Nothing seems to strike fear in the hearts of animal-shelter and rescue leaders like the possibility of getting sued. And it can be easy for that fear to drive shelters and rescues into making decisions that aren’t necessarily in the best interest of the animals.
Part of that fear is legitimate: anybody could get sued for anything. But the important question in assessing legal risks isn’t whether you could get sued for something; it’s whether you are likely to be held liable if you do get sued. Being held liable is being held legally and financially responsible for damages resulting from your action (or inaction).
Before we start, please note that this post is not legal advice, but rather information that shelter and rescue leaders should use when developing a legal strategy with their attorneys. That said, how can animal shelters and rescue groups reduce the chances of being held liable? There are three basic strategies: (1) conduct; (2) contract; and (3) insurance.
The first way to reduce the chance of being held liable as an animal shelter or rescue group is to take affirmative steps to reduce the types of conduct most likely to lead to liability. A good example is to disclose everything you know about an animal—both medical and behavioral—to an animal’s prospective adopter. If you disclose all medical symptoms you’ve noticed (treated or not) along with any behavioral issues you’ve seen (or been told about) to a prospective adopter, that adopter will be far less likely to ever successfully hold you liable for medical or behavioral issues related to the ones you disclosed.
Just as important as what you do to reduce liability risks is what you avoid doing. For example, we frequently hear pet-adoption groups say that a particular dog is “good with kids” or “friendly to cats.” Making these kinds of promises increase your chances of being held liable if the animal does not behave in the adopter’s home the way you promised. What happens if a dog you promised was “good with kids” bites a child in the adopter’s home? You guessed it: you’re getting sued, and you may be held liable for breach of warranty. Avoid making warranties.
A second and equally important way to reduce liability is by contract. In other words, the shelter or rescue group reaches an agreement with other persons to limit the shelter or rescue group’s liability under particular circumstances.
There are at least three chances to limit liability by agreement in the shelter or rescue context: (1) adoption agreements; (2) volunteer agreements; and (3) foster agreements. Generally, agreements designed to limit liability should include waiver provisions that expressly identify the conduct for which liability is waived and the party whose liability is waived. Limitation-of-liability agreements should also include language putting the accepting party on notice of the risks inherent in adopting, volunteering, or fostering animals.
Another line of defense against being held liable as a shelter or rescue is obtaining insurance. If an insurance policy is triggered by a particular incident, the insurer may have a duty to provide for your organization’s defense to litigation as well as to cover any judgment—up to the limits of your policy. A few things to keep in mind when obtaining insurance: (1) whenever possible, seek insurance for conduct that presents the most risk to your organization (note: this might include automobile insurance); (2) make sure to meet any deadlines to report incidents to your insurance company; and (3) once you invoke your insurer’s duty to defend, the insurer may choose to settle your claim—even if you’ve done no wrong—which could result in an increase to your future premiums.