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The law recognizes that towns can’t do it all. As a society we’ve made the judgment that the responsibility for protecting (and, hence, the risk for failing to do so) the different classes of visitors to our properties (trespassers, invitees, and business guests) best lies with the person most able to safeguard their safety – the dog’s owner. Just because a town has no obligation to act when a dog bites someone on its owner’s premises doesn’t mean that the law doesn’t provide recourse in the form of a private civil action. This would explain why over one-third of all home insurance liability claims paid out in the United States in 2012 pertained to dog bites. This $489 million covered medical costs, jury awards, judgments, and settlements.16 These statistics are used to highlight that not all matters warrant a town’s attention. Despite how vociferously one of your constituents may plead or protest, towns can’t solve everybody’s problems. Sometimes these types of issues are simply disputes between private parties that can only be resolved by the parties themselves, their attorneys, insurance agencies or the courts. Where towns come in is when there is a threat to the public’s health, safety or welfare. That’s not to say that there may not be a public health hazard merely because of where a dog bite occurred.

In all dog bite cases, there is a role for the town health officer, reflecting the state’s primary concern about the spread of rabies. A state officer that serves at the local level, the town health officer is provided very specific instructions from the Vermont Department of Health’s regulations with regard to handling all dog bites. These regulations are found in the Vermont Town Health Officer Manual (available at http://healthvermont.gov/local/tho/documents/TownHealthOfficerManual.pdf).

In relevant part, it directs that the town health officer:

1. contact the victim and the owner of the dog to investigate the incident;

2. complete the Animal Bite Report Form (included in the Town Health Officer Manual);

3. determine the dog’s rabies vaccination status; and

4. require that the dog be confined and observed for 10 days to determine whether it is healthy.

When a town health officer receives a report of a dog bite, he or she must complete a dog bite form and file it with the town clerk. While it might appear unnecessary to confine and observe a dog that has proof of current rabies vaccination, the Vermont Department of Health isn’t willing to risk your health and still requires it as a precautionary measure. According to the department’s website on rabies facts, “Dogs or cats that have been vaccinated, or show no sign of rabies, can be watched under supervision of a town health officer. If they don’t develop rabies within 10 days, you will not get rabies.”17 Though it is not always necessary to confine the alleged offending dog off-premises, it can be confined at a facility at the owner’s expense if the health officer believes the owner will not be able to confine the dog adequately. If the health officer determines that the owner of the animal will not be able to confine it on-premises for the requisite 10-day period and the owner refuses to turn the dog over to the health officer’s custody, then he or she may apply to court for issuance of a search warrant to a law enforcement officer to search the premises and seize the animal pursuant to 20 V.S.A. § 3551.

Dogs Put $489M Bite on Home Insurance Industry, ABC News (May 29, 2013), http://abcnews.go.com/Business/dogs-bite-insurance-industry-479-million/story?id=19274676.

Vermont Department of Health, Rabies Facts, available at http://healthvermont.gov/prevent/rabies/rabies_fact.aspx (last visited June 9, 2013).

VLCT Big Book of Woof, May 2014 Page 25

2. The Complaint and Proper Notice The question of whether a dog should be taken for a walk over Rainbow Bridge (humanely disposed of) most frequently arises in the context of a “vicious dog” hearing that results from receipt of a written dog bite complaint. Certain conditions must be met in order to trigger a mandated hearing in which the selectboard will sit in judgment. First, the person lodging the complaint must have been bitten off the premises of the owner or keeper of the dog. “Premises” is defined as “(a) house or building, along with its grounds” which is different from the broader term “property” which is defined as “(a)ny external thing over which the rights of possession, use, and enjoyment are exercised.”18 This distinction is important because while a car or truck is property it is not considered “premises” in the eyes of the law and therefore a hearing would still have to be held if a dog bit a person while it was confined within a person’s vehicle. Second, the complainant must have required medical attention for the attack. The complaint must include the time, date, and place where the attack took place, the name and address of the victim(s), and any other facts that could aid in the selectboard’s investigation. Selectboards should follow up with complainants when this information is incomplete and inform them that, absent the required information, the request for a hearing cannot be honored. Towns may utilize the model dog bite complaint form found in Appendix A to assist in the administration of complaints.

It should be noted that towns are only required to perform their statutorily imposed duty to investigate and control vicious dogs upon receipt of a written complaint. A town’s obligation to destroy or to even impound dogs in this regard is discretionary, not mandatory. Generally speaking, government employees are shielded from exposure to personal tort liability under the doctrine of qualified official immunity when performing discretionary acts within the scope of their authority. In addition, towns themselves are generally shielded from liability for their negligent acts, so long as those acts occur while the town is acting in its “governmental” (as opposed to proprietary) capacity. Furthermore, generally speaking, absence a duty of care, an action in negligence will fail. Here the duty of care rests with the owner or keeper of the dogs who is responsible for his or her dogs’ actions, not the town.19 Even if an individual was attacked by a dog that the town knew had a vicious disposition, an action in negligence will likely fail.

Commenting on a town’s failure to act when notified of such a propensity, the Vermont Supreme Court ruled that “Despite the statute’s general title, ‘investigation of vicious dogs,’ it deals specifically with investigation of dogs that bite rather than any general right to control dogs. In this case, defendants’ ability to exercise control over dogs exists in narrowly circumscribed conditions and is statutory, not contractual, in nature.... The town’s right to control dogs that bite does not give rise to a generalized duty to control vicious dogs.” Rubin v. Town of Poultney, 168 Vt. 624 (1998).

The selectboard’s window for action is short. It must complete its investigation and hold its hearing within seven days from receipt of the written complaint. If the complaint is incomplete, the selectboard should begin counting from the date the amended complete complaint form is returned to the town. The relatively quick turnaround most likely reflects the immediacy of addressing an ongoing potential public safety hazard because the controlling statute doesn’t give any indication that the dog suspected of being vicious has actually been impounded. The threat of another bite presumably would be prevented because this seven-day timeframe falls within the Black’s Law Dictionary (7th ed. 1999).

The elements of negligence include: 1. a duty of care; 2. breach of that duty; and 3. damages. A duty of care derives from the idea that is the party in control who is in the best position to protect against harm.

VLCT Big Book of Woof, May 2014 Page 26 ten-day quarantine period, which is the time designated by the Vermont Department of Health that the dog must be kept from any contact with all people and other animals. Of course, if the dog has already been impounded, the threat it poses to the general public is neutralized, abating the urgency to act within this narrow timeframe. The requirement that the selectboard conduct its investigation and hearing within seven days then begs the question: how much notice should be provided the dog’s owner? 20 V.S.A. § 3546(b).

The only mention of notice in this context are the words “said owner shall be provided with a written notice of the time, date and place of hearing and the facts of the complaint.” The law informs us what the notice for a vicious dog hearing must include and to whom it must be sent, but it is silent as to when it must be provided. This is one of those areas of the law that the legislature tells you what you must do and when to do it, but omits the detailed steps of how you actually do it. That’s where we as attorneys come in, balance the rights and interests at play, take into consideration past case law, look at how other hearings are conducted, and provide guidance to help you fill in the gaps to avoid being sued. Knowing that the selectboard must conduct its investigation and hold a hearing “within seven days from receipt of the complaint” we can deduce that the notice which precedes the hearing falls within a seven-day timeframe. But how much notice is enough? One day? Two days? Seven? This is a question of first impression, meaning that it hasn’t been resolved by the Vermont Supreme Court. Until this question is fully litigated, we can’t provide you with an answer that we’re 100 percent confident in. However, certainly the more notice, the better – which means that processing the complaint will need to be handled quickly in order for a hearing date to be set and notice delivered as soon as possible. (A Model Notice to Owner of Vicious Dog Hearing and Response to Vicious Dog Complaint can found in Appendices D and B, respectively.) It shouldn’t go without notice that the legislature contemplated instances when no notice would be provided. “If the owner of the domestic pet or wolf-hybrid which is the subject of the complaint can be ascertained with due diligence, said owner shall be provided with a written notice of the time, date and place of hearing and the facts of the complaint.” 20 V.S.A. § 3546(b), emphasis added. If your animal control ordinance specifies a period of time for providing notice that is greater than the seven days the law provides for holding its hearing, it should be followed. The rationale behind this approach is that it is more important to be mindful of the dog owner’s due process rights than strict compliance with a statutory deadline lacking an enforcement mechanism.20 Because 20 V.S.A. § 3546 does not provide a negative consequence for failure to comply with the time requirements set forth therein, the legislature intended it to be directory rather than mandatory. And since the due process rights of the owner are given greater protection when more notice is provided, towns shouldn’t feel beholden to this seven-day timeframe. Still, if you can’t hold the hearing within this seven-day timeframe we would recommend that you, at the very least, warn it within this timeframe counting the seven days from the date of receipt of the complaint.

As for delivery, we recommend sending the notice via certified mail, return receipt requested, which is the best method for guaranteeing delivery and obtaining documented proof of receipt.

The person setting all this in motion (the complainant) should also be notified of the hearing’s time and date, despite the lack of a requirement in the law. His or her attendance will help In the case of In re Mullestein the Vermont Supreme Court held that a statutory time period such as that for holding a vicious dog hearing is not mandatory “unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.” 148 Vt. 170, at 173-74 (1987).

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