to their employees. Therefore,
while it is possible to bring suit against a transferor, it is difficult
to prevail.
Complicated problems
may arise for any adoption agency or rescue organization that retains
ownership of the dog. 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.
For all
these reasons, it is recommended that buyers and sellers, adoption agencies
and other transferors use a written agreement. (If you are an adoption
agency or rescue group, see "Avoiding
Liability When You Train, Shelter or Adopt-Out." If you
are a seller or buyer -- but not a commercial seller -- then see below).
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Avoiding
problems and liability by using a written agreement
A written
agreement may go a long way to relieving a transferor (i.e., seller,
rescue organization, adoption agency, etc.) from liability for dog-inflicted
injuries. Naturally, the transferee has to be a competent adult, not
some child who might not understand or be legally capable of releasing
you from liability.
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.
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