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RESOLVING CONFUSION IN PET OWNER TORT CASES: RECOGNIZING PETS' ANTHROPOMORPHIC QUALITIES UNDER A PROPERTY CLASSIFICATION
Lynn A. Epstein [FNa1]
Copyright (c) 2001 Board of Trustees of Southern Illinois University; Lynn A. Epstein
Over the years, animals have become valued members in our society. The most valued are those animals that have achieved the status of pets, or non-human companions. Pets are an integral part of their owners' lives. There are 61 million pet-owning households in the United States. [FN1] Owners accentuate their pets' anthropomorphic qualities. Owners celebrate their pets' birthdays, complete with parties at dog eateries. Lavish sums are spent to entertain pets at day care facilities and pet spas. Municipalities dedicate pet parks. Pets are even buried in their very own cemeteries. Indeed, in a recent survey, fifty-four percent of pet owners stated that if stranded on a deserted island they would choose a pet as a companion, while forty-six percent stated they would prefer a human companion. [FN2]
Balanced against this anthropomorphic trend is the state of the existing law, which continues to classify animals as property in all jurisdictions. [FN3] However, as humans elevate the status of their pets in their daily lives to human levels, the injury or loss of such an exalted "family member" may result in dissatisfaction with the measure of damages afforded in the prototypical property damage scenario. Grieving pet owners provide modern-day courts with a new struggle in applying the age-old property classification assigned to animals while removing the blindfold from Lady Justice to see that perhaps in these special cases more human-like damage awards should be afforded to pet owners for the harm done to their vital companion. In the midst of this dilemma, some courts fashion a damage award that exceeds the historical "market value" measure. These courts creatively employ a variety, and in some instances, a hybrid, of damage analyses to justify the ratcheted award. [FN4] This patchwork approach has led to misapplications of damage award theories, lack of reconcilable precedent and confusion among the practicing bar. Consequently, there appears no dearth of inconsistent case precedent on the subject.
In Part I, this article culls the historical, psychological, and scientific rationale supporting the important role domesticated pets play in humans' lives. Part II of the article proceeds to examine the varied successful and not-so-successful claims courts could consider in pet injury or loss actions. Part III provides a meaningful and uniform suggestion that will enable courts to standardize an owner's pet loss claim. Courts should continue to classify pets as property, yet relax the classification standard to permit a flexible market value analysis that includes the right to assert a punitive damage claim as a means of providing adequate and fair recompense to the grieving pet owner.
I. THE IMPORTANT ROLE OF PETS
People have treasured their pet animals since ancient times. For example, Egyptians regarded dogs with reverence as an assistant and protector. [FN5] They conducted burial ceremonies where their esteemed companions were embalmed and entombed in specially constructed chambers and temples. [FN6]
Centuries later, despite this regal history, courts and state legislative bodies struggle with the classification of domesticated animals, and with assessment of the degree of protection such important companions deserve. The first distinction most legislation draws upon is the dichotomy between domestic and wild. [FN7] One such example classifies an animal as domestic if it is tamed, associated with family life, or accustomed to live in or near the habitations of man. [FN8] In some instances, courts have added a provision providing that an animal is to be considered domestic if it has been "domesticated by man for centuries." [FN9] However, this classification of animals as domestic or wild is not uniform. For example, there is a major split among jurisdictions as to whether ferrets are classified as domestic or wild. [FN10] Deer have been treated as both domestic and wild animals by the Wisconsin court. [FN11] Even dogs, despite their centuries-old human connection, have been labeled as not rising to the level of a domestic animal. [FN12]
The wild-versus-domestic classification is integral in determining an owner's liability for injury caused by his pet to others. Typically, courts will determine that an owner who harbors a wild animal is strictly liable for injuries caused to others by the animal. [FN13] Yet, in cases where a domestic animal causes injury to others, a defense exists where it is shown the owner had no prior knowledge of the animal's dangerous propensities. [FN14] Most states codify this defense as the "one free bite" rule. [FN15] If it is proven the dog has not bitten before, the owner may be relieved of responsibility because the dog has not previously demonstrated a dangerous propensity. [FN16]
The wild-versus-domestic test also serves as the basis for state anti-cruelty statutes. Most pet anti-cruelty statutes use the "domestic" term to define a protected class of animal to be afforded the highest protection under the law. [FN17] However, even as courts differ in the distinction, anti-cruelty statutes also vary in classification. For example, South Dakota uses a broad brush when defining "domestic" to include "any animal with a long association with man," [FN18] while Pennsylvania legislation defines domestic as including "any dog, cat, equine animal, bovine animal, sheep goat, or porcine animal." [FN19]
As a review of applicable case and state law would indicate, neither courts nor state legislatures seem to be able to announce a consistent and uniform definition for the "domesticated" animal. Even so, once an animal acquires the "domesticated" moniker, state statutes typically grant it greater protection under the law in the form of anti-cruelty statutes and a majority of the reported court decisions would provide the "domesticated" animal owner freedom from liability unless it is proven the animal has previously injured another. Thus, while the law is inconsistent regarding the classification of animals as domesticated, the legal protection associated with such status is nearly uniform.
As opposed to the overly solicitous concern for divining differences among domestic and wild animals, most courts review an owner's pet injury or loss action by paying little attention to the wild-versus-domestic inquiry. Instead, in the animal injury or loss line of cases, courts circumvent the distinction and classify the animal as property. [FN20] Once classified as property, pet owners are typically restricted to the fair market value of their pets as damages resulting from a tortious injury to their pets. [FN21] As the wild- versus-domestic distinction evolved over time, the animal as a material belonging, a chattel or property, is also based on historical perspective. Dating back to the Great Chain of Being, [FN22] animals were provided property status based on the recognized hierarchy of creation. [FN23] Within this hierarchy, animals were located somewhere between plants and humans. [FN24] Under this system, animals could never achieve human status because they could not record rational thought. [FN25] Roman law also followed this view, providing that animals were property and only men who were not slaves were "persons." [FN26] The Bible also supports the theory that humans are atop the hierarchy and are to control the universe. [FN27]
Science buttresses the ancient theory. While scientists have determined that the DNA of certain animals and humans may have a ninety percent match or agreement with each other, [FN28] most conclude that humans are the only animals that exhibit consciousness, real intelligence, and higher mental abilities. [FN29] Most scientific analysis focuses on whether animals hold a sense of consciousness. [FN30] Consciousness can be defined by focusing on a tripartite test, which determines the nature and extent of language, self- awareness, and "theory of the mind." [FN31] Pets appear to fail this test. For example, while dogs may exhibit receptive language ability, they do not have productive language ability (i.e. the ability to understand a language and produce it). [FN32]
Although research has identified objective differences between human characteristics and those of their pets, science has also proven animals can imbue humans with tremendous psychological benefit. Studies indicate that pet owners tend to lead healthier and, therefore, longer lives. [FN33] Pet owners are more satisfied with their lives than non-owners. Researchers support these conclusions by finding that pets serve as natural stress reducers. Indeed, these health benefits can be measured objectively in documented cases where pets have been shown to actually lower their owners' blood pressure. [FN34] An institutionalized person who is allowed to care for a pet can become more alert, involved, and sociable as a result of the interaction. [FN35] Animals also provide invaluable services to humans, such as guide, Seeing Eye, watch and/or working dogs.
It is this unconditional love and psychological effect that has proven more compelling than physiology or history, elevating the status of pets from menial, to animals worthy of human emotion, and real human grievance. As a result, the court of public opinion has elevated the pets' status to that of human family member. As humans tend to rely more often on animals for companionship, the demand has surged for courts and legislatures to grant these pet family members legal rights, previously reserved for humans. Some courts seem to be following the humanization of animal trend. As courts strive to compensate owners for pet injury or loss, they are allowing claims that were previously restricted from recovery in property damage respects, once having been solely reserved for human personal injury claim.
II. FAIR MARKET VALUE AND BEYOND: THE MYRIAD OF CLAIMS COURTS CONSIDER
IN PET OWNER CASES
In most instances, courts classify animals as chattel or property. Thus pigeonholed, the pet owners' damage claims have been restricted to the fair market value measure of damages, even when the damage claim relates to the pet's wrongful injury or death. In three basic manners, some courts have departed from the traditional model, allowing for moderate adjustments to the judgment award. First, courts have sidestepped fair market value in favor of a value to the owner standard. [FN36] Second, courts have permitted damage claims premised on emotional distress suffered by the owner when the owner's complaint alleges negligent infliction of emotional distress or intentional infliction of emotional distress. [FN37] Third, courts have sustained pet owners' punitive damage claims. [FN38] In some cases, these claims have been combined to achieve a maximum recovery for the grieving pet owner.
A. Fair Market Value
In most jurisdictions when a pet has been killed, a pet owner's recovery is limited to the fair market value of the animal. Fair market value must be computed at the time of the pet's death. [FN39] Although most pets hold little or no material market value (as opposed to inadmissible intrinsic emotional value), some courts do permit recovery based on testimony showing the value of the pet to its owner. [FN40] Exactly which factors are admissible to determine a pet's value to the owner vary among jurisdictions. The metamorphosis of value to the owner's claim, over time, has resulted in the crafting of a more lenient damage recovery.
The genesis to this hybrid damage award might be traced back to 1934, when Wilcox's King Charles Spaniel died as a result of strychnine poisoning. [FN41] Wilcox alleged that Butt's Drug Store supplied the deadly medicine. [FN42] The trial court agreed and assessed one hundred fifty dollars in damages against the drug store. [FN43] Butt's Drug Store appealed, asserting the pet's worth to be only ten dollars, the pet's fair market value. [FN44] The Supreme Court of New Mexico affirmed, holding the damages were properly allowed to include not only the pet's fair market value, but also the pet's added value to the owner. Thus, the fact finder could take into account the dog's qualities, characteristics, and pedigree. [FN45] Wilcox's King Charles Spaniel was admittedly well bred and had won best in his breed in a dog show. [FN46] The court concluded these factors could be included in assessing the total damage award. [FN47] Nonetheless, the court opined that neither sentimental nor fanciful value could ever be considered when assessing such a special damage award. [FN48]
Sixty years after Wilcox, an Ohio appellate court reasoned that a fact finder could consider sentimental value and loss of companionship when gauging the pet's actual value to the owner. In McDonald v. Ohio State University Veterinary Hospital, veterinary malpractice left McDonald's pet dog paralyzed. [FN49] Laboring over the nature of the special damages to be awarded in such an instance, the court mirrored Wilcox in announcing that sentimental value must not be considered. [FN50] Yet, the court traversed past Wilcox in writing that practicality would require that in every pet loss or injury claim, the unique qualities of an animal must necessarily involve evidence showing just how the animal was personally suited to the owner. [FN51]
An Illinois appellate court was not as delicate in Janofski v. Preiser Animal Hospital, [FN52] another veterinary malpractice litigation, when it agreed that the actual value to the pet owner might be based on "some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages." [FN53] These decisions appear to advance the underlying policy that a pet owner's damage recovery ought to be expanded beyond the staid market value measure, as the aged formula was certainly insufficient recompense for the grieving pet owner.
B. Emotional Distress
Other courts that followed this precedent seemed to expand the theory of damage recovery to even greater limits, reasoning the actual value theory, in application, was unduly limiting to the grieving pet owner. In order to expand the pet owner's damage awards further, courts approved the expansion of common law emotional distress theories of liability recovery to include the grieving pet owner's claim. This movement met with judicial sanction because mental distress claims are not typically assessed in property damage loss claims. [FN54] Litigants injected emotional distress claims into pet loss or injury litigation in a twofold manner: as evidence proffered to support the fair market value theory of liability, and as facts supporting an independent cause of action for emotional distress. This movement flew in the face of another trend throughout the country which was to exercise judicial restraint in restricting emotional distress claims premised on the policy concerns that such claims rested on speculative or illegitimate testimony. [FN55]
Under this trend, the claimant/owner would proffer sufficient evidence to entitle a jury instruction that mental distress suffered by the owner must be considered as an element of the pet's value to the owner. Despite the majority of courts' inclination to reject damages for emotional distress experienced after an inanimate property loss, many of these same courts appear more willing to allow the claim in pet injury or loss litigation, particularly where the evidence adduced at trial indicates that at the time of the injury or loss the pet had a very limited or no actual fair market value. Perhaps these courts also reason that without permitting such emotional distress testimony, the grieving pet owner's claim would be dismissed or recovery would be limited to an inexcusably nominal sum. For example, a Florida appellate court affirmed a $13,000 award to the plaintiff pet owners when the trial evidence indicated the defendant animal hospital was negligent by leaving the plaintiffs' dog on a heating pad. [FN56] The dog had to be euthanized, partly as a result of the burns it suffered due to the animal hospital's negligence. [FN57] The reviewing court approved the trial judge's decision to permit testimony of the pet owners' pain and suffering. [FN58] Clearly, but for this pain and suffering testimony, the plaintiffs' theory of damages would have been limited to the more traditional fair market value range, meaning the monetary sum awarded would have been significantly lower.
Weighed against this lenient trend is a collection of legal decisions indicating that courts may not be as willing to permit mental distress testimony in the calculus of the fair market value model when the subject animal has significant extrinsic worth. For example in Fackler v. Genetzky, [FN59] the Facklers, owners of two very successful racehorses, sued Genetzky, a large animal veterinarian. [FN60] The racehorses, named Indian Magic and Patricia Gold, both died after they received care from Genetzky. [FN61] The Facklers presented evidence to the lower court that demonstrated a connection between their horses' deaths and treatment by Genetzky. [FN62] They also presented evidence that Indian Magic and Patricia Gold were worth $279,710 and $850,000, respectively. [FN63] In addition to recovery for these large extrinsic amounts, the Facklers sought recovery for emotional distress, advancing testimony that their son was extremely close to the horses, and that the family cared deeply for the horses. [FN64] The appellate court rejected the Facklers' emotional distress claims. [FN65] The court reasoned that animals are personal property, and that it would not recognize an emotion distress claim for property, even though people may develop an emotional attachment to the property, whether animate (i.e., animal) or inanimate. [FN66] Clearly, the Nebraska Supreme Court followed the majority rule when it rejected the Fecklers' emotional distress claim. Nevertheless, the court most likely received comfort in the fact that the Facklers' "pets" held considerable value, which it permitted as an allowable damage recovery element.
Though reported emotional distress cases that include a fair market value damage analysis may be rare, pet owners are uniformly unsuccessful when they attempt to allege a separate emotional distress damage claim under a negligent infliction of emotional distress bystander theory. In these rare instances, the litigants typically sought to couch recovery on the witness of their pet's injury or death. These attempts always came up against the prevailing law's stringent requirements for recovery under negligent infliction of emotional distress. To recover in most jurisdictions, claimants must prove they were near the scene of the accident, they experienced trauma directly resulting from the witness of the accident, and they were closely related to the accident victims. [FN67]
It can be seen there are significant, if not barely insurmountable, hurdles a claimant must overcome when pursuing a negligent infliction of emotional distress pet injury or loss theory of liability. The first hurdle is possibly the most insurmountable in that emotional distress claimants must focus attention on the witness of an injury to a third person, not a pet. Next, even if the claimant were to convince the court to make the quantum leap to classify a pet as a third "person," that claimant must then wade the quicksand laid by decisions that require the claimant's relationship to the injured third party be viewed as a sufficiently close relationship, as that indicative of one family member to another. [FN68] Hence, while some sympathizing judges may recognize that owners witnessing harm to their pets could result in distress phenomena, and perhaps even manifest a connected physical injury, most courts would draw the line at providing judicial imprimatur to a claimant's argument that the lost relationship was that akin to the loss of a family member. [FN69]
Despite nearly insurmountable standards of proof for negligent infliction of emotional distress claims, there are some courts that relax standards of proof for claims of intentional infliction of emotional distress. Under the Restatement (Second) of Torts, an intentional infliction of emotional distress claim exists where evidence shows that the tortfeasor's extreme and outrageous conduct caused plaintiff severe emotional distress. [FN70] However, when a third-party bystander seeks recovery for intentional infliction of emotional distress, the requirements are more stringent. Under the Restatement (Second) of Torts, a third-party bystander may only state an intentional distress claim where the claimant was actually present at the time of the conduct and where the claimant is a member of the victim's family, unless the claimant suffers bodily harm. [FN71] Hence, under a bystander theory of recovery, both claims for intentional infliction of emotional distress and negligent infliction of emotional distress require the reviewing court to determine the victim of the outrageous conduct indeed belonged to the claimant's family.
Judicial attention to the "outrageousness of the conduct" element in an intentional infliction of emotional distress claim may provide greater opportunity for ultimate success to the pet owner claimant than attempts to recover for damage within the negligent infliction of emotional distress spectrum. In Gill v. Brown, Gill sued Brown who allegedly shot and killed Gill's donkey. [FN72] Gill based his recovery on claims for property damage and for damages arising out of his emotional distress over his dead donkey. [FN73] The court disallowed Gill's mental distress testimony as related to the claimant's requirement to prove up the donkey's market value. [FN74] Yet, the court allowed Gill's independent intentional infliction of emotional distress claim and permitted the corollary mental distress testimony, reasoning that Brown's actions in negligently and recklessly shooting Gill's beloved pet donkey had caused the family extreme mental anguish, which should be considered by the fact finder in assessing damages. [FN75] The court, in quoting from subpart (1) of section 46 of the Restatement (Second) of Torts, accentuated the "outrageousness of the conduct" element yet overlooked the undisputed fact that Brown's outrageousness was directed squarely at the donkey and not at its owners, the Gills. [FN76] The court ignored subpart (2) of section 46, which would have properly focused inquiry on identification of the subject of the outrageous conduct as necessarily affecting a third party. In this instance, the Gills, who were considered a third party, did not allege or show Brown had directed his outrageous conduct toward them.
In a similar vein, a reported Alaska decision legitimized a pet owner's cause of action for intentional infliction of emotional distress so long as the tortfeasor's conduct was "especially distressing in egregious situations." [FN77] In that case, the Fairbanks North Star Animal Shelter mistakenly killed the Richardsons' pet dog. [FN78] The trial court limited the Richardsons' recovery to the pet's fair market value. [FN79] On appeal, however, the reviewing court held the Richardsons may state a claim for intentional infliction of emotional distress, if the trial court determines that they have met the threshold requirements as set out in the Restatement (Second) of Torts. [FN80] However, although recognizing a claim for intentional infliction of emotional distress, the appellate court ultimately upheld the trial court's determination that the Shelter's conduct did not meet the threshold pleading standard. [FN81] Perhaps borrowing from Gill's rationale, this opinion also relied upon section 46 (1) of the Restatement (Second) of Torts, yet overlooked subpart (2), which mandates the tortfeasor's conduct be directed toward the plaintiff, not his pet.
Quite expectedly, courts that do consider subpart (2) of section 46 of the Restatement (Second) of Torts have resoundingly rejected pet owners' intentional infliction of emotional distress claims, especially when leveled against malpracticing veterinarians. Daughen v. Fox [FN82] is representative. In that case, the pet owner claimants sued their veterinarian based on a mistaken radiology report reading that led to improper treatment and, ultimately, their dog's death. [FN83] The lower court dismissed the owner's intentional infliction of emotional distress claim and held the veterinarian's actions did not rise to the level of outrageousness necessary to clear the section 46 (1) proof hurdle. [FN84] Additionally, the court determined the veterinarian's actions could not clear the bar imposed by section 46 (2) in that the veterinarian's actions were, by necessity, directed to the dog, not the plaintiff. [FN85] The appellate court affirmed the trial court in all parts.
This trend continued in Miller v. Peraino, [FN86] an opinion employing even stronger language to affirm dismissal of an owner's intentional infliction of emotional distress claim for pet loss. Though the facts in Miller comprised an even stronger case for professional malpractice, the absence of a subpart (2) relationship doomed the claimant's prospects. The Millers took their pet dog to the veterinarian for oral surgery. [FN87] The Millers relied on trial testimony by two of the veterinarian's assistants to set forth testimony that their dog died from a beating by the veterinarian. [FN88] Allegedly, the veterinarian acted out of frustration when the dog acted to prevent others from moving him from the recovery room to the waiting area where he was to be picked up by the Millers. [FN89] The veterinarian told the Millers their dog had died as a result of suffering a heart attack. [FN90] Rejecting plaintiffs' theory of liability, the court chose to focus on the relationship required under section 46 (2), meaning that the third-party dog must be a family member and not merely property. [FN91] The court went even further, however, and relying on Daughen, stated that it would permit no claim for intentional infliction of emotional distress for a veterinarian's behavior toward a dog. [FN92]
The broad-brush application manner in which Daughen seems to have been applied is, at best, perplexing. The intentional striking of a dog certainly goes beyond the reasonable and ordinary care afforded by a veterinarian and the conduct appears patently "outrageous." Principles of judicial restraint would appear to have guided the Miller tribunal to restrict its rationale to subpart (2)'s precept, which mandates proof of a family relationship, and once established, rejection of the underlying claim on the basis that even though beloved, the murdered dog was not a family member. Why the court issued a proclamation offering to protect a heretofore-unforeseen class of animal-cidal veterinarians is perhaps an unsolved legal conundrum.
Nevertheless, claims against veterinarians should be viewed as special damage cases. Reported decisions indicate that judges appear to strike a balance between treating veterinarians similar to physicians, sharing the same pedestal as their human physician counterparts, yet giving them far greater latitude in the assessment of civil liability based on the unique challenges inherent to their chosen careers. [FN93] Animals cannot communicate in the precise manner that humans can. Treatment options are gauged in varying manners. A pet owner may demand a wide variety of treatments for her sick pet, from life saving (e.g., kidney transplant(s)) to life ending (e.g., pet euthanasia as a manner of convenience to the owner the owner cannot be inconvenienced to provide the special care necessary to sustain a sick pet's life).
Thus, it is difficult to articulate a standard of care for veterinarians that could, in any reasonable manner, parallel that expected of a medical doctor. At bottom, because veterinarians, like the general human populous, are subject to animal cruelty laws, they must answer to local prosecutorial authorities in instances where it is demonstrated that they have intentionally and cruelly hurt an animal. In review, the veterinarian malpractice line of case authority evidencing the judiciary's reluctance to hold these professionals responsible for damages beyond the pet's fair market value would appear to be the trend.
C. Punitive Damages
Courts have allowed pet owners to recover punitive damages where evidence is alleged, proffered and proven that the tortfeasor engaged in willful, wanton, and reckless behavior causing the pet's injury or loss. [FN94] Because certain elements overlap, some practitioners may confuse the proof elements to sustain punitive damages with the pleading elements necessary to state a claim for intentional infliction of emotional distress. Despite these similarities, the focus on a punitive damage claim must differ from that adjudicated the claimant's intentional infliction of emotional distress claim. Under the Restatement (Second) of Torts, claims for intentional infliction of emotional distress carry announced parameters that encompass conduct directed at humans or their families. [FN95] These claims, therefore, focus on the effect the outrageous conduct has on the person. The punitive damage analysis carries no such focus. Punitive damages, to be proven, must focus the court's attention on the tortfeasor's conduct, not upon how the conduct effects the claimant (i.e., the recipient). [FN96] Hence, the decision to permit a fact finder to assess the claimant's request for punitive damages should not require an analysis of the mental distress the pet owner suffered. Indeed, even if such testimony were held inadmissible, a claim for punitive damages could proceed to judgment.
Courts are typically uniform in their approval of punitive damage awards when it is successfully proven that the conduct of the defendant was particularly heinous, resulting in the pet's injury or death. In LaPorte v. Associated Indeps., Ms. La Porte's pet dog died when a refuse collector employed by Associated Independents threw a garbage can at the animal. [FN97] The trial court approved La Porte's punitive damage claim. [FN98] On appeal, a Florida appellate court affirmed, holding the particularly heinous conduct of the garbage collector justified assessing such extraordinary damages. [FN99] At trial, La Porte adduced testimony indicating Associated Independents' sanitation engineer had intended to throw La Porte's garbage can at her pet dog. [FN100] Ms. La Porte witnessed the entire event and testified that after her dog was struck, the collector laughed when the animal was heard to yelp in pain. [FN101] The trial court determined these facts indicated it was "obvious" that the garbage collector's conduct had been malicious, and that he had demonstrated an extreme indifference to La Porte's rights. [FN102] The court upheld a $1000 punitive damage award. [FN103]
Throughout the country, both judges and legislators are heralding tort reform that raises the pleading and proof standard necessary to state a punitive damage claim. [FN104] When the underlying facts demonstrate an entitlement to the special award, its applicability to recovery for malicious actions causing pet injury or loss is particularly appropriate. This observation is, indeed, supported by the paternal comments found in Levine v. Knowles, [FN105] where the justice writing for the majority indicated that punitive damages are especially desired in cases where compensatory damages are too lenient for admonitory purposes. [FN106] Weighed against the limited damages that typically result from application of the fair market value approach, the compensatory damages that typically result in a pet injury or loss action may be totally inadequate to sufficiently deter such malicious conduct in the future.
III. STANDARDIZING CLAIMS FOR PET OWNERS
A. Value to Owner and Punitive Damages
In light of the irreconcilable pet injury or loss damage precedent, close attention ought to be given to the adoption of a more uniform approach wherein courts would consider standardized claims that, in appropriate instances, serve to compensate pet owners for the special bond they have established with their pet. To assure uniformity in this approach, courts should continue to classify the pet as property; [FN107] this status truly is the best and fairest classification for non-human animals in that it will meet with uniform approval throughout our society. [FN108] Even though relegating pets to property status, pet owners must still be permitted recovery for the intrinsic value of their injured pet. This policy must permit the fact finder to fairly analyze the loss of the pet's companionship to the owner. Additionally, where applicable pleading and proof standards are met, courts should permit claims for punitive damages. [FN109]
Permitting a loss of companionship component to attach to a pet injury or loss compensatory damage claim should be more reconcilable with past precedent than with the patchwork of cases that dance about the head of the emotional distress (whether negligent or intentional genre) pin. Recovery for mental distress as an element of fair market value has proved elusive and unsuccessful, perhaps because permitting the grieving pet owner's testimony clouds the otherwise objective standard, and cannot inject relevant testimony in the context of an otherwise objective property market value analysis. Courts should refocus on the lost companionship between pet and owner, as a more objective valuation. While the difference between emotional distress (negligent or intentional) claims as an intrinsic value to owner standard, and that of assessment of the resultant lost companionship approach as an intrinsic value, might at first blush appear subtle, in application they are quite distinct. Emotional distress testimony is necessarily reactionary to an event, focusing the fact finder's attention on the manner of the pet's injury or death, while companionship testimony must focus inquiry on the interrupted owner/pet relationship, and therefore the lost value of that relationship. While elements of the two claims may overlap, there is much more potential for abuse and irreconcilable judicial opinions in the emotional distress class than in the property damage loss of companionship grouping. Sustaining companionship as an element of value will permit the fact finder to focus on the bond between the owner and her pet, as courts often do in opinion dicta. Domesticated pets and the companionship they offer their owners are synonymous terms, unlike the dispassion a fair market value analysis offers to the owner of the injured pet. Yet, because pets must retain their property status, testimony of the value that the pet offered to its owner must similarly be allowed as relevant inquiry. In turn, this would permit the fact finder to consider not only the special qualities and usefulness of the pet to the owner, but also the loss of companionship the owner suffered, because companionship is obviously a special quality to be found in every pet. [FN110]
Loss of companionship claims must not, however, become a pet owner's windfall. Courts should demand to hear testimony as to the companionship value of a particular pet. For example, factors the court may consider would include length of time the pet has been with the owner. Courts should be skeptical of testimony attempting to illustrate such companionship bond wherethe pet spent little time with the claimant. Gluckman v. American Airlines [FN111] (pet dog resided with its owner for merely one month) and Stawser v. Wright [FN112] (pet owner claimed emotional distress after owning his puppy for three weeks) are representative of the abusive claims that should be closely monitored. Courts should also require testimony as to the quality of the time spent together, examples of the important role the pet played in the owner's life, and the "uniqueness" of that relationship. To permit the fact finder to use the market value analysis may not allow sufficient compensation for the pet owner.
In addition to the intrinsic value of the pet to the owner, courts should award punitive damages where the conduct of the defendant is particularly heinous. The purpose of awarding punitive damages is to compensate victims for losses that standard compensatory damages do not cover, to act as punishment for bad acts, and to supplement the deterrent functions of both tort and criminal law. [FN113] Awarding punitive damages to pet owners for malicious acts toward their pets accomplishes these objectives.
Critics of awarding punitive damages to pet owners may argue that the criminal justice system is the proper arena to punish those individuals who maliciously kill pets. [FN114] However, the purpose and function of the tort and criminal system address different concerns. While allowing a claim for punitive damages and prosecuting for animal abuse will both accomplish a deterrence effect, the punitive damage claim will serve to fully compensate the plaintiff for the resultant malicious act. Because our legal system frequently provides criminal penalties and civil remedies, animal abuse cases should be no different. Providing a strong deterrence under both systems would adequately protect pets.
B. Reconciling Two Extreme Case Outcomes under Standardized Claims: Gluckman and Campbell
By standardizing claims for pet owners to a "value-to-owner" standard and allowing punitive damages, cases that represent extreme outcomes may become more uniform. Gluckman [FN115] and Campbell v. Animal Quarantine Station [FN116] are two representative examples that vary in the claims allowed, and in the results obtained. In Gluckman, Andrew Gluckman sued American Airlines seeking recovery for his dog Floyd's death resulting from heat stroke. [FN117] Airline baggage handlers had placed Floyd in the plane's luggage compartment where the animal died after the compartment reached temperatures of one hundred forty degrees Fahrenheit during the flight. [FN118] Gluckman sought both compensatory and punitive damages, loss of companionship, negligent and intentional infliction of emotional distress, as well as assertion of a claim for Floyd's pain and suffering. [FN119]
The trial court rejected most of these efforts and determined there was no claim for negligent infliction of emotional distress because New York law would not sustain recovery for emotional distress as a measure of damages for property. [FN120] The court dismissed the intentional infliction of emotional distress claim, holding the airline's conduct was not intentionally directed at Gluckman. [FN121] The court also dismissed the loss of companionship claim, stating the law would not permit Gluckman to sue under an independent loss of companionship claim. [FN122] The court also apparently dismissed Gluckman's punitive damage without comment. [FN123] Essentially then, the only issue left for the court was the contractual limitation of liability for property set forth in the air ticket of $1200. [FN124]
Conversely, the Campbells sued the Animal Quarantine Station after Princess, their pet dog, suffered and died as a result of prolonged heat prostration. [FN125] Trial testimony indicated that Princess had been transported in a van for at least an hour with no ventilation, and that she had been directly exposed to the sun. [FN126] The trial court permitted Campbell's damage claim for the loss of their dog and also permitted recovery for negligent infliction of emotional distress. [FN127] The court permitted the claim, despite the fact that the Campbells neither witnessed their dog's death nor viewed the deceased body. [FN128] In fact, they heard the news over the telephone. [FN129] Additionally, the court held medical testimony as to the distress suffered by the Campbells was unnecessary, and that the Campbells testimony as to their relationship with the dog was sufficient. [FN130] The court relied on prior Hawaii precedent that had permitted recovery for mental distress due to destruction of property. [FN131]
Gluckman and Campbell appear to address similar factual scenarios, yet they resulted in dissimilar outcomes. While prior destruction of property precedent played a deciding role in each case, the opinions' differences perhaps warranted the varied results. Andrew Gluckman owned his dog Floyd for one month prior to the dog's death. [FN132] The Campbells owned their dog for nine years, from the time it was a puppy. [FN133] Thus, the Campbell's emotional attachment was undoubtedly greater than Mr. Gluckman's. Further, in Gluckman, even though the airlines conceded negligence, the court seemed to struggle with reconciling Gluckman's claim that he wasn't informed the dog was to be treated as baggage, even though he paid to have the dog placed in the luggage compartment of the plane. [FN134] In Campbell, the dog was specifically transported by a van exclusively used for animal transport. [FN135] Thus, the degree of negligence appears more exacting.
Despite these factual differences, both cases could be reconciled if courts allowed recovery under a "value to owner" standard encompassing loss of companionship and recovery for punitive damages. The Gluckman court hinted that although loss of companionship could not be a separate cause of action, it might survive as an element of market value under compensatory damages. [FN136] The Campbell court did not address loss of companionship specifically, but it certainly evaluated the loss when allowing recovery for emotional distress. In essence, by looking at the relationship for the emotional distress claim, the Campbell court looked to the same factors it would consider for a loss of companionship claim.
Both Gluckman and Campbell sidestepped the issue of punitive damages. Although mentioned as a claim in Gluckman, the court chose not to discuss its ramifications; in essence, it lumped the damage claim with the intentional infliction of emotional distress claim, perhaps obviated the need to pursue a punitive damage claim.
If both courts would have permitted a loss of companionship and a punitive damage claim, the results may have been the same, but supported by a standardized application of the law. Gluckman probably would not have a strong loss of companionship claim, given the length of time he owned the dog, while the Campbells would have a strong claim, considering the long and continuous relationship with their pet. Both cases may have sustained a punitive damages claim, resulting in a greater recovery for both plaintiffs. More importantly, a punitive damages award would seek to punish and deter both defendants for their heinous treatment of these animals, for which they assumed a duty in transporting.
Pets occupy an important role in our society. As such, courts need to allow owners specific avenues of recovery to fully compensate them for injuries to their pets. While animals should not be exalted to the legal status of humans, courts should loosen the strict property analysis when owners seek to recover damages based on the injury or killing of their pet. The fair market value standard should give way to the value to the owner standard, allowing the owner to claim loss of companionship as an element of damages. Additionally, courts should permit recovery for punitive damages in cases of heinous abuse to pets. The combination of a relaxed fair market standard in allowing loss of companionship claims and allowing punitive damages will serve to protect and promote the bond between pet and owner.
[FNa1]. Associate Professor of Law, Nova Southeastern University, Shepard Broad Law Center.
[FN1]. Richard Willing, Under Law, Pets are Becoming Almost Human, USA Today, Sept. 13, 2000, at 1A.
[FN2]. American Animal Hospital Association, Move Over Cindy Crawford-Fido Has More Clout, at http:// www.cyberpet.com/cyberdog/articles/general/crawford.htm (last visited Oct. 7, 2001).
[FN3]. Thomas G. Kelch, Toward a Non-Property Status for Animals, 6 N.Y.U. ENVTL. L.J. 531, 537 (1998).
[FN4]. See LaPorte v. Associated Indeps., Inc., 163 So. 2d 267 (Fla. 1964) (allowing recovery for mental distress and sentimental value); Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. Civ. Ct. 1980) (allowing recovery for loss of companionship); Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981) (allowing recovery for emotional distress).
[FN5]. Missouri ex rel. Kroger Co. v. Craig, 329 S.W.2d 804, 808 (Mo. Ct. App. 1959). The Kroger court went to great lengths to discuss the history of dogs as companions to humans.
[FN7]. Pamela D. Frasch, Animal L. 43 (2000).
[FN8]. 4 AM. JUR. 2d Animals § 2 (1995).
[FN9]. Marsh v. Snyder, 113 So. 2d 5,7 (La. Ct. App. 1959).
[FN10]. David. L. Herman, California Law and Ferrets: Are They Truly "Wild Weasels?", 23 Environs Envtl. L. & Pol'y J., Spring 2000, at 37, 39.
[FN11]. Hudson v. Janesville Conservation Club, 484 N.W.2d 132, 135 (Wis. 1992). The court distinguished classifying deer for purposes of a recreational statute as wild whereas previously the court classified deer as domestic for ownership purposes.
[FN12]. See, Sentell v. New Orleans and Carrolton R.R. Co., 166 U.S. 698, 701 (1897) (holding that because dogs are not protected by criminal laws, they fall somewhere between domestic and wild).
[FN13]. See, e.g., Robidoux v. Busch, 400 S.W. 2d 631, 637 (Mo. Ct. App. 1966). See also 4 Am. Jur. 2d Animal § 92, 96 (1995).
[FN14]. 4 Am. Jur. 2d Animals § 96 (2000).
[FN15]. Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R. 4th 446 (1987).
[FN16]. See generally Keith A. Cutler, When Man's Best Friend Bites, 54 J. MO. B. 24 (1998). Today, most states have replaced the one-bite rule with a strict liability standard, allowing negligence defenses, such as provocation by dog owner. See also, supra note 15, at 446.
[FN17]. Pamela D. Frasch, Animal L. 64 (2000).
[FN18]. S. D. Codified Laws § 40-1-1(5) (Michie 2000).
[FN19]. Pa. Cons. Stat. Ann. § 5511(q) (West 2000). Not all state statutes use the term "domestic." For example, Illinois uses the term "companion animal." 510 Ill. Comp. Stat. Ann. 70/3.02 (West 2000).
[FN20]. Kelch, supra note 3, at 537; see also Robin Cheryl Miller, Annotation, Damages for Injuring or Killing Dog, 61 A.L.R. 5th 635 (2001).
[FN21]. Robin Cheryl Miller, Annotation, Damages for Injuring or Killing Dog, 61 A.L.R. 5th 635 (2001).
[FN22]. Charles Darwin, the Descent of Man, 72 (London, Murry 1871). (The Great Chain of Being is a historical Western civilization theory that advocates a natural hierarchy ordained by a designed and ordered universe.)
[FN23]. Derek W. St. Pierre, The Transition From Property to People: The Road to the Recognition of Rights for Non-Human Animals, 9 Hastings Women's L.J. 255, 261 (1998).
[FN27]. Id. (citing Genisis 1:26).
[FN28]. Stanley Coren, How to Speak Dog 14 (Simon & Schuster 2000).
[FN30]. Clive Wynn, Do Animals Think, Psychol. Today, Nov. 1999, at 24.
[FN33]. The Health Benefits of Pets, NIH Technology Asses Statement Online (Sept. 10, 1987) at http://odp.od.nih.gov/consensus/ta/003/003_statement.htm (last visited Oct. 8, 2001).
[FN36]. See, e.g., Richardson v. Fairbanks N. Star Borough, 705 P.2d 454 (Alaska 1985); Wilcox v. Butts Drug Stores, Inc., 35 P.2d 978 (N.M. 1934); McDonald v. Ohio State Univ. Veterinary Hosp. 644 N.E.2d 750 (Ohio Ct. Cl. 1994).
[FN37]. See, e.g., Knowles Animal Hosp. Inc., v. Wills, 360 So. 2d 37 (Fla. Dist. Ct. App. 1978); Campbell v. Quarantine Station, 632 P.2d 1066 (Haw. 1981).
[FN38]. See, e.g., LaPorte v. Associated Indep., Inc., 163 So. 2d 267 (Fla. 1964); Johnson v. Wander, 592 So. 2d 1225 (Fla. Dist. Ct. App. 1992).
[FN39]. See Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996) (holding that the total damages recoverable for injury or death to a dog is the animal's value at the time of death).
[FN40]. Richardson, 705 P.2d at 456.
[FN41]. Wilcox, 35 P.2d at 978.
[FN43]. Id. at 979.
[FN49]. McDonald, 644 N.E.2d at 751.
[FN50]. Id. at 752.
[FN52]. 510 N.E.2d 1084 (Ill. App. Ct. 1987).
[FN53]. Id. at 1087.
[FN54]. See Roman v. Carroll, 621 P.2d 307 (Ariz. Ct. App. 1980) (holding that damages are not recoverable for emotional distress from witnessing injury to property).
[FN55]. See, e.g., Bravman v. Baxter Healthcare Corp.,794 F. Supp. 96, 100 (S.D.N.Y. 1992) (stating that "New York has been traditionally skeptical of emotional damage claims, leading to some apparently harsh results").
[FN56]. Knowles Animal Hosp., Inc., 360 So. 2d at 38 (Fla. Ct. App. 1978).
[FN59]. 595 N.W. 2d 884 (Neb. 1999).
[FN60]. Id. at 887.
[FN64]. Id. at 888.
[FN65]. Id. at 892.
[FN67]. Dillon v. Legg, 441 P.2d 912 (Cal. 1968). Many states have modified or expanded the requirements set forth in Dillon. For example, some jurisdictions require claimants manifest physical injury resulting from witnessing the accident.
[FN68]. For a thorough discussion on the types of relationships qualifying under Dillon's closely related standard, see Thomas T. Uhi, Bystander Emotional Distress: Missing an Opportunity to Strengthen the Ties That Bind, 61 Brook. L. Rev. 1399 (1995). Most jurisdictions seek to limit close relationship to family members, thus certainly intending to exclude pets.
[FN69]. See, e.g., Strawser v. Wright, 610 N.E.2d 610 (Ohio Ct. App. 1992) (The court, in denying a claim for emotional distress stated "we sympathize with one who must endure the sense of loss which may accompany the death of a pet. Under the law of Ohio, a dog is regarded as property.").
[FN70]. Restatement (Second) of Torts § 46 (1) (2001). "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Id.
[FN71]. Restatement (Second) of Torts § 46 (2) (2001). "Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any person who is present at the time, if such distress results in bodily harm." Id.
[FN72]. Gill v. Brown, 695 P.2d 1276 (Idaho Ct. App. 1985).
[FN73]. Id. at 1277.
[FN77]. Richardson v. Fairbanks N. Star Borough, 705 P.2d 454 (Alaska 1985).
[FN78]. Id. at 455.
[FN80]. Id. at 456.
[FN82]. 539 A.2d 858 (Pa. Super. Ct. 1988).
[FN83]. Id. at 864.
[FN84]. Id. at 859.
[FN85]. Id. at 864.
[FN86]. 626 A.2d 637 (Pa. Super. Ct. 1993).
[FN87]. Id. at 638.
[FN91]. Id. at 640.
[FN93]. In fact numerous critics have called for a lax standard of care for veterinarians. See Joseph H. King, The Standard of Care for Veterinarians in Medical Malpractice Cases, 58 Tenn. L. Rev. 1 (1990). The author states veterinarians should be responsible solely for negligent errors and not incorrect diagnosis or unfavorable results. Id. at 5.
[FN94]. See, e.g., Levine v. Knowles, 197 So. 2d 329 (Fla. Dist. Ct. App. 1967).
[FN95]. See generally, Restatement Second of Torts § 46(2) (2001).
[FN96]. See Soucek v. Banham, 524 N.W.2d 478, 482 (Minn. Ct. App. 1994) (Lansing, H., dissenting) (stating that "generally, courts award punitive damages based on a party's conduct rather than the consequences of its conduct.").
[FN97]. LaPorte v. Associated Indeps., 163 So. 2d 267 (Fla. 1964).
[FN99]. Id. at 269.
[FN100]. Id. at 268.
[FN103]. Id. at 269.
[FN104]. Reform is focused on reducing the size of punitive damage awards or raising the standards for seeking punitive damages. See Developments in the Law-The Paths of Civil Litigation III. Problems and Proposals on Punitive Damages Reform,113 Harv. L. Rev. 1783 (2000).
[FN105]. 197 So.2d 329 (Fla. Dist. Ct. App. 1967).
[FN106]. Id. at 331.
[FN107]. See, e.g., Thomas G. Kelch, supra note 3; David Favre, Equitable Self-Ownership for Animals, 50 Duke L.J. 473 (2000). Many scholars have advocated removing the property classification for animals.
[FN108]. Eliminating property status for pets would cause much confusion in the legal world, due to the variety of pet classifications. For who can say that a dog, unlike a cat, would deserve special dispensation outside of the prototypical property classification. In that respect, if a Hindu plaintiff were to appear before a judge to argue that his pet cow was maimed by the local large animal vet, who is to say that the cow, admittedly quite sacred in the Hindu religion, is not on the same level, if not higher, than another's pet dog?
[FN109]. For a list of state statutes concerning punitive damages, see BMW of N. Am. v. Gore, 517 U.S. 559, 615-19 (1996) (Ginsburg, J., dissenting).
[FN110]. See Janofski v. Preiser Animal Hosp.,510 N.E.2d 1084 (Ill. App. Ct. 1987) (stating that where property is not the ordinary subject of commerce or otherwise unique, damages should not be restricted to nominal damages, but rather they should be ascertained in some rational way. The court ultimately held that, included in an assessment of a pet's value, should be loss of companionship).
[FN111]. 844 F. Supp. 151 (S.D.N.Y. 1994).
[FN112]. 610 N.E.2d 610 (Ohio Ct. App. 1992).
[FN113]. See Developments in the Law-The Paths of Civil Litigation III: Problems and Proposals on Punitive Damages Reform,113 Harv. L. Rev. 1783, 1785 (2000).
[FN114]. See David Green, Prosecutors Nationwide Take Dog Killings Seriously, The Miami Herald, July 6, 2001, at A1. Criminal laws have strengthened over the years to punish animal abusers. In fact, animal abuse is a felony in thirty-three (33) states, and many high profile animal abuse cases are receiving more attention than human abuse cases.
[FN115]. See Gluckman, 844 F. Supp. 151; For an article offering a detailed analysis of Gluckman and proposing increased damage awards for pets, see Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059 (1995).
[FN116]. 632 P.2d 1066 (Haw. 1981).
[FN117]. Gluckman, 844 F. Supp. at 154.
[FN119]. Id. at 156.
[FN120]. Id. at 157.
[FN121]. Id. at 158.
[FN123]. Id. at 163.
[FN124]. Id. at 162.
[FN125]. Campbell, 632 P. 2d at 1067.
[FN127]. Id. at 1071.
[FN128]. Id. at 1067.
[FN130]. Id. at 1071.
[FN131]. Id. at 1070.
[FN132]. Gluckman, 844 F. Supp. at 158.
[FN133]. Campbell, 632 P.2d at 1067.
[FN134]. Gluckman, 844 F. Supp. at 154.
[FN135]. Campbell, 632 P.2d at 1067.
[FN136]. Gluckman, 844 F. Supp. at 158.