Shelter Employees Are Second Class Dog Bite Victims

You may not know what “shelter dogs” are, but you’ve seen a few of the most handsome in television commercials, on the sides of buses, and in print ads. They are the dogs that find themselves in public shelters and private rescues for one reason or another. The vast majority are friendly, healthy, and need a home. Their images prompt many people to contribute money to public shelters and send donations to so-called “rescue groups.”

But not all shelter dogs are adoptable. Some are too sick or injured to be kept alive. And some are too vicious to live with people. At least, not if we care about the welfare of our neighbors as much as the dogs in those photos.

Some of the most upsetting maulings in history have turned into record-setting “shelter dog cases.” One example is Argelia Alvarado vs. City of Los Angeles in which a public shelter was held accountable for adopting-out a vicious pit bull that literally chewed off an elderly woman’s arm. Like so many other adopters, she and her family wanted only to give a friendly dog a forever home, but unwittingly accepted exactly the opposite kind of animal.

The question for dog bite law is what to do with the “shelter dogs” that are known to have acted viciously toward humans. Should those dogs be euthanized? Kept in cages? Put in remote locations where they can prey on each other instead of human beings? Or should they be placed in loving homes where they will supposedly morph into sweet, furry companions?

To answer that question, the law of dog bites is starting to grapple with a range of issues such as –

  • How and why a vicious dog is accepted into a public shelter or private rescue.
  • The manner in which it is treated when it resides there.
  • The decision to keep it alive or release it to a different public or private facility or to rehome it with a family.
  • The advertising and persuasion employed to convince a family to foster or “adopt” the dog.
  • The disclosures and warnings that are legally required to be given to the fosters or adopters.
  • The legal liability for harm later caused by the dog.

Some progress already has been made. But things are moving too slowly. For example, in In 2005, at the Biting Dog Conference held in Novato, California, I gave a 1-1/2 hour talk to an audience of animal control officers, public shelter workers, rescue groups, dog trainers, and lawyers. Fifteen minutes of the seminar was devoted to the importance of telling the truth when adopting-out a dog. I said shelters and rescues had a duty to gather information from the prior owners of a dog, record all their observations about the dog while it is in their custody, and then make a thorough written disclosure to the adopters of the dog, which should be signed by the adopters. Here is a clip from the video of the seminar:

 

The law I proposed in 2005 was not enacted until 2018 (in Virginia) and 2019 (in California). It is now 19 years later, and none of the other 48 states have passed a similar law.

Recently, there surfaced another variation of a “shelter dog case” that illustrates a glaring, dangerous flaw in dog bite law. A week ago, a shelter supervisor was horrifically mauled by clearly dangerous dog. (Read the details at LA Animal Services Shelter Supervisor Severely Injured by Dogo Argentino/Pit Bull Dog Awaiting “Rescue” by Phyllis Daugherty in City Watch). Despite her severe injuries, the law will not allow her to sue the shelter for its negligence. The reason is that she was on the job when the accident happened, so she is limited to making a workers compensation claim. It will bring her a small fraction of the amount of money that she will need to make her “whole” again. To get what other dog bite victims receive for those same injuries, she would need an attorney like me for a civil lawsuit. But she isn’t allowed to bring a civil lawsuit.

The workers compensation exception to dog bite law has made working in some shelters extremely dangerous. Many shelters have signed onto the “no-kill” philosophy defined by Best Friends Animal Society. “No-kill, as a philosophical principle, means saving every dog or cat in a shelter who can be saved.” (See “What No-Kill Really Means,” on the website of Best Friends.) The “save-rate benchmark” according to Best Friends is 90% of all dogs and cats entering shelters.

Where does that 90% benchmark come from? What evidence suggests that the number of unadoptable sick, injured, extremely old, and vicious dogs and cats in a typical shelter equals only 10% of the total number of them? There is no such evidence. For example, a study conducted in the 1990s and later published in the Journal of Applied Animal Welfare Science found that just 74% of dogs earmarked for euthanasia were adoptable. (Kass PH, New JC, Jr, Scarlett JM, Salmon MD. Understanding animal companion surplus in the United States: Relinquishment of non-adoptables to animal shelters for euthanasia. J Appl Anim Welf Sci. 2001;4 at p. 239, from Google Scholar, https://tinyurl.com/zubny9mb.)

Not 90%. Just 74%. The 90% benchmark is no more real than any other unattainable, pretty dream.

It has become clear over the years that the 90% benchmark set by Best Friends can only be obtained by adopting-out unadoptable dogs (and cats). That means adopting-out vicious dogs. Which means that vicious dogs are living at shelters where the employees have to take care of them.

Since the 1990s, I have answered questions about dog bite law on my website (dogbitelaw.com), and in the past several years I have noticed a trend: employees of public shelters are getting mauled more often when they are on the job. There have been so many complaints that I cannot help but believe that many shelters have chosen to be “no kill” facilities (where vicious dogs are sent to private “rescues” and even rehomed to families like the Alvarados) because being “no-kill” means more donations even though it also means more injuries to the staff.

To put it more bluntly, these shelters risk the dangers of being “no-kill” because they can escape full responsibility for failing to euthanize known vicious dogs, because workers compensation laws say that injured employees are not allowed to sue their employers for negligence. In this way, the law unintentionally treats shelter employees as second class dog bite victims. They are “second class” because they have sharply limited rights.

To me, this is the moral and ethical equivalent of inflicting intentional or at least reckless injuries on employees. I do not believe that the intention of the law is to allow employers to escape accountability under these circumstances. At some point, I would like to test my view in court on behalf of a similarly injured employee of a public or private shelter.