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.