Liability for dog attacks: Ed Boks for shelters, Kenneth Phillips for victims – Journal Today Online

Shelter liability is best reduced by not keeping or rehoming dangerous dogs

            LOS ANGELES––“Animal shelters across the nation are grappling with the dual pressures of rising insurance costs and overcrowding,  creating a crisis that demands immediate attention,”  opened Animal Politics blogger Ed Boks in his June 9,  2024 column.

Having pointed out the same issues back in April 2014,  in one of the very first ANIMALS 24-7 postingsWhy we cannot adopt our way out of shelter killing,  and having subsequently published well over three hundred articles addressing them,  ANIMALS 24-7 welcomes recognition of the problem from Boks.

Who is Ed Boks?

Boks’ resumé in animal welfare includes having headed the animal control departments in Maricopa County,  Arizona;  New York City;  Los Angeles;  and Yavapai County,  Arizona,  plus the Spokane Humane Society.

But Boks’ title Protecting Shelter Animals Amid Soaring Insurance Costs and Legal Battles and his subtitle,  “Proactive Strategies for Managing Liability and Ensuring Safety for Shelter Animals,  Staff,  Volunteers,  and the Public,”  both put the cart before the cart-pulling mastiff,  even before one recognizes that the real problem is pit bulls,  pit bulls,  and more pit bulls,  to the extent that merely walking into the kennel section of many animal shelters has become somewhat like being an early Christian walking into the Roman Coliseum.

Ironically,  Ed Boks himself has acknowledged the pit bull overpopulation issue,  and has acknowledged,  further,  that it is a breed-specific issue:

Los Angeles

Meanwhile,  the question in Los Angeles,  in the 16 years since Boks left,  is no longer whether workers,  volunteers,  and visitors will be mauled,  but when.

At least 21 workers,  volunteers,  and visitors have been mauled since 2018 as a direct result of Los Angeles Animal Services’ efforts,  often guided by recommendations from the Best Friends Animal Society,  to be “no kill,”  a status which an animal control agency can only achieve by either refusing to impound dangerous dogs,  or rehoming dangerous dogs to the public,  even as they jeopardize staff and volunteers––and other animals––every hour they remain in custody.

(See Dogo Argentino attack spurs notice of mayhem to shelter staff & volunteers.)

Protecting the public is the first duty of animal control,  not the last

“Protecting shelter animals” is not the first duty of an animal control shelter.  Neither is “ensuring safety for the public,”  as Boks listed last on his list of shelter duties,  last on the list of what taxpayers fund animal control shelters to do.

Animal control shelters exist to protect the public,  including the pets and livestock of the public,  and wildlife,  who are legally recognized as public property,  from dangerous animals.

This is fundamentally different from the mission of a humane society,  whose purpose is to protect animals from dangerous people.

Even if the facilities of a humane society tend to resemble those of an animal control shelter,  and even though animal control sheltering is often contracted out to humane societies,  these missions are in such contrast,  if done well,  that they should never be conflated or confused.

“No kill” animal control is only possible if there are no dangerous dogs

A dog who is not dangerous should not remain in an animal control shelter past the mandatory holding period to allow for reclaim.  Transferring that dog to a humane society,  foster situation,  or shelterless rescue is both appropriate and necessary for the psychological health of the dog.

Conversely,  a dog who is dangerous should never leave the animal control shelter alive––because no innocent person and no innocent animal should ever be killed or disfigured by a dog,  and dog behavior is sufficiently predictable that no dog who has ever attacked people or pets without strong provocation should ever again be trusted.

“No kill” animal control sheltering is in theory possible,  as ANIMALS 24-7 explained in the keynote address at the first No Kill Conference in Phoenix in 1995,  but only if dangerous dogs,  including pit bulls,  bred specifically to be dangerous for more than 500 years,  are sterilized out of existence,  so that almost every dog impounded by animal control is a harmless,  confused lost pet found running at large,  who can be safely rehomed.

Boks assails strict liability laws

From putting what should be the first priority of animal control shelters last,  Boks wrote that following his previous column Rising Insurance Costs and Overcrowding Imperil Shelter Animals basically a lament that insurance companies are beginning to charge realistic rates for covering pit bulls and other dogs of actuarially established dangerous breed,  posted on June 5,  2024,  he “sought a deeper understanding of the issues.

“In a separate conversation with an attorney specializing in animal welfare law,”  not naming the source,  evidently an attorney who either did not clearly explain the legal issues or did not understand them,  Boks said he “learned about the significant problems strict liability laws in various states pose for shelters.”

Did not mention “one free bite” laws

“These laws prevent insurance companies from contesting dog bite claims,”  Boks incorrectly alleged,  “sometimes leading them to refuse to insure an animal shelter altogether.

“Approximately 36 states have strict liability laws regarding dog bites, ”  Boks said,  “making dog owners strictly liable for injuries caused by their dogs,  regardless of prior knowledge of aggression or the severity of the bite.”

Boks did not mention that the other 14 states have “one free bite laws,”  which basically mean that even if a dog kills someone,  or another animal,  the dog owner may not be liable,  and often nothing may be done to keep the dog from killing or disfiguring someone again,  or from killing more animals.

Attorney Kenneth M. Phillips responds

ANIMALS 24-7 forwarded Boks’ blog posting titled Protecting Shelter Animals Amid Soaring Insurance Costs and Legal Battles to Kenneth M. Phillips,  of Los Angeles,  an attorney since 1976,  who is the senior specialist in dog bite cases worldwide and is author of his own Dog Bite Law blog.

“Ed Boks’ article is flawed due to its reliance on incorrect information,”  responded Phillips.  “For example,  he states,  ‘I learned about the significant problems strict liability laws in various states pose for shelters.’  He refers to statutes that make dog owners legally liable for dog bites on people and occasionally other animals.

“Boks claims that ‘these laws prevent insurance companies from contesting dog bite claims, sometimes leading them to refuse to insure an animal shelter altogether.’

“This assertion is not necessarily accurate for several reasons,”  Phillips explained.  “Strict liability laws apply to dog owners,  and sometimes harborers and keepers,  but shelters only fall under these laws if specified by state law.

“For instance,  California designates a public shelter as a ‘depository,’  exempting it from the strict liability statute.  In states like Maine,  New Jersey,  and Virginia,  shelters only become the dog’s owner after a certain number of days.

“Even if strict liability applies to the owner,  harborer,  or keeper,” of a dangerous dog,  Phillips continued,  “it may not be available for the victim.  Dog bite victims working for shelters cannot sue,  due to workers’ compensation laws.”

“Additionally,”  Phillips reminded,  “those who adopt or foster often sign contracts,  foolishly,  that waive their right to sue for dog bites caused by the shelter’s negligence,”  for instance by failing to advise adopters and fosters of a dog’s prior bite industry.

Only two states,  Virginia and California,  make disclosure of bite history mandatory.

Boks advises shelters to require staff,  volunteers,  visitors,  and adopters to sign waivers.

“If the strict liability statute applies and the victim can use it,”  Phillips added,  “other laws protect public shelters.  ‘Governmental tort laws’ often prevent injured parties from being compensated. Many states have ‘discretionary immunity’ laws,  which shield the government from liability for even the worst decisions made after weighing different options.”

Los Angeles case allowed animal control to not confiscate pit bulls

“For example,”  Phillips cited,  “in County of Los Angeles v. Superior Court (Kameron Faten) (2012) 209 Cal.App.4th 543, ”  a case that originated with a pit bull attack shortly after Ed Boks’ departure from Los Angeles,   occurring in Los Angeles County rather than within Boks’ former jurisdiction,  “a boy’s lawsuit was dismissed because the animal control department had used its discretion in deciding not to confiscate the pit bulls who attacked him.

“Further,”  Phillips pointed out,  “it is incorrect that ‘these laws prevent insurance companies from contesting dog bite claims.’  These laws have exceptions for victims who provoke a dog or are trespassing,  and for dogs assisting police or military.

“Some statutes,  like one I wrote for Tennessee,”  Phillips said,  “only apply if the attack occurs in a specific location.  Others,  like in Colorado,  limit the compensation a victim can receive. Most jurisdictions prevent recovery if the victim ignored warnings about the dog,”  for instance walking through a gate posted with a “Beware of the dog!” sign.

Frivolous claims

Strict liability laws,  claimed Boks,  “encourage frivolous claims and have given rise to a cottage industry of ‘animal lawyers’ exploiting these laws for profit.”

Responded Phillips,  “This is illogical since lawyers working on a ‘no win,  no fee’ basis,”  as most personal injury lawyers do,  “earn nothing and lose their investment in cases dismissed by the court.

“In reality,”  Phillips noted,  “less than 1% of dog bite victims receive compensation.  Although dogs bite at least 4.5 million Americans annually,”  according to a Centers for Disease Control & Prevention estimate not updated within the present century,  “insurance companies only compensate 19,000 victims,  according to the Insurance Information Institute.”

“Not all cases are frivolous,”  Boks concedes

            “Not all cases are frivolous,”  Boks conceded.  “A recent $6.8 million judgment against Los Angeles Animal Services illustrates the severe consequences of inadequate risk management.  A volunteer was severely mauled by a dog, resulting in significant nerve and bone damage. The case highlighted several critical issues:

  • Lack of Proper Warnings: The dog’s aggressive history was not adequately documented or communicated to the volunteer.
  • Understaffing: The shelter’s reliance on volunteers without sufficient staff support contributed to the incident.
  • Response Time: The volunteer’s calls for help went unanswered for over five minutes, exacerbating the injury.”

            (See Jury orders L.A. Animal Services to pay $6.8 million to mauled volunteer.)

“Judgment sets a precedent”

            “This judgment sets a precedent for other pending lawsuits involving employees,  volunteers,  and adopters injured by shelter dogs,”  Boks wrote.

“In 2022,”  Boks summarized,  “dog bites represented 24% of all insurance claims but accounted for 44% of insurance payouts,  amounting to $1.136 billion.

“While the number of annual bites has remained fairly stable over the past decade,”  Boks asserted,  apparently because the non-updated 25-year-old Centers for Disease Control & Prevention estimate is still widely circulated as if current,  “payouts have skyrocketed 131% since 2014,  largely due to attorneys leveraging strict liability laws.”

Four of the 10 states with the highest insurance payouts do not have strict liability

Objected Phillips,  “The cumulative price increase in the United States during this period was 32.45%, and not all states have strict liability statutes.  In fact,  four of the ten states with the highest insurance payouts do not have these laws.”

The frequency and severity of dog attacks over the time frame since 2014 is also relevant.  The ANIMALS 24-7 log of fatal and disfiguring dog attacks,  kept since 1982,  shows a 57% increase in the number of dogs involved,  2014-2023,  including a 66% increase in the number of human victims and a 25% increase in the number of human fatalities.

The pit bull contribution to the mayhem,  60% of the total in 2014 and 66% in 2023,  included a 78% increase in human fatalities and a 260% increase in disfigurements.

In this light,  the 131% increase in payouts looks as if attorneys have only done half as well at “leveraging strict liability laws” as they should have.

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