The changing status of pets

By John Lofflin, Special Assignments Editor

Some of your clients see their pets as children. Citizens in some areas have pushed for a legal change that retracts pet ownership in favor of pet guardianship. And other people say, “It’s just a dog.” Yet when conflict arises over the suffering or death of a pet, our court system has to stick to one set of rules that defines the relationship between people and animals. What’s the right definition?

Going back to the beginning, the Bible appears to establish a paradigm of dominion and stewardship in Genesis, later referring to all God’s creations at man’s feet, and implying, Biblical scholars say, both power and responsibility. And Gregory M. Dennis, JD, immediate past president of the American Veterinary Medical Law Association, notes that in medieval times legal matters involving animals were generally dealt with by ecclesiastical courts and not by secular courts. This distinction was due to all animal creatures, small and large, being considered God’s and, therefore, subject to ecclesiastical, rather than secular, authority.

For the first legal move to define animals’ status in the modern era, Dennis, and others, point to the creation in Britain of the Royal Society for the Prevention of Cruelty to Animals in 1824. By 1840, similar societies surfaced in New York City. And by 1900, animal cruelty legislation had reached California, according to David Favre in an historical overview published by the Animal Law Web Center.

The legal principles that laws and courts of this era established have been slow to change. The enduring principles:

• Animals are property.

• Plaintiffs can rarely collect for their pain and suffering at the loss of a pet.

Only in the last half of the century have pet owners collected punitive damages, and only for outrageous conduct. Yet more recent shifts in these principles suggest that big changes may be on the horizon, changes that could be important to the practice of veterinary medicine.

For example, courts have levied punitive damages, though in relatively small amounts. Some courts have acknowledged the existence of a bond between humans and animals. A few courts have heard cases in which a litigant has described himself or herself as “guardian” for the animal and sought to recover damages for an animal’s pain and suffering. To date, no state has recognized such a claim. However, bills have been introduced before Massachusetts and New York legislatures to recognize animal guardians and to allow them to sue for an animal’s pain and suffering. And many state legislatures have passed bills that allow people to create trusts to care for animals.

According to Dennis the question of whether a person can sue for their claimed emotional pain and suffering for the loss of or injury to a pet is by no means new. The first reported U.S. case happened in 1891 when a Texas court ruled that a horse owner couldn’t recover sentimental value damages for the loss of his horse. As you can see in the timeline that follows, there’s been more activity on the legal front lately. Yet Dennis and other scholars say they appreciate the major legal developments of the recent years more for what the changes portend than for their immediate legal significance. You can see the overview below:

1891: Heiligmann v. Rose.

“Texas courts at the time found for market value of the horse and that was it,” Dennis explains. The finding in this case, which supports the concept of animals as property, comes as no surprise because most animals at the time were service animals. This general notion still prevails in law today and wasn’t seriously challenged in the courts until the mid-1960s. In fact, in 1997 a Texas appellate court cited Heiligmann v. Rose to rule against pain and suffering damages in Zeid v. Pearce.

1905: Klein v. St. Louis Transit Co.

Jury verdict in favor of a dog owner was reversed. Appellate court ruled the trial judge had committed a legal error when he told the jury that in determining the owner’s damages it could also consider the amusement and pleasure the dog had given its owner. This case continued to support the common law principle that animals are property.

1934: Wilcox v. Butt’s Drug Store.

This New Mexico case of a druggist whose flawed prescription caused the death of a man’s dog again upheld the idea that an owner could not sue for sentimental value in the loss of an animal. However, the court did say market value is not a correct yardstick for damages when an animal has no market value, according to William C. Root in a 2002 Villanova Law Review examination of the legal classification of companion animals. Root notes a majority of jurisdictions have never permitted owners to recover for emotional suffering, but some have found for punitive damages for misconduct. This case signaled halting progress toward recovering “actual” value of the animal to the owner.

1964: LaPorte v. Associated Independents Inc.

This landmark Florida case provided $2,000 in compensatory and $1,000 in punitive damages for pain and suffering after a trash collector maliciously threw a garbage can and killed the plaintiff’s dog. The Florida Supreme Court, in reversing an appellate court’s decision, said, “The affection of a master for his dog is a very real thing and ... the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training such as a Seeing Eye dog or a sheepdog.”

In this case, the court distinguished malicious damage from simple negligence, saying it could not be held to the intrinsic value of the animal in a case involving such malicious destruction. The trial judge in the case had instructed the jury that the plaintiff could recover for mental suffering and the appellate court disagreed. Dennis, however, points to many later cases in which this standard did not prevail despite outrageous conduct on the part of the defendant.

1978: Knowles Animal Hospital v. Wills.

Florida District Court of Appeals upheld a jury award against an animal hospital for mental pain and suffering when a dog died after it was left on a heating pad for two hours. The court said, “The jury could ... view the negligent conduct which resulted in the burn injury suffered by the dog to have been a character amounting to great indifference to the property of the plaintiffs, such as to justify the jury award.”

1981: Campbell v. Animal Quarantine Station.

This Hawaii case hinged on whether an owner had to witness the dog’s death to recover for mental distress. On appeal of a trial court decision, the court found the owners and their four children could recover a combined $1,000 award against the state when their dog, Princess, died of heat prostration after being left in a hot government van for at least an hour after arrival at a local animal hospital. The family heard of the death of their 9-year-old female boxer by phone.

The court found medical testimony of the family’s suffering unnecessary, agreeing with the lower court that testimony concerning “the role Princess played in their daily routine” and their subsequent feelings of loss “upon hearing the news of the dog’s sudden death,” were sufficient. However, in terms of emotional distress claims, Campbell et al. is an anomaly. Dennis points to a 1993 Pennsylvania case, Miller v. Parana, in which the court decided the actions of a veterinarian who allegedly beat a plaintiff’s dog to death, “did not rise to the level of outrageousness necessary to support an award of damages.”

2000:

Tennessee is the first state, according to Root, to enact a law allowing companion animal owners emotional damages in the wrongful death of their pet. Both Root and Dennis point out the narrowness of the legislation: Damages are limited to $4,000; “pet” is defined as “a domesticated dog or cat normally maintained in or near the household;” licensed veterinarians are excluded from liability “for professional negligence;” and government employees are excluded “while acting on the behalf of public health or animal welfare.” The act is also limited to incorporated areas in counties of 75,000 people or more. Yet the law establishes damages for “reasonably expected society, companionship, love and affection of the pet.”

Other states have since followed Tennessee, passing or introducing legislation with similar purpose. For example, Illinois’ “Humane Care for Animals Act” entitles owners to punitive or exemplary damages between $500 and $25,000 for each act of abuse or neglect, plus reasonable attorney’s fees and costs, and requires veterinarians to report animal abuse.

2001:

New Jersey and Oregon pass legislation allowing the creation of trusts for animals. The New Jersey statute states, “A trust for the care of a domesticated animal is valid. The intended use of the principal or income may be enforced by any person designated for that purpose in the trust instrument, a person appointed by the court, or a trustee. The trust shall terminate when no living animal is covered by the trust or at the end of 21 years.”

In 2003, Florida and Kansas enacted similar legislation. Dennis points out that the Florida law permits a court to remove a designated trustee and allow someone asserting they have an interest in the animal’s welfare to be appointed the trustee, saying, “A person having an interest in the welfare of the animal may request the court to enforce the trust or to remove a person appointed.” The provocative question here, Dennis says, is, “Who is ‘a person having an interest in the welfare of the animal’?”

2001:

The term “guardian” is introduced in legislation in Rhode Island, signaling a move away from the idea of animals as property. The Rhode Island law, Dennis points out, makes the word “guardian” interchangeable with the word “owner;” “A guardian shall also mean a person who possesses, has title to or an interest in, harbors or has control, custody or possession of an animal and who is responsible for an animal’s safety and well-being.”

2001: Mitchell v. Heinrichs.

An Alaska court moved beyond fair market value, establishing that, “value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce.” The decision listed purchase costs, cost of immunization, neutering, comparable training or actual costs for these items, and suggested breeding potential may also be considered in establishing value. The case involved a woman who shot the plaintiff’s dog thinking it posed a threat to her livestock.

2002:

A bill was introduced in Michigan to allow non-economic damages up to $250,000 in cases of gross negligence or willful and wanton misconduct. And in 2003, legislation that would allow for emotional pain and suffering, emotional distress, or loss of companionship claims for death or injury of a pet was introduced in Colorado, New Jersey, and Rhode Island. These bills did not become law in 2003.

2002: Oberschlake v. Veterinary Associates Animal Hospital.

An Ohio appeals court rejected a dog’s pain and suffering claim brought by his owner. Though unsuccessful, this case is a significant departure in asking damages for the animal’s pain and suffering, not the owners’—a direct application of the notion of guardianship.

Sources: The Animal Law Web Center; Gregory M. Dennis, JD, immediate past president of the American Veterinary Medical Law Association; and William C. Root, “Man’s Best Friend”: Property or Family Member? An Examination Of The Legal Classification Of Companion Animals and Its Impact On Damages Recoverable For Their Wrongful Death or Injury,” Villanova Law Review, 2002.