The law in United States categorizes animals as personal property. As a result, recovery of damages for the loss of a companion animal is oftentimes the fair market value. This inflexible approach to companion animals fails to distinguish between personal property such as a chair and a beloved pet.  Needless to say, awarding damages at fair market value serves as little or no deterrence for the tortfeasor. This is especially true in cases where the companion animal lacks pedigree or special training.  However, some decisions have authorized human guardians of companion animals to plead and recover the “unique value” of the companion animal. Such decisions reflect a shift in the court’s view of companion animals, which acknowledges public policy concerns for the guardian of the companion animal. This article discusses the law in United States concerning recovery of damages in cases involving harm to companion animals and the reasoning behind why courts should acknowledge such a recovery.

"He is the friend and companion of his master, accompanying him on his walks; his servant aiding him in his hunting; the playmate of his children, an inmate of his home, protecting it against all assailants." In his well-known tribute to the dog, United States Senator Vest characterizes him as "the one absolutely unselfish friend a man may have in this selfish world, the one that never deserts him, never fails him, the one that never proves ungrateful or treacherous." [1]

It is not unusual in the United States to find a companion animal being treated as a family member.[2] Such treatment can be attributed to Americans forming strong bonds with their companion animals, or even having a companion animal in lieu of children.[3] Where the latter takes place, a human guardian may become extremely devastated when his or her companion animal is harmed or killed in a wrongful manner.[4]

Domestic and captured wild animals are recognized as personal property at common law.[5]  As a result, the valuation of damages for the loss of a companion animal is often times the fair market value.[6] This inflexible approach to determining the value of a companion animal fails to distinguish between personal property such as a chair and a beloved pet.[7]  Needless to say, awarding damages in the amount of the fair market value of a companion animal serves as little or no deterrence for the tortfeasor. This is especially true in cases where the companion animal is not a pedigree or lacks special training.[8] This writing explores the social and psychological valuation of a companion animal in the United States. In addition, the writing covers decisions in the United States that authorizes a human guardian to plead and recover the “unique value” (cases involving intrinsic damages) of their companion animal.[9]

Such decisions reflect a shift in the court’s view of companion animals, and acknowledge public policy concerns for the guardian of a companion animal.[10] Currently, several jurisdictions allow recovery for intentional infliction of emotional distress, mental pain and suffering, and/or punitive damages where the tortfeasor has engaged in an intentional harm and/or gross negligence involving a companion animal.[11] This writing covers federal and state decisions concerning recovery for “loss of companionship” damages for intentional or grossly negligent acts resulting in the death of a companion animal.[12]

The writing is organized in the following manner: Section II covers the legal roots concerning the classification of companion animals; Section III gives a succinct overview of companion animal valuation; Section IV details the social and psychological value human guardians of companion animals place on their companion animals; Section V surveys both federal and state decisions on damages for harm to companion animals; and, using all of the material that precedes it, Section VI concludes on the topics discussed throughout the writing.

The U.S. legal framework on the law of property is a creature of the common law.[13] According to common law, animals are considered personal property.[14]           

The concept of animals as property is not, however, an original creation of the common law. Its lineage lays in antiquity. Steven Wise, in several articles dealing with, among other things, the history of the legal status of animals, notes that the present view of animals as property is based on the ancient Stoic view of the world. In this vision, the world was created for the benefit of humans who crown the natural hierarchy.[15]          

To illustrate this view, Steven Wise, in Rattling the Cage, astutely points out how Greek philosophers such as Aristotle, in his Politics, said “that all nonhuman animals were created for (Great Chain of Being) the sake of humans”.[16] Nevertheless, Greek philosophers such as Plato, a Pythagorean, elevated the moral status of animals, and practiced vegetarianism.[17] Religious philosophy also played a crucial role in defining modern views concerning the property status of animals.[18] According to traditional Christian theology, treating animals as mere property stems from belief systems that maintain humans as having a superior status in the world, and that animals are not legitimately the subject of such moral rights.[19] Interestingly, such belief systems were not only used to oppress animals, but applied to support slavery and the subjugation of women.[20]  

In the Seventeenth Century, Africans brought into the U.S. were bought and sold as chattel. During this same period, women, once married, became the property of their husbands. Possibly the biggest barrier to the exertion of rights by either group was their status as property. Similarly, the subordination of non-human animals stems from a refusal to recognize that animals have interests of their own.[21]

In line with these traditional and historical systems of belief, American jurisprudence has failed to recognize that companion animals have their own interests. As a result, the companion animal continues to hold little value and legal status as mere property.[22]  Nevertheless, progress concerning the legal status of companion animals is occurring outside the US. France altered its legal system by amending its 300 year old civil code to recognize companion animals as “protected property/living sentient beings.”[23]  In contrast, the U.S. legal framework concerning the legal status of animals involves a look at the common law. At common law, property rights for such animals were maintained as a result of the animal’s mobility. Classification for these animals was divided between wild and domestic.[24] If the animal is considered to be a “wild animal” a property right held by an individual would only exist upon the capture or taming of such a beast.[25] If the wild animal escaped, the property right held by the individual would disappear as well.[26] However, the holder of a property right to a domestic animal would not lose this property right if the animal escaped.[27]  Where the animal is categorized as a companion animal (a subcategory of domestic animals), a holder of this property right has more rights to the animal, but may have more duties under statutory law concerning the treatment and care of the companion animal.[28]  The property status concerning companion animals has been under scrutiny where strained definitions of property such as “animate, constitutive, sentimental, sentient or personhood” have arisen on behalf of companion animals.[29]

Nevertheless, the property status concerning companion animals in the United States remains intact. It is important to note that legal decisions and legislative action have actually improved the status of companion animals by providing their human guardians with a greater valuation for the companion animal, and damages in excess of the fair market value for the companion animal in question.[30]

III. VALUATION OF COMPANION ANIMALS

Working under the assumption that a wrongful injury or death to a pet has occurred, the question of appropriate valuation (economic and non-economic value) arises.[31] In an attempt to place a pet owner in the position prior to the wrongful harm or loss of her companion animal, damages are calculated based on the fair market value of the companion animal at the time of its death.[32] “Because of these property-based notions of animals, tort law applied to the personal property concept and as to the valuation of animals.”[33]  Various courts agree that the following factors are appropriate to consider in adequately compensating the owner, in excess of the fair market value: the “age” of the animal; the general “health” of the animal; the specific “breed” of the animal; the special “training” of the animal; the “usefulness” of the animal; and the “special traits or characteristics of value” of the animal.[34]

Companion animals with champion blood lines or popular purebreds can cost hundreds, and even thousands of dollars. However, a problem concerning adequate compensation arises when the majority of companion animals are mixed breeds that have little or no calculated value. The owner of a companion animal would tend to disagree with the courts system for the valuation of a companion animal.  A strong argument can be made that the legal system’s valuation of a companion animal is not in line with what an average pet owner is willing to spend on veterinary bills in order to preserve such chattel.[35]

 Notwithstanding an owner’s willingness to pay exorbitant amounts for treatment, only veterinary care that is reasonable and not in excess of the fair market value of the companion animal is used as a measure for the recovery of normal and foreseeable consequential damages arising from harm to the animal.[36] If the market value of the animal cannot be determined, courts have engaged in assessing the animal’s value (pecuniary value) to the owner.[37] “In some cases, human guardians of companion animals have been able to plead and prove damages resulting from the sentimental loss experienced” upon their companion animal’s wrongful death.[38]

Where the companion animal is a victim of a tortfeasor’s reckless or intentional acts, some courts have also authorized recovery for punitive damages.[39] “In assessing the appropriateness of punitive damage awards, some courts seemingly use a test of proportionality, and examine whether the amount of punitive damages is proportional to the amount of actual damages awarded.”[40] Punitive damages compensate a human guardian of a companion animal for injury to his/her companion animal, and punish the tortfeasor for his/her behavior.[41]

The following factors are taken into consideration by the courts when determining an award for punitive damages: degree of malice; amount needed to punish the defendant; wealth of the defendant; sentimental value of the companion animal; and degree of pain and suffering displayed by the human guardian of the companion animal.[42] Interestingly, the courts assessment of compensatory damages has generally been low, and in turn, results in a low recovery rate for courts deciding to apply punitive damages.[43]

The recovery of “mental pain and suffering” is considered within the broad policy and practical conflicts on the issue within each jurisdiction.[44] American jurisprudence has a history of being unwilling to award damages for “mental pain and suffering.”[45] The strongest argument for this reluctance lies in the court’s assumption that the floodgates may open.  Moreover, fraud and issues of proof, while inherent to any action, are also a concern for courts, as is the questionability of to whom the defendant may be liable.  It is the fact that these damages are not tangible, and there exists unpredictable liability for the defendant based on peculiar claims of value to the owner.[46]

“Some animal advocates believe that ‘loss of companionship’ for the death of a companion animal has the potential to evolve into a separate cause of action for non-economic damages.”[47] However, courts have rejected these claims as an independent cause of action.[48] The basis for this rejection stems from a traditional adherence to animals maintaining property status or the continuation of a state’s wrongful death statute preventing recovery for emotional distress and loss of companionship for the loss of a child or spouse.[49] Courts that take the stance of not allowing  for the recovery of non-economic damages have based their decisions on science, public policy, and legal reasoning existing centuries ago, and thus not in tune with the modern times.[50]

Historically, the common law was reluctant to claims for emotional distress and loss of companionship, even in the case of humans.[51] Nevertheless, not all decisions within the U.S. legal framework have entertained the archaic view of awarding damages only where a physical impact is present or at the fair market value. The decisions below will shed light on how harm to companion animals is measured and when recovery is authorized from a federal and state standpoint. Some of the decisions are in favor of increasing damages for the value of companion animals, while other decisions have perpetuated a companion animal’s property status. The cases are listed in alphabetical and chronological order.

Federal Decisions

In the case of Hatahley v. United States, 351 U.S. 173 (1956), a group of Navajo Indians living in Utah sued the government under the Federal Torts Claim Act, to recover the confiscation and destruction of horses and burros that were kept as pets and uniquely valued to the owners.[52] The federal agents confiscated these animals and then sold them to a glue factory.[53] The petitioners vehemently argued that these horses had unique and sentimental value to them, and served as a means of income to yield crops. Although the government agents argued that they were authorized to engage in this taking pursuant to the Utah Abandoned Horse Slaughter Act, the trial court ruled in favor of the petitioners.[54] The court awarded the petitioners a judgment of $100,000 based on the fair market value, consequential damages for deprivation of use, and “mental pain and suffering” of the petitioners.[55] The decision was reversed and remanded to the District Court with instructions to assess damages with sufficient particularity.[56] According to the Court, in order to plead damages with sufficient particularity, calculating the replacement cost of the animal included costs related to the purchase of a new animal of the same breed, immunization, neutering, and comparable training, and a disregard to the valuation of pain and suffering had to be made.[57]

In Mitchell v. Union Pacific R.R. Co., 188 F.Supp. 869 (S.D. Cal. 1960), an expert was allowed to testify about a dog’s income-potential based on evidence that the dog could perform special tricks and made numerous appearances at charitable events.[58] A jury verdict amounting to $5,000 was upheld where the court determined that the amount was not excessive and evidence of the dog’s income potential was not improper.[59]

In the case of Gluckman v. American Airlines, Inc., 844 F.Supp. 151 (S.D.N.Y. 1994), the companion animal was negligently stowed in the cargo hold during an airline flight, which resulted in its death.[60] The plaintiff alleged that he suffered intentional infliction of emotion distress from the death of his companion animal.[61] Plaintiff made a claim for loss of companionship.[62] The court dismissed these claims, and held that no cause of action existed under New York law to recover for pain and suffering or loss of companionship.[63]

Such decisions at the federal level are limited, however, these cases illustrate how some courts have taken a black and white approach to assessing the value of companion animals, while other courts have reached beyond the property status and taken the unique value of a pet into consideration.

The cases below concern state damages and recovery for companion animals, and are listed in the alphabetical order of the state.

Alabama

In Parker v. Miser, 27 Ala. 480 (Ala. 1855), the court recognized that at common law, an action existed for the conversion or injury to property, and acknowledged dogs as property.[64] The court went on to note that some amount of nominal damage existed for the wrongful killing of an animal, even in the absence of a precise amount.[65] Where the killing of the animal was done in reckless disregard, a plaintiff could seek punitive damages.[66]

In a gruesome case also out of Alabama, the defendant broke into the plaintiff’s home in search of the dog that bit his daughter.[67] The defendant had asked the plaintiff to kill the dog and have it tested for rabies, but the owner refused to do such a thing.[68] Upon finding the dog, defendant took the dog from the plaintiff’s home, killed it, and then decapitated its head to test the head for rabies. Devastated, the plaintiff filed suit alleging damages for emotional distress.[69] The Appellate Court did not address the claim for emotional distress and instead found that any damage was too remote and unforeseeable to grant recovery.[70]

On November 2, 1920, on a “moonlit night”, plaintiff was fox hunting by a railroad track when his dog was hit by the train.[71] Plaintiff claimed that defendant’s employee negligently ran over his dog while acting within the scope of his duties as an operator of the train.[72] In Louisville & N.R. Co. v. Watson, 208 Ala. 319 (1922), the Alabama Supreme Court affirmed a jury award of $50,  and held that it was proper for the plaintiff to show the excellent hunting qualities displayed by this dog to determine its market value.[73] 

Alaska

In Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Alaska 1985), the companion animal’s market value was determined at the time of death and did not include subjective estimations of the animal’s value.[74] The owner of the companion animal made a claim for non-economic damages where the dog was mistakenly killed by an employee of an animal shelter.[75] The court stated that they were willing to recognize a cause of action for intentional infliction of emotional distress in an appropriate case.[76] The court ruled that the severity of plaintiff’s mental distress did not warrant such a claim.[77] 

In a recent case, the Alaska Supreme 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.”[78] (Mitchell v. Heinrichs, 27 P.3d 309 (Alaska, 2001).  The case involved a woman who shot the plaintiff’s dog when it came into her yard and allegedly threatened her livestock.[79] In deciding upon recovery for mental distress, the Court took note of case law in other jurisdictions that authorized such damages for harm to companion animals.[80] The Alaska Supreme Court specifically declined, however, in allowing the plaintiff to include sentimental value as a component of the actual value to her as the dog’s owner.[81]                                                                                                                  

Arizona

Arizona courts look at animals purely from a property classification. For example, in Roman v. Carroll, 621 P.2d 307 (Ariz. Ct. App. 1980), plaintiff’s poodle was dismembered by a St. Bernard while plaintiff was walking the dog in the neighborhood.[82] The poodle died two days after the attack.[83] The plaintiff stated that during the attack she experienced great emotional distress and feared for the safety of her poodle and herself.[84] She then claimed that she was entitled to a trial on the question of damages for negligent infliction of emotional distress due to her close relationship with her pet poodle. The court disagreed and held that the poodle was personal property, pursuant to a state statute and that a plaintiff could not recover damages based on the negligent infliction of emotional distress from witnessing injury to property.[85]

Arkansas

Case law out of Arkansas, awards damages based on the fair market value at the place and time of the killing.[86] However, if evidence is not available in that location, outside locations may be considered.[87] Evidence concerning the qualities of a particular breed by an out-of-state breeder is also admissible.[88] In McDaniel v. Johnson, 225 Ark. 6 (Ark. 1955), a neighbor intentionally shot and killed the plaintiff’s pointer bird dog.[89] The defendant neighbor admitted to intentionally killing the dog to protect his property.[90] In affirming an award of actual and punitive damages, the court held that punitive damages were available where the defendant acted in a willful, malicious, and wanton manner.[91]

Thirty-five years later, a verdict for consequential and punitive damages was reversed for the conversion of a three-legged dog in Elliot v. Hurst, 307 Ark. 134 (Ark. 1991).[92] The appellee in this case had placed an ad stating that he had a certain breed of dogs for sale.[93] When appellant went to see the dogs, she noticed a serious leg infection.[94] After consulting with the local prosecutor’s office and an animal organization, she returned to the owner’s home to take the dog in for treatment.[95] The consulting veterinarian determined that the leg had to be amputated. The court held that the recovery was limited to the market value at the time prior to the amputation.

California

In 1919, a California court determined damages to be limited to the veterinary expenses connected with the injury to the animal.[96] (Roos v. Loeser, 41 Cal. App. 783 (Cal. App. 1919).  The case in question involved the untimely death of a Pomeranian dog.[97] In the opinion, the court lovingly discusses the value of the animal as follows: “The Pomeranian was small, weighing about four and a half pounds, but history discloses that the small dog had rendered modest, but heroic service and by his fidelity has influenced the course of history.”[98] Notwithstanding these words of praise for the small animal, the court decided that the value was limited to the fair market value and related expenses.

In Dreyer v. Cyriacks, 112 Cal. App. 270 (Cal. Ct. App. 1931), an altercation at defendant's house ensued, and as plaintiffs were leaving in a car, defendant fired shots from a rifle toward the vehicle.[99] The owner’s dog that was riding in the car was shot by one of the bullets.[100] Plaintiffs argued that the dog was worth $ 150,000 to $ 200,000 because he was a German police dog that appeared in movies and was a gift to humanity.[101] The court held that dogs are personal property and their value should not be of the kind recovered for a human being.[102] Therefore, the verdict of $100,000 in compensatory and 25,000 in punitive damages for an intentional killing was deemed to be in excess.[103]

In Wells v. Brown, 97 Cal. App. 361 (Cal. Ct. App. 1950), damages were assessed beyond the purchase price of a dog involved in a hit and run case where the defendant negligently ran over and killed a 15 month old pure-bred Waeimaraner.[104] After the defendant ran over the dog, he shot the dog and buried it.[105]  The next morning he contacted the veterinarian listed on the collar, as well as the owner of the dog.[106] The court upheld the jury verdict of $1,500 since the purchase price was determined to not reflect the market value at the time of the dog’s death.[107] The decisions out of California continue to recognize animals as property, and recovery at fair market value. However, legislation in California was introduced on February 13, 2003, which would authorize an owner of a companion animal to recover up to four thousand dollars for the loss of society, and loss of companionship experienced by the owner.[108] Nevertheless, the bill never passed, and exceptions to the bill significantly hampered its purpose by limiting liability to specific locations, circumstances, and individuals.[109]

Colorado

In Burlington & M.R.R.R. in Nebraska v. Cambell, 14 Colo. App. 141 (Colo. Ct. App. 1899), plaintiff’s horse was killed by a train.[110] Although the court reversed the verdict for the plaintiff for failure to prove defendant’s negligence, the court allowed witness testimony on the market value of the mare.[111] Other cases following Burlington, have held that recovery is calculated by determining the difference between fair market value before and after the injury and reasonable veterinary expenses incurred.[112] In radical contrast to the decisions in Colorado, the legislature proposed an exceptional bill that authorized non-economic damages capped at one hundred thousand dollars.[113] The bill acknowledged a modern view of animals in the following language: “[c]ompanion dogs and cats are often treated as members of a family, and an injury to or the death of a companion dog or cat is psychologically significant and often devastating to the owner.”[114] The bill even provided liability without an exemption for veterinarians who practiced in a negligent manner resulting in the killing of a companion animal.[115] Unfortunately, Colorado’s model bill did not get passed. Yet, it may serve as an effective tool for the drafter proposing similar legislation in their state.

Connecticut

A decision in 1885 held consequential losses as a result of the harm to an animal to be a proper element of damages in addition to the fair market value of the animal.[116] (Brown v. Southbury, 53 Conn. 212 (Conn. 1885).  In a more recent decision, the court acknowledged the limitation to the fair market value, but stated that other damages are sometimes allowed.[117] (Altieri v. Nanvati, 41 Conn. 317 (Conn. Super. 1989).   The plaintiffs in this case sought recovery for the emotional distress they experienced when their Lhasa Apso (dog) was neutered without their consent.[118] The court went on to discuss a Connecticut Supreme Court decision that disallowed bystander emotional disturbance claims arising from medical malpractice on another person.[119] The court further stated that “[t]here is no reason to believe that malpractice on the family pet will receive higher protection than malpractice on a child or spouse.” In line with the unfavorable case law coming out of Connecticut, a failed bill that was proposed in 2002, allowed for economic damages and punitive damages.[120] This bill was never passed as a result of not receiving responses on the house floor.[121]

Delaware

Decisions in Delaware only acknowledge the fair market value approach before and after the injury, with interest.[122]

Florida

Florida is given special acknowledgement for its relatively long history of recognizing that companion animals are more valuable to an owner than the mechanical fair market value. The case of Wertman v. Tipping, 166 So. 2d 666 (Fla. Dist. Ct. App. 1964), for example, set the wheels in motion for companion animals when the court affirmed a verdict of $1000, for a purebred dog.[123] The court declined in only applying the fair market value and held that recovery could include special or pecuniary value to the owner.[124]  Two year later, The Florida Supreme Court decided Laporte v. Associated Indpendents, Inc., 163 So. 2d 267 (Fla. S. Ct. 1964), and concluded: “(T)he 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.”[125] The facts in Laporte involved a defendant garbage man who laughed after he crushed plaintiffs’ dog to death upon throwing a garbage can on the tethered dog.[126] The Court held that plaintiffs were entitled to recover mental suffering as an element of damages since the act was malicious.[127]

In Levine v. Knowles, 197 So. 2d 329 (3^rd DCA 1967), the court found that plaintiff was entitled to proceed with a claim for punitive damages when the veterinarian intentionally cremated the plaintiff’s pet to destroy evidence of veterinary malpractice.[128] In a landmark verdict, the court in Knowles Animal Hospital v. Wills, 360 So. 2d 37 (Fla. Dist. Ct. App. 1978), upheld a jury award of $13,000, when an animal hospital left plaintiff’s dog on a heating pad to burn for two days.[129] The court found gross negligence and authorized an award for plaintiff’s pain and suffering.[130] Finally in Johnson v. Wander, 592 So. 2d 1225 (Fla. Dist. Ct. App. 1992), the Florida Supreme Court reversed the trial court’s decision to not allow claims for punitive damages and emotional distress after a veterinarian had left plaintiff’s dog to endure severe burns when the dog was left on a plugged in heating pad.[131] Strangely enough, it is not an uncommon occurrence for veterinarians to burn companion animals.[132]

Florida’s progressive trend was hampered by the decision in Kennedy v. Byas, 867 So. 2d 1195 (Fla. Dist. Ct. App. 2004).  Kennedy appears to be one of the strongest limitations for owner’s of companion animals.[133] In that decision the court concluded:

One area that was identified as having the gravity of emotional injury and lack of countervailing policy concerns to justify exceptions to the impact rule involves familial relationships, such as injury to a child as a result of malpractice. See Welker. We decline to extend this exception to malpractice cases involving animals. As we stated in Bennet v. Bennet, 655 So. 2d 109, 110 (Fla. 1^st DCA 1995), "While a dog may be considered by many to be a member of the family, under Florida law animals are considered to be personal property." In making this point we have not overlooked the decision of the Florida Supreme Court in La Porte v. Associated Indeps., Inc., 163 So. 2d 267, 269 (Fla. 1964).[134]

The court further concluded:

We acknowledge there is a split of authority on whether damages for emotional distress may be collected for the negligent provision of veterinary services. See Jay M. Zitter, Annotation, Recovery of Damages for Emotional Distress Due to Treatment of Pets, 91 A.L.R. 5^th 545,  §§ 3 and 4. We find ourselves in agreement, however, with the New York courts which recognize that while pet owners may consider pets as part of the family, allowing recovery for these types of cases would place an unnecessary burden on the ever burgeoning caseload of courts in resolving serious tort claims for individuals. Johnson v. Douglas, 187 Misc. 2d 509, 723 N.Y.S. 2d 627 (N.Y. Supp. Ct.), aff'd, 289 A.D. 2d 202, 734 N.Y.S. 2d 847 (N.Y. App. Div. 2001). We decline to carve out an exception to the impact rule for cases involving veterinary malpractice.[135]

The Kennedy court’s decision to side with the New York courts indicates a shift in the wrong direction for owners of companion animals. Effective tools similar to the enacted legislation in Tennessee (discussed below), can be used to statutorily erode the split of authorities discussed above, and protect a Floridian’s right to recover damages when their companion animal is wrongfully harmed or killed. 

Georgia

In line with most states, a decision out of Georgia held that the value of an animal could be proved using the market value, including certain qualities such as the particular breed.[136]  However, in the recent decision of Carroll v. Rock, 220 Ga. App. 260 (Ga. Ct. App. 1996), a cause of action for pain and suffering and punitive damages was upheld, but reversed based on certain facts.[137] The facts in that case involved a plaintiff who took her cats to the veterinarian to be neutered, but upon returning to claim her cats she was informed that one of the cats had escaped.[138] The veterinary clinic never found her cat, despite their efforts in searching the area and contacting animal control.[139] According to a “Vindictive Damages Statute” relied upon by the plaintiff, a defendant had to have acted in a malicious, willful or wanton manner for the recovery of “mental pain and suffering.[140]” The court determined that an action for emotional distress and punitive damages did not exist since the veterinary office had not acted in a malicious, willful or wanton manner.[141]

Hawaii

In 1981, the Hawaii Supreme Court issued a victory decision for companion animal owners.[142] In Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981), Princess, the family dog, died of heat prostration after being left in a hot, unventilated, state agency transportation van for at least an hour after arrival at a local animal hospital.[143] The family did not find out about the death of their 9-year-old female boxer until the next day when they received the fateful phone call. The issue in this case was whether the family had to witness the dog’s death to recover for mental distress.[144] On appeal, the Supreme Court found the owners and their four children could recover a combined $1,000 award against the state based on foreseeability of the dog’s death and the unreasonable actions of the state.[145] Interestingly, the award was upheld even though the family never saw the dead dog’s body, and never sought medical or psychiatric care for their emotional distress.[146] The Court held that the lower “court correctly applied the standards of law enunciated in our previous holdings in this area, and the issues of whether the damages were proximately caused by the defendant and have resulted in serious emotional distress to the plaintiffs are therefore within the discretion of the trier of fact.”[147] Essentially, the Hawaiian Supreme Court “eliminate[d] the preconditions of time, place, relationship, and physical injury that are imposed by other jurisdictions.” 

Idaho

Similar to Hawaii, Idaho is one of the few states that apparently authorizes recovery for infliction of emotional distress. In Zenier v. Spokane Intern. R. Co., 78 Idaho 196 (Idaho 1956)[148], a rancher’s mare and colt was killed, and the rancher sought statutory damages and attorney fees. [149] A jury found for the rancher and imposed damages mainly on his testimony as to value.[150] The railroad sought review, stating that the rancher's own negligence in allowing the horses to run barred recovery and there was no objective evidence as to value.[151] The court upheld the award, finding that the animal’s value to the rancher was permitted as a basis for determining damages where personal property has been injured by the willful or negligent act of another.[152]

In a more recent decision in Idaho, the plaintiffs alleged that defendant "negligently and recklessly" shot and killed their donkey, and since the donkey was a pet, it caused the plaintiffs to suffer "extreme mental anguish and trauma."[153] The court went on to state that if the plaintiffs could prove that the defendant acted recklessly and as a result, had caused them to suffer extreme “mental pain and suffering,” then recovery could be sought for intentional infliction of emotional distress.[154] Because the plaintiffs made no allegation of physical injury, a recovery for this cause of action was not allowed.[155] Nevertheless, the court held that in the case of harm to a companion animal, mental distress was a proper basis for recovery where specific facts were alleged and proven.[156]

Illinois

One of the earliest cases recorded in Illinois, concerning damages and recovery for a companion animal dates back to 1871.[157] In this case, plaintiff sought recovery for his dog that was shot and killed when it entered into defendant/neighbor’s backyard.[158] The Court held that the plaintiff could recover at least nominal damages, regardless of the fact that the animal had no actual market value.[159] D One year later, a decision out of Illinois authorized recovery of an animal based on the qualities, traits, consequential losses, and the market price.[160] (Spray v. Ammerman, 66 Ill. 309 (Ill. 1872).  Over a century later in Demeo v. Manville, 68 Ill. App. 3d 843 (Ill. App. 2 Dist. 1979), a hit and run case, the treating veterinarian stated that the cause of the dog’s death was due to either a beating or a car running it over.[161] Defendant denied plaintiff’s allegations that defendant ran over the dog and used a cover-up story.[162] The court upheld an award of five-hundred dollars although the purchase price was two-hundred.[163] Plaintiff testified that he paid $200 for his dog when it was a puppy, but it had appeared in four shows, winning first prize in each.[164] Evidence was considered for commercial value and special qualities in that case.[165] Similarly, in Jankoski v. Preiser Animal Hospital LTD, 157 Ill. App. 3d 818 (Ill.App. Ct. 1987), plaintiffs sought recovery for loss of companionship, loyalty, security and friendship of their wrongfully killed dog.[166] Plaintiffs alleged that defendant veterinarian improperly administered anesthesia and failed to monitor their dog afterwards.[167] The court held actions such as loss of companionship were not permitted in Illinois.[168] The court’s reasoning was as follows:

The Brousseau court [in New York] did not, as plaintiffs ask us to do, recognize loss of companionship as an independent cause of action, but rather considered it as an element to be used in measuring the actual value of the dog for purposes of calculating damages in a property damage case. In doing so, it followed the previously discussed rules regarding the assessment of damages in cases where the object destroyed has no market value. In line with these cases, we believe that the law in Illinois is that where the object destroyed has no market value, the measure of damages to be applied is the actual value of the object to the owner. The concept of actual value to the owner may include some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages.[169]

As such, Illinois does not allow loss of companionship as an independent cause of action, but it can be considered as an element.[170] In 2005, the Anzalone v. Kragness Animal Hospital LTD, 356 Ill. App. 3d 365 (Ill. App. Ct. 2005), court held that although an award for $100,000 was excessive, dismissal was not proper on solely those grounds.[171] Plaintiff in this case sought recovery for intentional infliction of emotional distress when a Rottweiler dog mauled plaintiff’s cat to death while visiting a private veterinary clinic.[172]  The court acknowledged the Jankowski precedent and held that the value of a pet to an owner could include elements of sentimental value to avoid the injustice of nominal damages.[173]

Indiana

Seider v. Dill, 137 Ind. App. 177 (Ind. App. Ct. 1965), involved a companion animal that was shot and killed by the defendant neighbor who alleged that the dog was after his livestock.[174] A statute in Indiana provided that a person was authorized to kill a dog “known” for “roaming” that harmed or threatened to harm the livestock.[175]  A verdict of six hundred dollars for the wrongful killing of the dog was affirmed.[176] Hunter, J. in a concurring opinion stated the following on dogs:

[T]he indiscriminate killing of a dog, without proof of more cannot be justified especially when such a dog is a child's or a household pet or the companion of an elderly person or a seeing-eye dog of a blind person, which dog regularly has a place of abode and is regularly fed by a master and is often temporarily beyond the control of, or who momentarily escapes or eludes the custody of,  its natural master and after a short absence will customarily return to the place of abode or custody of its master. We hold that neither should a dog, when in the pursuance of natural animal instincts, and is not vicious, or committing acts of injury, or a nuisance and is not a public health menace be considered "roaming" within the purview of Burns' § 16-204. In other words, a dog should not be judicially declared to be the object of target practice merely upon the whim of a person who would justify its killing simply on the grounds that it was outside the custody of, or momentarily and temporarily beyond the immediate recall command, of its master without proof of more than the strict hard language of the statute Burns' § 16-204.[177]

Unfortunately, the wise words of Judge Hunter were not adhered to, and the case was overruled thirteen years later in Puckett v. Miller, 178 Ind. App. 174 (Ind. App. Ct. 1978), as to defendant’s immunity for killing a dog that trespassed on to property and bothered the livestock.[178]

Iowa

Between the time period of 1865 and 1996, little or nothing has changed concerning the valuation of companion animals in Iowa.[179] (See the 1865 case of Anson v. Dwight, 18 Iowa 241 (Iowa 1865).  Early case law established that damages could be recovered based on habits, traits, breed, and purpose.[180] Recent case law held that damages can be determined by the purchase price, breed, usefulness, and habits.[181] In addition, the Iowa Supreme Court in Nicholas v. Sukaro Kennels, 555 N.W. 2d 689 (Iowa 1996), flatly rejected an argument for the intrinsic value of a companion animal.[182] Progress in history is not always linear, as evidenced in this state.

Kansas

Case law in this state recognizes the availability of punitive damages where the act is willful, wanton or malicious.[183] (Mc Donald v. Bauman, 199 Kan. 628 (Kan. 1967).  Veterinary costs and consequential losses are also allowed in determining damages (while it should be noted that the animal at issue in Webber v. Patton, 221 Kan. 79 (Kan. 1976) was a domestic pig versus a companion animal, and the award of damages was secured by a statute that allows recovery for all damages for attacks on domestic animals by dogs).[184]

Kentucky

In Burgess v. Taylor, 44 S.W. 3d 806 (Ky. Ct. App. 2001), plaintiff owned two horses for over 10 years and cared for like children.[185] When plaintiff became ill and could no longer care for the horses, she hired boarders who promised to care for the horses and let her visit with them when plaintiff desired.[186] Upon obtaining possession of the horses, the callous boarders quickly sold the horses for slaughter.[187] After months of searching and attempting to locate her horses which had been slaughtered by then, the devastated plaintiff brought suit against the boarders for intentional infliction of emotional distress.[188] The Kentucky Court of Appeals upheld an award of $50,000 in compensatory damages and $75,000 in punitive damages.[189] Kentucky is one of the six states that authorize recovery for infliction of emotional distress in cases in which an animal has been wrongfully harmed or killed.[190]

Louisiana

Plaintiff’s father brought an action and recovered for infliction of emotional distress when defendant shot and killed the child’s horse that was also pregnant.[191] The Court of Appeal in Brown v. Crocker, 139 So. 2d 779 (La. Ct. App. 1962), upheld an award of $250 for shock and mental anguish experienced by the child who could not stop crying about the loss of his horse and the colt that never was.[192] In 1984 in Quave v. Bardwell, 449 So. 2d 81 (La. Ct. App. 1984), the court upheld an award of $2,650, finding that the assessment of damages for plaintiff’s dog were proper since they were based on the value paid, stud fees, medical care, loss of income, and replacement costs.[193]

Maine

In Chapman v. Decrow, 93 Me. 378 (Me. 1899), the court held that a defendant who killed a dog could not plead that the dog was unlicensed as a defense.[194]

Maryland

The Maryland statute, Md. Code Ann. Cts. & Judicial Proc. § 11-110(b), codifies common law by stating that the measure of damages in the tortious injury or death of a pet is “the market value” of the pet before the injury or the reasonable cost of veterinary care, not in excess of $5,000.[195] In addition, Maryland proposed a bill in 2002, which allowed an owner of a companion animal to recover up to $25,000 in non-economic damages, where intentional acts of harm to a companion animal were proven.[196] Unfortunately, the 2002 bill was never passed.

Massachusetts

In Krasnecky v Meffen, 56 Mass App. Ct. 418 (Mass App. Ct. 2002), the plaintiffs sought damages for emotional distress, loss of companionship, and society when defendant’s dogs broke into plaintiff’s backyard and killed their seven sheep.[197] The plaintiffs loved their sheep like a parent would love a child, and went so far as to throw birthday parties for them. [198]

Plaintiff’s counsel, Steven Wise, Esq., also instructed the court to consult a text on veterinary ethics, which defined companion animals to include the plaintiff’s sheep within the definition.[199] The court did not address the issue concerning the emotional distress claim, but instead stated that the class of persons authorized to recover were “persons” closely related to the injured person.[200] Furthermore, Justice Jacobs noted that it would be irrational for plaintiffs to have greater rights in the case of a companion animal than in a case of the tortious death of an immediate family member.[201]

In Legislation, Massachusetts proposed a bill that provided for the fair monetary value of a wrongfully killed companion animal, to include loss of companionship, loss of society, comfort, protection and service.[202] In cases where punitive damages are warranted the legislation provides for a minimum award of $2,500 where willful, wonton, or reckless conduct is the culprit of the injury or death of a companion animal.[203] According to a law review article in 2003, by Elaine T. Byszewski, Tennessee’s T-Bo Act of 2002, is the first and only companion animal bill that has passed.[204] Tennessee’s T-Bo Act will be discussed later in the writing.

Michigan

In Koester v. VCA Animal Hospital, 244 Mich. App. 173 (Mich. Ct. App. 2000), plaintiff brought his dog to the veterinarian for weekend boarding.[205] Specific instructions to not place a collar on the dog because of a condition were disregarded.[206] The dog developed an unusual swelling and was negligently bandaged, which resulted in strangulation, according to a necropsy.[207] The Michigan Court of Appeals held that there was no cause of action for emotional distress concerning personal property.[208]

Minnesota

In Soucek v. Banham, 524 N.W. 2d 478 (Minn. Ct. App. 1994), the Appellate Court held that non-economic damages and punitive damages were not recoverable in the killing of a pet.[209] Consistent with existing law in Minnesota, the Appellate Court declined to regard companion animals as anything more than personal property.[210]

Mississippi

In 2002, Mississippi legislation proposed a companion animal bill that provided up to $5000 in liability for the negligent or intentional killing of a companion animal.[211] Although the bill was never passed, the intent of the bill was to make the owner of a companion animal whole again for loss of companionship.[212]

Missouri

The state of Missouri authorized punitive damages in a case where defendant maliciously took plaintiff’s dogs to a veterinarian to be euthanized for previous fatal attacks on defendant’s sheep.[213] (Propes v. Griffith, 25 S.W.3d 544 (Miss. Ct. App. 2000).  The court upheld damages in the amount of $4000.[214]

Montana

In Bedford v. Jorden, 215 Mont. 508 (Mont. 1985), plaintiff brought suit for veterinary malpractice against veterinarian alleging that veterinarian willfully or by gross negligence broke pet bird’s wing.[215] The bird was brought in for a second treatment and died at the veterinarian’s clinic shortly thereafter.[216] The court ruled that no prima facie evidence for negligence existed, let alone willful conduct.[217]  In McPherson v. Schlemer, 230 Mont. 81 (Mont. 1988), plaintiff’s cows were killed by defendant when they wandered onto the highway.[218] The court determined that damages were calculated at the present and future profits for fair market value.[219]

Nebraska

In Fackler v. Genetzky, 257 Neb. 130 (Neb. 1999), plaintiffs brought action against a veterinarian, alleging veterinary malpractice and sought damages for emotional distress.[220] The court held that the horses were personal property and that emotional damages could not be recovered for the negligent destruction of personal property.[221]

Nevada

No case law found was found that specifically discusses the award of damages for injury to companion animals.  (However, in Armstrong v. Riggi, 92 Nev. 280 (Nev. 1976), the Nevada Supreme Court discussed the issue of attorney fees in a case where damages had been awarded at trial to owners whose dogs were killed while being bathed and groomed by defendants). 

New Hampshire

In McBride v. Orr, 124 N.H. 66 (N.H. 1983), defendant animal control officer killed plaintiff’s dog believing that it was in pursuit of a deer.[222] Defendant claimed immunity pursuant to a state statute.[223] The Court reversed and remanded for a determination of damages for the plaintiff.[224] The Court went on to state that the purpose of the statute was not to authorize defendant’s killing of plaintiff’s dog when the dog was no longer pursuing the deer.[225]

New Jersey

In Hyland v. Borras, 316 N.J. Super 22 (App. Div. 1998), Plaintiff brought action for damages after defendants' dog, an American bulldog, got into plaintiff's backyard and attacked her ten year old shih tzu, causing the dog to be hospitalized and undergo surgery to repair torn ligaments and broken bones.[226] The court recognized the defendant’s claim that the veterinary costs ($2,500) exceeded the fair market value for the Shih Tzu.[227] However, the court applied a more flexible approach to traditional market value and ruled as follows:

Most animals kept for companionship have no calculable market value beyond the subjective value of the animal to its owner, and that value arises purely as the result of their relationship and the length and strength of the owner's attachment to the animal. In that sense then, a household pet is not like other fungible or disposable property, intended solely to be used and replaced after it has outlived its usefulness. Plaintiff raised the dog from the time it was a puppy. Both parties stipulated that plaintiff loved her dog and devoted time, energy, and money to train and feed it, in order to bring it to the level of maturity it had attained at the time of the attack. It is purely a matter of  "good sense" that defendants be required to "make good the injury done" as the result of their negligence by reimbursing plaintiff for the necessary and reasonable expenses she incurred to restore the dog to its condition before the attack.[228]

The veterinary costs to place the companion animal in the same position prior to the attack was five times the amount for the fair market value. In Harabes v. Barkery, 791 A.2d 1142 (N.J. Super. L. 2001), the Court held that practical and public policy reasons existed against allowing a claim for loss of companionship.[229] Legislation in New Jersey was proposed in 2003, which would allow a companion animal owner to recover damages against “anyone” who committed an act of cruelty against a companion animal, and also provided capped damages in the amount of $500 for loss of companionship or emotional distress.[230] In the unpublished action of Small Dog Rescue v. McKenney, the court held that plaintiffs could prove damages other than the market value of the dog, such as the intrinsic value to the owners.[231]

New Mexico

In Wilcox v. Butt’s Drug Stores, 38 N.M. 502 (N.M. 1934), plaintiff came into pharmacy to purchase her usual laxative for her show dogs when pharmacist recommended a different brand that ended up killing one of the dogs.[232] The New Mexico Supreme Court held that although sentimental value was not appropriate when calculating the dog’s value, it found recovery not to be limited to market value.[233] Factors such as breed, special qualities, and purchase price were looked at to determine value.[234]

New York

Corso v. Crawford Dog & Cat Hospital, 415 N.Y.S. 2d 182 (N.Y. City Civ. Ct. 1979),  involved a plaintiff dog owner who alleged that the animal hospital wrongfully disposed of her poodle’s body and gave her the body of a cat rather than a dog for an elaborate funeral she had planned for her dog.[235] Boldly the Court held that a pet was not only an item of personal property as New York precedent had held, but rather a pet occupied a special place in between a person and a piece of personal property.[236] In addition, the court ruled that, withholding or destruction of the dog’s body was actionable in tort, just as a case involving a human body.[237] The Court authorized the plaintiff to recover emotional distress damages beyond the market value of her poodle.[238]

A year later in the landmark case of Brousseau v. Rosenthal, 110 Misc. 2d 1054 (N.Y. Misc. 1980), the following factual scenario was presented: plaintiff delivered her healthy, eight-year-old dog for boarding at Dr. Rosenthal's veterinary office.[239] When she returned to the kennel on August 10, she was told that her dog had died.[240] In an effort to make the plaintiff whole again, the Court held that it would include loss of companionship as an element going towards damages and found:

Had the dog been alive, no one would have entered her apartment undetected, for the dog would have barked vigorously at the mere sound of a presence in the hallway outside her apartment. Resisting the temptation to romanticize the virtues of a "human's best friend", it would be wrong not to acknowledge the companionship and protection that Ms. Brousseau lost with the death of her canine companion of eight years. The difficulty of pecuniarily measuring this loss does not absolve defendant of his obligation to compensate plaintiff for that loss, at least to the meager extent that money can make her whole. The dog's age is not a depreciation factor in the court's calculations, for "manifestly, a good dog's value increases rather than falls with age and training.

However, in Jason v. Parks, 224 A.D. 2d 494 (N.Y. App. Div. 1996), the Court dismissed plaintiff’s cause of action for negligent infliction of emotional distress for the wrongful death of a companion animal.[241] In Legislation, New York proposed a bill for companion animals in 2003 that would authorize non-economic damages for intentional and negligent harm or death to a companion animal.[242]  Unfortunately, the legislation never passed.[243]

North Carolina

The plaintiff in Jones v. Craddock, 210 N.C. 429 (N.C. 1936), brought a cause of action for negligent injury to her dog.[244] In this case of first impression, the court embraced, “. . . the modern view that ordinarily dogs constitute a species of property, subject to all the incidents of chattel and valuable domestic animals.”[245]  The court determined that plaintiff was entitled to a cause of action for negligence since defendant could have avoided running over plaintiff’s companion animal with a slight turn.[246]

North Dakota

In Trautman v. Day, 273 N.W. 2