Dogs owned by rescue groups are often around other people in various settings. I have handled several cases where a dog owned by a rescue group bit someone who then made a personal injury claim against the rescue or its foster. This can happen when:
– A member of the public is bitten at an adoption event or at the rescue’s facility.
– A rescue volunteer is bitten.
– A foster is bitten.
– A dog being fostered bites someone else—the foster’s child, a delivery person, the mail carrier, a visitor, a neighbor, a jogger at the park, a groomer, etc.
– An adopter is bitten.
Short answer
No, generally, a dog owner, including a rescue group, is not liable if a dog bites someone unless the owner: 1) knew or should have known that the dog might bite someone or that the dog had “dangerous propensities abnormal to its class,” or 2) violated an animal ordinance or law. If the dog owner had no reason to think the dog might bite someone or that it had abnormally dangerous propensities, then the owner is not liable for a dog bite. The owner may still be liable if there was a violation of an animal ordinance or law, such as a leash law or dog-at-large ordinance. I will explain below.
Liability insurance
My first piece of advice to rescue groups is to carry liability insurance. It isn’t as expensive as you might think, and it protects the rescue from personal injury claims and lawsuits. If the rescue gets sued, the insurance company will hire a lawyer to defend the rescue and if the rescue is found liable, the insurance company will pay the damages. But be sure the policy actually covers injuries caused by dogs. I once had a case where the rescue’s liability policy covered car wrecks and slip and fall injuries, but not dog bites! Debra Palacios is an insurance broker who helps Texas rescues with their insurance needs: debbie.palacios@iscential.com.
A dog owner or possessor is not automatically liable when a dog bites someone
Many dog owners and rescues, mistakenly think a dog owner or possessor is automatically liable if their dog bites someone just because they own or possess the dog. In fact, except for “dangerous domesticated animals/dogs” (discussed below), in order to be liable for a dog bite, the bite must have been caused by the negligence of the person who owned or possessed the dog. “Negligence” is defined as failing to use ordinary care by “failing to act as a reasonable, prudent person would have acted under the same or similar circumstances.”
Negligence
In Texas a dog owner or possessor is liable for injuries caused by a dog if they “negligently handled” the dog. Negligent handling of a dog occurs when its owner or possessor:
1) owed a duty to exercise reasonable care to prevent the dog from injuring someone,
2) did not meet that duty, and
3) the failure to meet that duty caused the injuries. (It should be noted that this rule does not only apply to dog bites; it also applies to a dog that hurt someone by jumping on them.)
Whether a dog owner or possessor owed a duty to prevent a dog from injuring someone depends upon whether the injury was “foreseeable” to the owner/possessor. The injured person has the burden of proving that the owner/possessor knew or should have known that the dog might cause the injury and was negligent in failing to prevent the injury. If a reasonable dog owner/possessor had no reason to think the dog might hurt someone, then they are not liable for negligent handling.
Negligence per se
A dog owner or possessor may still be liable for injuries caused by the dog if the owner/possessor was “negligent per se.” This requires the injured person to prove that: 1) the dog owner/possessor violated an applicable statute or city ordinance, 2) the violation was a cause of the person’s injuries, and 3) the statute or ordinance was designed to prevent an injury to “that class of persons to which the injured person belongs.” Negligence per se is often asserted in cases where a dog is off leash in violation of a city’s leash ordinance and the dog bites someone. Municipal leash laws are typically designed to prevent dogs off leash from injuring others. So, a person who is injured by an off-leash dog is in the “class of persons” that the ordinance is designed to protect and may have a claim against the dog owner or possessor who violated the leash law.
“Dangerous domesticated animals”
Under Texas law, if a domesticated animal such as a dog has “dangerous propensities abnormal to its class” and the owner/possessor “knew or had reason to know of the dangerous propensities,” then the owner/possessor is “strictly liable” for any injuries caused by that animal, even if the owner/possessor was not negligent. The court cases have not told us what is meant by “class,” but I think it probably means species rather than breed. So, for example, a German Shepherd that bites someone would have to have dangerous propensities abnormal for a dog, rather than abnormal for a German Shepherd. If a bite is severe, the victim will sometimes argue that the nature of the bite, by itself, is proof that the dog had dangerous propensities abnormal to its class. The victim still has the burden of proving that the owner/possessor knew or had reason to know of the dangerous propensities before the bite occurred.
Premises liability
If a rescue group or other animal owner or possessor has a facility or premises where dogs are kept and a person who comes onto that property is injured by a dog, the liability of the dog’s owner/possessor will depend upon the legal status of the person who was injured. This gets down into the weeds.
If the person was an “invitee” then the property owner/possessor will be liable if it failed to “use reasonable care to protect the invitee from conditions that create an unreasonable risk of harm of which the owner or occupier knows or by the exercise of reasonable care would discover.” (See negligence discussion above.) An invitee is a person who goes onto property with the property owner’s knowledge and for the mutual benefit of both parties. Examples include potential adopters who come to look at dogs, rescue volunteers, mail carriers, and meter readers.
If the injured person was a “licensee” then the property owner/possessor only had a duty not to injure the person “willfully, wantonly, or through gross negligence.” If the property owner or occupier had actual knowledge of a dangerous condition unknown to the licensee, there was a duty “to warn of or make safe the dangerous condition.” A licensee is “a person who enters and remains on property with the owner’s consent and for his own convenience.” Examples include a social guest or a salesperson.
If the injured person was a trespasser, then the only duty a premises owner or occupier owes is not to cause injury “willfully, wantonly, or through gross negligence.”
When an adopter or foster is bitten
An adopter or foster who is bitten by a dog may claim that the rescue knew or should have known that the dog had dangerous propensities and negligently failed to warn them. Rescues should consider including properly worded disclaimers in their foster and adoption contracts concerning a dog’s temperament and propensity to bite. Rescues should also consider disclaiming the “implied warranty of merchantability” in their adoption contracts. This is a warranty that Texas law imposes on all “merchants” that sell “goods” unless the warranty is properly disclaimed. (A disclaimer that is not done properly invalid and will not be recognized by the courts.) A rescue group that adopts out dogs usually meets the legal definition of “merchant,” and dogs meet the definition of “goods.”
Limitation of damages
Under the Texas Charitable Immunity and Liability Act , the liability of a 501(c)(3) “charitable organization” is limited to $500,000 per person or $1 million per occurrence if the organization had liability insurance in those amounts. The definition of “charitable organization” would include most incorporated animal rescue groups.
Immunity of volunteers and board members
The Texas Charitable Immunity and Liability Act also provides that “a volunteer of a charitable organization is immune from civil liability for any act or omission resulting in death, damage, or injury if the volunteer was acting in the course and scope of the volunteer’s duties or functions, including as an officer, director, or trustee within the organization.” A volunteer, foster, officer, or board member who is sued by someone who was bitten by a dog should assert this defense. However, immunity does not apply if the volunteer’s actions were “intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” There is a similar “Federal Volunteer Act.”
Waivers of liability/hold harmless clauses
I advise rescue groups to always have adopters and fosters sign written contracts and to put waivers of liability or “hold harmless” clauses in their contracts. Such clauses are valid and enforceable in Texas as long as they are properly worded and appear conspicuous in the contract. They must be specific about the types of legal claims and activities to which they apply. Otherwise, they may not be enforceable. The waiver language must also be conspicuous and not difficult to find or notice. A waiver of liability/hold harmless clause cannot be buried in the fine print, but should appear in large, bolded type, contrasting colors, or otherwise call attention to the clause.
Join the Texas Humane Legislation Network
All organizations and individuals in Texas who own, rescue or care for animals and care about the laws that protect them should join the Texas Humane Legislation Network (www.thln.org) This is a non-profit, grassroots organization that fights for animals in the Texas legislature. Most of the animal protections laws in Texas were passed because of THLN’s efforts. The more members THLN has, the more clout they have in Austin to get animal protection legislation passed.