A favorite motto in the obedience fancy is “try to avoid putting yourself in a position where you can get bitten.” In short, be prepared. It is a good motto in more ways than one, which makes it all the more surprising how often it is ignored. I am not thinking now of an instructor getting bitten by a dog but by a person – in the form of a lawsuit for injuries or damages incurred during a class either by the dog or the handler. Just recently another instance came to my attention in which an instructor was sued for $25,000 for injuries sustained by a handler during a class. It seems that two dogs began to have a go at it and one of the handlers was pulled to the floor and fractured her wrist. Naturally, nothing happened to either dog. The injured handler did, however, decide to sue the owner of the other dog as well as the instructor for $25,000. Needless to say, the instructor at first couldn’t believe it and was under the impression that he could not be sued. For some reason this is a very prevalent impression among instructors. Unfortunately it is not correct – you can ALWAYS get sued. Whether the suit will be successful is another question and would depend on the individual circumstances involved. Even if the suit is unsuccessful, however, it may entail the hiring of a lawyer which can be expensive. It so happened that the instructor involved was employed by a Recreation Department of a city for the purpose of conducting its training program. In that particular state, as in most, an employee of a city or other governmental unit generally cannot be successfully sued for acts occurring during the performance of his duties. The correct party to sue would be the city itself and the case against the instructor was dismissed.
But what about the instructor who belongs to a club or training school? He probably would not fare as well even if, for example, the club were incorporated and nonprofit. (The fact that a club or school is incorporated does not protect the instructor against liability in such instances.) Whether a suit would be successful would depend on the law of the state where the claim arose and the specific circumstances involved. There are, however, two ways in which an instructor can protect himself. The first, and probably the best way is insurance. Unfortunately, it is difficult to get, though by no means impossible, and expensive, usually between $150 and $200 a year. It is also not a realistic alternative for an instructor associated with a club. On the other hand, for an instructor conducting his own school it is well worth the cost in relation to the risk involved in not having it, particularly since it generally also covers the costs involved in being sued.
The second way is a release. The club with which I am associated uses this method. Following is a draft form of such a release which can be readily adapted to most situations.
WAIVER, ASSUMPTION OF RISK AND AGREEMENT TO HOLD HARMLESS
I understand that attendance of a dog obedience training class is not without risk to myself, members of my family or guests who may attend, or my dog, because some of the dogs to which I will be exposed may be difficult to control and may be the cause of injury even when handled with the greatest amount of care.
I hereby waive and release the Club, its employees, officers, members and agents from any and all liability of any nature, for injury or damage which I or my dog may suffer, including specifically, but without limitation, any injury or damage resulting from the action of any dog, and I expressly assume the risk of such damage or injury while attending any training session or other function of the Club, or while on the training grounds or the surrounding area thereto.
In consideration of and as inducement to the acceptance of my application for training membership by this Club, I hereby agree to indemnify and hold harmless this Club, its employees, officers, members and agents from any and all claims, or claims by any member of my family or any other person accompanying me to any training session or function of the Club, or while on the grounds or the surrounding area thereto as a result of any action by any dog, including my own.
Signature (In case of a minor a parent or legal guardian must sign.)
While such a release affords considerable protection for the instructor in case a suit is brought against him, it does not, of course, preclude the filing of a suit in the first place. The best protection would be insurance and the use of a release. How far instructors should go in trying to protect themselves would depend on how seriously they view the risk of being sued, either successfully or unsuccessfully. Personally, I feel that some form of release is the absolute minimum. In a club type situation insurance is probably unrealistic so a release becomes an absolute must. In any event, it is a good idea to consult a lawyer to find out precisely what your situation is. I would not advise anyone to use the above release without first having conferred with a lawyer to determine whether in your jurisdiction it provides the protection you want and need. If you are a member of a club there may be a lawyer in the group who can advise the club what the status of its instructors is and what should be done to protect them. It is certainly not a matter to be treated lightly since any number of things can happen during training class which can occasion a lawsuit. And it surely is better to be prepared than sorry.
©1973 J.J. Volhard