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No More Homeless Pets Forum
June 16, 2003 Protecting Your Organization & Animals |
Animals and the law: how can you protect your organization and the animals? Animal attorney M. Ellen "Dixie" Dixon, author of Legal Forms and Agreements for Dog and Cat Shelters and Rescue Groups will answer your questions about legal issues affecting your shelter and the animals you adopt out.
Introduction from Dixie Dixon:
"A puppy we adopted out became ill right after adoption, and the family said they were going to sue our rescue group under a state puppy lemon law. Should we be worried?""Our adoption organization placed a stray cat in a new home, and two weeks later the original owners called looking for their cat. What should we do?"
"A large dog we placed in a new home chewed the leg off an expensive chair. The family says we owe them a new chair. Do we?"
These are just three examples of the many hundreds of questions that your animal welfare organization may face each year.
Related Resource: Insurance: Covering Your Tail! (http://www.bestfriends.org/nomorehomelesspets/pdf/insurance.pdf) A resource for animal welfare organizations, published by Best Friends Animal Society.
Questions
Pet limit laws
Breed specific legislation
Adoption contracts
Liability for feral cats
When adopters don't return the animal to the shelter they adopted from
Are we liable if we place an animal that has nipped?
Paying for vet bills after adoption
Placing an animal that is an owner requested euthanasia
Mandatory spay/neuter
Abandonment laws
Holding strays for the required time limit before placing
Volunteering at a municipal shelter when there are unions and liability issues
Pet limit laws
Question from Cathie:
Our town has an ordinance that states a household has a two-dog limit. I've heard that, since most cities consider pets "property" and a town can't tell someone how much they can "own," this law would not stand up in court. What are your thoughts?Response from Dixie:
Cats and dogs are still treated as property in most states.Many communities are trying to impose restrictions on the number of pets you may have. I understand that most court challenges to such ordinances usually fail, though there have been exceptions. Even if there is no such ordinance, your neighbors can sue you under nuisance laws if your dogs bark all the time or if you don't clean up after them and there are offensive odors.
Condominiums and planned developments often have restrictions in their organizational documents that are hard to challenge. You would have to prove the rule is being enforced arbitrarily or unfairly, the rule is unreasonable, or it was not adopted by proper procedure.
If you want to challenge an ordinance, I recommend that you gather as large a group of pet owners and shelters that you can. There is some strength in numbers.
Clearly if you have more pets than are allowed, you want to be a model citizen so that neighbors are not likely to have a reason to complain.
Breed specific legislation
Question from a member:
I live in a state where there is very strong breed-specific legislation labeling pitbulls as "vicious" and requiring $100,000 liability insurance, muzzling the dogs when walking them in public, and a covered kennel when they are outside. If a pitbull even gets loose, but does not bite, the dog warden in my county will impound him and put him down. I have heard that he is trying to get Rottweilers and Chows labeled "vicious" as well under the law. What can we do to fight this type of discriminatory law so that he cannot get other breeds included and does he have the right to put down an animal that has not bitten but only has gotten loose?Response from Dixie:
The trend is to uphold laws that ban pit bulls or place restrictions on them. A challenge to such an ordinance could be on the grounds that it is constitutionally vague because it doesn't adequately define the term "pit bull", or that it violates the owner's constitutional due process rights, because it arbitrarily bans one kind of dog. However, these challenges have not been very successful.In many states there are dangerous dog laws, that require the dog to behave dangerously first, and then is declared dangerous after a hearing, before restrictions are imposed. These laws are not breed specific. In many states, a dog legally declared to be dangerous can be killed if it is found running at large, even if no injury occurred during the escape. There can be criminal penalties imposed on the owner of a dangerous dog that injures someone.
When the U.S. was more agricultural, laws went on the books in many states allowing dogs running at large to be shot, especially if they were bothering livestock. There is a kind of presumption of danger from a dog running offleash. It would be difficult to challenge the euthanasia of a dog running at large that's already been labeled dangerous or vicious under the law.
If you decide to try to challenge the laws, you may wish to contact some of the national kennel clubs and special breed organizations to assist you.
Adoption contracts
Question from Cheryl in CA:
I am a volunteer with an animal rescue. We are afraid that our adoption contract may not be as enforceable as we'd like it to be. We are limited in funds to be spent on legal costs and would appreciate suggestions on how to get the low-cost advice mentioned. Thank you for any help you can offer.Response from Dixie:
I recommend that you compare your contract to the contracts in the book of legal forms I wrote. The book is not very expensive, and that may be the least costly way to fix your contract. Don't skip any of the legal language that's in the contract. Be sure to keep an original signed in ink when you complete the adoption. For information on ordering the book, visit www.legalformsforpetrescue.com.Liability for feral cats
Question from Judi:
If I am feeding a feral cat colony in a business park. If one of those cats bites or scratches a business park employee, will the feeder be legally liable for injuries? Who is responsible for injuries cased by feral cats?Is there case law that I can reference? Is there any protection provided to the rescue group or individual?
Response from Dixie:
Whether you are responsible will depend on how "owner" of a pet is defined in your community. Usually an owner is defined as one who harbors, keeps, feeds, or cares for a cat or dog. This definition may be found in state law or in local law. There is probably a good argument that one who regularly feeds and cares for feral cats is the owner, but you can probably support the opposite view as well, because of the unique nature of a feral cat and its distaste for contact with humans. I suppose if you put out a salt lick for free-roaming deer, you're probably not going to be responsible if those deer run into a car on your street, but someone could fashion an "attractive nuisance" argument that might be supportable. It would be hard to find case law on this point, but you might contact the Animal Legal Defense Fund in Petaluma, CA. Sometimes they are willing to send out a broadcast message to the member attorneys to see if anyone actually handled a case involving the issue.A feral isn't likely to bite someone unless cornered, so I wouldn't think there is too much risk. Certainly you want to be sure the cats are up to date on rabies shots to avoid a disaster. Have you educated the people who work around there about the cats, so they understand that the cats don't want to be touched?
I recommend that all non-profit animal welfare organizations carry public liability insurance that covers the activities of their volunteers. If you're not a volunteer for a specific organization, you may want to consider joining one that has such insurance.
When adopters don't return the animal to the shelter they adopted from
Question from Michelle:
Many rescue groups in our area have had problems with one local shelter not returning animals to rescue organizations when an owner relinquishes the animal to the shelter for whatever reason. Most rescue adoption contracts require that owners return the animal back to the rescue organization if for any reason they must give the pet up. Still, some people take the animal to this shelter that does not work with rescue groups. Despite the fact that we can often prove in several ways that the animal came from a rescue organization, the shelter refuses to return animals to us, stating that this is between the rescue and the person that relinquished the animal. Do we have any ground to stand on in reclaiming the animal from the shelter?Is there any law that supports a rescue group's "ownership" of an animal if an adopter returns the animal to a shelter? We are currently working with the shelter to try to get them to work with rescue groups, but this may take a long time. Is there any manner in which we could draft our rescue contracts that legally provides us a right to reclaim the animal if turned over by someone else to a shelter?
Response from Dixie:
The problem is that the adoption contract binds you and the adopter, but it has no legal effect on a third party such as another shelter. You relinquish ownership to the adopter, and you don't regain ownership until the pet is surrendered back to you.Try to identify why the shelter is reluctant to give animals back to you. Is it the loss of revenue in adoption fees? The use of their employees' time? Prior bad relations? Unfavorable publicity? If you can probe enough to figure out why the shelter is uncooperative, you may be able to work something out.
Try to identify why adopters are surrendering their pets to someone else. Have they been made to feel guilty about letting you know the adoption didn't work out? Is it because they don't want to drive a long distance? Is it because your surrender hours are inconvenient? Do you check with them post-adoption to see how things are going? Maybe you'll need to offer to pick up pets from adopters, or to make special appointments for them to come to you. Let them know at the time of adoption that you'll go out of your way to help them return a pet.
I once brought a claim in District Court (small claims court) against a family that did not bring their dog back and left it at the local SPCA. The adoption agreement specified that the dog had to be brought back to the rescue organization. There was a liquidated damages clause in the contract for $500.00 for breach of the contract by the adopters. The rescue organization was awarded a judgment for $500.00. So if you have the energy to pursue some of these claims against the adopters in court, you may establish a reputation for being tough, so that adopters will think twice about violating the contract. However, I don't think you have a very good claim against the shelter to return a pet in their custody.
Are we liable if we place an animal that has nipped?
Question from multiple members:
If a cat scratches someone or a dog nips at someone before adoption, can some sort of "handle at your own risk" sign protect the organization from being held liable in a lawsuit. If you warn potential adopters that the dog may nip, can you still be liable if the dog ends up biting someone because you knowingly adopted out a nipping/biting dog (even if you don't think the dog is a risk and could be placed with the proper, responsible person)?Response from Dixie:
You can post a prominent sign in your shelter warning people not to stick their fingers in a cage, not to provoke the dogs, not to put their face near the cage, and so on. The sign can include an "assumption of the risk" provision. You can also put the same information into a short written release to be signed by each potential adopter who visits your shelter. Examples of these types of forms are in the book of legal forms I published. They don't provide ironclad protection, but they help.When you adopt an animal out, your adoption agreement should contain a clause excusing your organization for liability for any injuries caused by the cat or dog. Again, you may wish to look at the contracts in my book. Even though you have these clauses, an adopter may still bring a legal action against your organization, especially if there was some gross negligence or intentional misconduct on the part of your organization.
Liability laws on dog bites vary from state to state. Some states have strict liability laws, so the organization will be liable for a bite whether or not it knew there was a tendency. In another state, the owner of the dog may be liable only if it knew the dog had a tendency to bite. In yet another state the dog owner may be liable if he or she was unreasonably careless, and the carelessness caused the dog bite to occur. I recommend a book called Dog Law, by Mary Randolph, published by Nolo Press, for a good chapter on dog bites, as well as a lot of other good information you can use.
Be sure that your organization has adequate public liability insurance in the event you do receive a dog bite claim. I recommend to you an article in Animal Sheltering magazine, published by The Humane Society of the United States. On page 3 of the November-December 2002 issue is an article called "Shelters Feel the Effect of Insurance Industry Troubles". This article explains how a serious dog bite claim could put your shelter out of business if your insurance is cancelled by the insurer. You must seriously evaluate the animals in your care for any tendencies to risky behavior.
There are likely to be few statutes addressing liability for cat bites, but there is case law. Generally the legal principles being applied are going to be about the same as for dogs. The outcome will vary from state to state.
Paying for vet bills after adoption
Question from Debbie:
If an organization adopts out a pup that ends up dying, and the contract states we are not responsible for future vet bills, does that usually hold up in court? We're dealing with a situation where a pup died 10 days after adoption, after seeing the adopters vet and then entering an ER clinic where another ER doctor (different clinic) said too much fluids were given and that the pup drowned in those fluids. Some negligence is at hand for that ER clinic which did that... so what do you do when the adopter wants you to pay a $1500 vet bill?? We don't want any adopter unhappy but we are a small group with not a lot of funds for things like this, and again our contract states - "no future vet bills, etc.". What would your suggestion be? Thank you!!!Response from Dixie:
Hopefully your organization is featured on the Petfinder web site, so your adopters are eligible for the two months free insurance. This really helps to alleviate complaints about illnesses that occur close to the adoption date. Were these adopters covered by the Shelter Care insurance?I agree with placing a statement in the contract about not paying vet bills. I recommend you point that out to adopters during the adoption process. That way they won't be as likely to complain later. You can also place a sign in your shelter that you cannot pay for post-adoption veterinary care.
I recommend that you stick by your contract. In the nicest way possible, you need to explain to the adopters that you simply can't pay vet bills incurred after adoption, or you might not be able to continue operating your shelter. You need to be as sympathetic to what they've been through as you can.
You may want to include in your contract a clause that you are making no representations or warranties about the health, condition, or temperament of the pet being adopted. The sample adoption contracts in my book of legal forms and agreements contain such a clause.
Your contract should hold up in court.
Placing an animal when the owner requested euthanasia
Question from Annette in IL:
There are four really nice cats that were turned in to our animal control this past Monday. One Scottish Fold and 3 Domestic Short Hair. There is absolutely nothing wrong with these cats. The owner is having a heart transplant and can no longer keep them for medical reasons. He signed the relinquish of ownership form at animal control but verbally insisted that they not be adopted out. He wants them euthanized because he doesn't think they will get a good home. My question is since he legally relinquished the cats, he doesn't own them anymore and therefore shouldn't have a say if they are released to a rescue group. He signed nothing that said he wanted them euthanized. Everyone is afraid of the legal repercussions of releasing these cats which I'm not sure is justified since he doesn't "own" this "property" anymore. I believe animals are still considered property in our state.Response from Dixie:
The wording of the relinquishment form is important. I'm going to assume for this answer that it says that the surrender of the cats to the shelter is final and irrevocable, and that it is up to the shelter what it does with the cats.If it has language that allows the owner some leeway on the finality of the decision, then my answer would be different.
I'm not too concerned about the owner's verbal statements about wanting euthanasia. I think the case law relating to provisions in people's wills ordering that their pets be destroyed is instructive of how the courts might handle the situation. When there is such a provision in a will, if someone objects, such as the executor of the will or the local SPCA, the probate courts almost always find such provisions invalid. Even though this man's wishes were not expressed "from beyond the grave", I think a judge would not want to insist on euthanasia of the cats if it is shown that there are good families interested in providing good homes for the cats.
I believe it is not uncommon for pet owners to deliver their healthy pets to a veterinarian for euthanasia, and the veterinarian, offended by the request, surreptitiously places the pet in a new home. I anticipate that there may be case law on this type of situation that may be instructive also.
Mandatory spay/neuter
Question from Lorraine in TN:
I work at a well-known no-kill shelter and our state requires by law that all animals adopted from a shelter by spayed/neutered at six months of age. Our adopters of unsterilized puppies and kittens sign a contract agreeing to have the pet fixed at this age. Some of the local vets will not fix animals until 9 months of age or until the animal has been through its first heat or has had a litter! We often get adopters calling us saying that they received the notice that it is time to have their animal fixed but their vet will not do it. This is the law and it is even more frustrating because many other parts of our state fix animals as early as 8 weeks and we can't even get our vets to do it at 6 months! What can be done to get them to at least abide by the law?Response from Dixie:
I recommend that you put together a list of the veterinarians who will spay/neuter before 6 months, so that you have that available for your adopters. If an adopter has to go to a different vet to comply with the law, recommend that he or she should let the regular veterinarian know why they are taking their business somewhere else. Maybe the regular vet will cave in.I also recommend that you send a nice letter to the "old-fashioned" veterinarians asking them to reconsider their current policies in light of the overpopulation crisis.
You might want to enclose some literature on the topic. Maybe you could contact your state veterinarian association, to see if they have a policy, and whether it is progressive or not. If it's progressive, ask them if they'd consider spreading the word among their members that spay/neuter before six months is advised.
You could also contact the department at the capitol that oversees the enforcement of your spay/neuter laws. Often it is the Department of Agriculture, but it may be different in Tennessee. They may have some literature or some type of notice about the law that they could give you to mail out.
I am not aware of any way to force the veterinarians to change their policies. As long as there are some vets in the locale who will do the surgery by the deadline, the pet owner is not completely shut out. If, however, there is a locale where no one will spay/neuter by six months, and going to another vet would involve hardship travel, then I would ask the folks who administer the law to put some real pressure on the veterinarians because they're making it impossible for your shelter and for the adopters to comply with the law.
Abandonment laws
Question from Beccy:
In many, if not most states, it is illegal to abandon a domestic animal. Unfortunately, it is very hard to 'prove' that someone abandoned an animal. Can you give us any specific state where someone has been successfully prosecuted for animal abandonment? If not, do you have tips to enable us to uphold this law?Response from Dixie:
The best way to find an attorney who has handled such a case is to ask the Animal Legal Defense Fund in Petaluma, CA. They keep track of animal law cases, and if they have nothing pertinent, they may be willing to send out a broadcast message to their member attorneys. Ask to speak to Stephen Wells.Proving abandonment is going to be tough, unless someone actually witnesses it.
Holding strays for the required time limit before placing
Question from a member:
When a person or a rescue finds a stray cat or dog, can they immediately begin finding that animal a home or do they have to give them to animal control to hold for the required amount of time? Or, do they have to document that they tried to find the owner, and how they tried, for a certain amount of time? Our organization takes in strays, but we don't have a mechanism for trying to find the owner and don't want to get in trouble if we adopt out a dog that someone weeks or months later says is their dog.Response from Dixie:
I recommend that you always make a concerted effort to find out if the pet has been reported missing, and to report to your local shelters and rescue groups that you have found it. Some newspapers don't charge for "found" ads, and you may want to place one, leaving out some distinguishing characteristic that only the owner would know. There are some sites on the Internet where you can place notices of lost and found pets. You might as well use the legal holding period your local shelter or pound uses, to place yourself above reproach. You should scan the pet for a microchip or tattoo.Generally, if the owner has been lax about looking for the pet, and has waited a long time to look for it, then the owner is deemed to have abandoned the pet. If you have already adopted the pet out, after following the recommendations above, then I recommend refusing to divulge any information about the adoption. SPCAs usually refuse to reverse an adoption for the original owner.
Volunteering at a municipal shelter when there are unions and liability issues
Question from a member:
Our local dog warden will not allow volunteers to come in to his shelter and help in any way. We cannot walk dogs, help with adoptions, etc. because he says that interferes with union rules and it is also a liability. What can we say to him to convince him otherwise?Response from Dixie:
You might offer to sign waivers, and releases of liability, and a form agreeing to adhere to all their rules and regulations. I'm not sure how to get around the union issues, other than to contact the union directly to learn what their objections are, if any, and to see if their objections can be overcome. Do you think the warden is concerned about what you might see in his shelter?You might want to see if other municipal shelters in your state use volunteers, and find out how they accomplished it.
