This is an overview of how the law compensates pet owners for injury or death of their companion animals caused by the wrongful conduct of another person. Even though the rules for the award of pet damages vary from state to state, the traditional and governing legal approach only recognizes the fair market value of the companion animal, with some exceptions that have allowed the recovery of veterinary costs, and cost of services provided by the companion animal as well. Pet owners have strong bonds with their companion animals. There is strong scientific evidence that demonstrates this relationship is so important that it has significant positive effects on the wellbeing of humans and that the level of grief one feels when a companion animal is lost is comparable to the grief felt when a close family member passes away. The average pet owner sees their companion animals as family members. Since pets play an important role in the life of their owners, it is generally assumed that pet owners can recover damages for their pain and suffering if someone injures or kills their four-legged family member. Unfortunately, this view is not yet reflected in the legal system, which still categorizes companion animals as personal property.
There have been several attempts at the lower court level to expand the recovery of damages. There is indeed an important development in the language used by lower courts where they have recognized that companion animals should not be seen just as mere objects and that pet owners should be compensated for more than just market value. This consideration is important because the majority of companion animals in the United States are of mixed breed and have little or no economic value. However, to date, this analysis is yet to survive at the state supreme court level. Why is there such a big gap between the value society has given its companion animals and the value assigned by the legal system? Does this have any consequences in the way plaintiff pet owners are compensated for the harm done to their pets? This document analyzes the current approach in the classification and valuation of companion animals, causes of action available when companion animals are killed or injured, and new legal strategies being implemented to expand damage recovery.
II. The Legal Status of Animals in the U.S.
The legal system in the United States views animals not as living beings, but as personal property. Personal property is any movable asset other than real estate that can be subject to ownership and it includes objects or chattel such as furniture, cars, and jewelry (“Definition of personal property,” The Law Dictionary, 2nd Ed). This definition is important because the determination of what type of damages a pet owner is entitled to recover for the death or injury to their companion animal initially depends on the legal status of companion animals.
Plaintiffs are allowed to sue tortfeasors that injure or kill their companion animals based on the notion that animals belong to their owners (they are personal property) and the pet owner’s interest in such animals has been affected. Animals do not have access to courts at this moment in time.
The holding in the unpublished case Naples v. Miller, No. CIV.A.08C-01-093PLA, 2009 WL 1163504 (Del. Super. Ct. Apr. 30, 2009) Illustrates how courts apply the principle of personal property when an animal is injured:
Section 1708 of Title 7 clearly defines a dog as personal property, which makes it subject to the same measure of damages as a sofa, a car, a rug, a vase, or any other inanimate item of property. If Ricky had chewed Plaintiff's $ 4,000.00 oriental rug, she may recover the value of the rug--or if he had broken a vase, the value of the vase. However devoted Plaintiff may be to Peanut, under Delaware law, Peanut is no different from any other item of personal property, and thus, provided a market value can be established, the proper measure of damages for injury to Peanut cannot exceed Peanut's market value. The court further stated that …Plaintiff's claim for past and future veterinary expenses is simply not recoverable under Delaware law because our law does not consider Peanut as a living thing, but only as a chattel.
Due to the property status that animals have, pet owners can only recover economic damages (fair market value, vet bills, etc.). What this means is that, in the majority of states, pet owners cannot recover damages beyond the market value of their companion animals even though their true loss would include noneconomic damages such as pain and suffering, emotional distress, and loss of companionship. It is important to note that noneconomic damages may be recoverable in a few states through the enactment of statutes, such as Tennessee (T-Bo Act, T. C. A. § 44-17-403) and Illinois (510 ILCS 70/16.3), § 16.3. Civil actions).
Indeed, companion animals in the eyes of the law are no different than a mere object such as a table or a chair. The primary focus of tort law when personal property is harmed or destroyed is to restore the economic interest of the plaintiff on that property to what it was before the injury or destruction occurred to the extent possible or to compensate the plaintiff for their loss. The recovery of economic damages requires a straightforward calculation when the pet has a market value: for example, if the pet owner paid a purchase price and the pet has pedigree or special training. A problem arises when the pet does not have a discernible market value. When for example, the pet was rescued or adopted and does not otherwise have any special training or particular qualities. From a legal perspective, this suggests that if a pet does not have market value or special characteristics, its life has little to no worth. Some states however have opted to recognize an alternative in such cases. In expanding recovery, they are allowing the actual value of the pet to the human at the time of the injury as a measure of recovery (discussed below).
III. Valuation of Companion Animals
Damages can be of economic or noneconomic nature and in limited circumstances, punitive damages are available as well. Economic damages are easy to ascertain and they are based on the market value of the property. Economic damages are those tangible losses that can be objectively calculated and there is documented evidence to support a claim for a specific monetary loss. Due to the legal classification of companion animals, this is the type of damages traditionally recognized by courts when a plaintiff seeks compensation for the death or injury of their companion animal as it is the equivalent to trespass to chattel and conversion of personal property depending on the interference of the defendant. On the other hand, noneconomic damages are not as straightforward to calculate as it is difficult to measure the loss of something as subjective as feelings, let alone assign a monetary value to. Noneconomic damages in the case of companion animals include pain and suffering, emotional distress, loss of companionship, and similar subjective losses a pet owner suffers as a result of harm done to their pets. Courts generally will not award compensation to pet owners based on emotional distress or loss of companionship.
According to the 2019-2020 American Pet Products Association (APPA) survey, 84.9 million households in the United States own a pet. 77% of owned cats are of mixed breed and 51% of owned dogs are mixed breed. ("Pets by the Numbers: Data and statistics on pet ownership, community cat, and shelter populations in the United States," The Humane Society of the United States, 2020). This shows that the majority of pet owners do not own pets that hold significant market value, and unless a pet that is not a pure breed has some special training or quality, their market value is most likely zero. What happens in those cases where a pet does not have anything that affects its commercial value? Can the owner of an elderly, adopted, mutt dog with no special characteristics recover any damages when his pet is killed or injured? How about veterinary costs when a companion animal is injured? Are they recoverable? What if the pet dies receiving such care? The answer to how much the life of a companion animal is worth depends on each state’s law. However, there are currently three approaches utilized by the states to measure the economic damages a pet owner is entitled to.
A. Majority Approach: Fair Market Value
The calculation of damages when personal property is destroyed is the fair market value of the item at the time of destruction or, in other words, the cost to replace it. When the property is merely damaged, damages are measured by the cost of repair. This calculation also applies in the case of companion animals. When a companion animal is injured, veterinary expenses would be the equivalent to the cost of repair. However, it is important to note that when the cost of veterinary care (repair costs) exceeds the value of the injured pet, in some states the “plaintiff's damages are measured by the fair market value of the injured pet immediately before the loss. In either event, the fair market value of the property before the loss establishes a ceiling for damages.” Warren v Heartland Auto Servs, 36 Kan App 2d 758; 144 P3d 73 (2006). See also Smith v. Wisconsin Mut. Ins. Co., 2016 WI App 41, 369 Wis. 2d 224, 880 N.W.2d 183 (2016) (unpublished), where the court of appeals affirmed the judgment of the lower court that limited damages to the cost of a replacement dog of the same breed because under Wisconsin law, dogs were personal property and under Wisconsin law recovery was limited to pre-injury fair market value.
Economic damages are more ascertainable and easier to prove. When a companion animal is killed or injured, fair market value is arguably what would fairly compensate plaintiffs for their loss. Though, when it comes to noneconomic damages, there are too many variables that make it difficult for a court to objectively award monetary compensation. Juries do not have a basis to objectively measure the sentimental value placed on a companion animal.
In Airight Sales, Inc. v. Graves Truck Lines, Inc., 207 Kan. 753, 486 P.2d 835 (1971), the Kansas Supreme Court defined Market value as “the price for which an article is bought and sold, and is ordinarily best established by sales in the ordinary course of business… In order for it to be said that a thing has a market value, it is necessary that there shall be a market for such commodity -- that is, a demand therefor and an ability from such demand to sell the same when a sale thereof is desired.”
How does the law determine what the market value of a companion animal is? As law Professor David Favre notes in his book, “Animal Law: Welfare Interests & Rights," in determining market value, anything that affects commercial value may be considered. Various courts have agreed that the following elements are appropriate to consider:
- The pedigree of the animal
- The purchase price of the animal and the purchase price of their littermates
- Any special abilities or training of the animals, and relevant awards
- The age and the general health of the animal
- Whether the animal was pregnant
See Barking Hound Vill., LLC v. Monyak, 299 Ga. 144, 787 S.E.2d 19, (Georgia, 2016). Here, the Supreme Court of Georgia held that “the value of a dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.”
Some states like California have recognized that in some instances a pet owner can recover veterinary care if it is reasonable and necessary. See Kimes v. Grosser, 195 Cal. App. 4th 1556, (California, 2011). In this case, the appellate court held that the plaintiff was entitled to have the jury determine whether the $36,000 expended for the veterinary care of the plaintiff’s cat because of the shooting were reasonable. Another example is the Martinez v. Robledo (Cal. App. 2d Dist. Oct. 23, 2012), where the appellate court stated:
Given the legislature’s historical solicitude for the proper care and treatment of animals, and the array of criminal penalties for the mistreatment of animals, as well as the reality that animals are living creatures, the usual standard of recovery for damaged personal property — market value — is inadequate when applied to injured pets.
In sum, when calculating damages when an animal is killed or injured, the traditional and most used method to calculate damages is the fair market value approach. Most courts have held that sentimental value is not a factor in determining the market value of companion animals. This approach is problematic as it is failing to adequately compensate pet owners for their actual loss. Under this approach, most courts are not just denying compensation for noneconomic damages, which is where the most significant injury lies, but they are also leaving plaintiffs without the opportunity to recover veterinary costs when they exceed the market value of their pets in the case the companion animal dies, or when the veterinary costs exceed the market value of the companion animal. A limited but increasing number of courts have allowed veterinary costs that are necessary and reasonable in addition to market value. Additionally, some courts have implemented a different approach when the market value of a companion animal is zero by allowing pet owners to recover damages for the actual value of the pet to the human. This is a step in the right direction of expanding damage recovery. However, the actual value approach still does not allow pet owners to recover noneconomic damages.
B. Actual Value to the Owner
Regardless of the inadequacy of the fair market value approach in fairly compensating plaintiffs, its calculation is generally straightforward and courts incline toward those approaches. But what happens when a pet has no market value? For example, this occurs when the companion animal is elderly, or has been rescued, adopted, or has a disability and no special training? The actual value to the human is the approach that a minority of states like Alaska (Mitchell v. Heinrichs, 27 P.3d 309 (2001)), Illinois (Leith v. Frost, 899 N.E.2d 635 (Ill.App. 4 Dist.,2008)), Kansas (Burgess v. Shampooch Pet Industries Inc,131 P.3d 1248 (Kan.App., 2006)), and Texas (Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013)) allow when the market value of a pet is unascertainable. This is a more suitable approach as most pet dogs and cats in the United States are of mixed breed and they most likely have little to no market value. The actual value to the human approach expands the recovery available to pet owners by allowing recovery beyond the pet’s market value. However, this approach does not allow recovery for noneconomic damages. The following cases help illustrate how some states have addressed the issue of what damages can be awarded for the wrongful injury to a pet with no market value:
The Alaska Supreme Court in Mitchell v Heinrichs, 27 P3d 309, 313-14 (Alaska, 2001) held that the actual value of the pet to the owner, rather than the fair market value, was sometimes the proper measure of the pet's value:
In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog or account for zero market value. Where, as here, there may not be any fair market value for an adult dog, the "value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce." Thus, an owner may seek reasonable replacement costs -- including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training.
In the Strickland v Medlen, 397 SW3d 184, 192 (Tex, 2013) case, the Supreme Court stated in its opinion:
The "true rule" in Texas remains this: Where a dog's market value is unascertainable, the correct damages measure is the dog's "special or pecuniary value" (that is, its actual value)—the economic value derived from its "usefulness and services," not value drawn from companionship or other non-commercial considerations…While actual value cannot include the owner's "feelings," it can include a range of other factors: purchase price, reasonable replacement costs, including investments such as immunizations, neutering, training, breeding potential, special training, any particular economic utility, veterinary expenses related to the negligent injury, and so on.
Undoubtedly, the actual value approach is more appropriate than the fair market value. In analyzing the purposes of tort law, actual value does a better job. It compensates plaintiffs more fairly by allowing them to recover damages beyond market value. Additionally, it prevents tortious conduct as it increases penalties by requiring tortfeasors to compensate plaintiffs even when the market value is not the correct measure of the economic loss of the pet owner. However, it is still flawed as it still fails to recognize that a pet owner’s loss is greater and more complex than the economic detriment that a pet owner may suffer. It does not allow recovery of noneconomic damages, which is where the injury is more substantial and the damages award would be more significant.
There is also a new approach where damages are expanded to allow recovery beyond economic value by recognizing noneconomic damages when a companion animal is killed.
C. Modern Approach: Right to Recovery Expands Beyond Economic Value
Pet owners place substantial value on their companion animals. $70 billion are spent annually on companion animals. This is proof of pet owners’ willingness to pay significant amounts of money to keep their pets healthy and to provide them with enrichment and quality of life (Deven Carlson et al., Monetizing Bowser: A Contingent Valuation of the Statistical Value of Dog Life, 11 Journal of Benefit-Cost Analysis 131–149 (2019)).
The fair market value and the actual value to the human approaches are addressing the economic loss a pet owner suffers when their family pet suffers an injury or is killed by the wrongful conduct of another. But what happens with the mental distress and emotional suffering a human feels when they experience such loss? The recovery of damages for a noneconomic injury depends on the type of injury and the cause of action undertaken by the plaintiff. Generally, when it comes to the recovery of noneconomic damages, state supreme courts have been consistent in denying compensation for sentimental injury such as emotional distress and loss of companionship. Conversely, there are two state supreme court cases that have favorably addressed the issue of emotional distress in pet injury cases. Florida was the first in 1964:
Without discussing the affinity between 'sentimental value and mental suffering' we feel that the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner was entitled to recover, irrespective of the value of the animal because of its special training, such as a seeing eye dog. The court further ruled that punitive damages were warranted because respondent's employee, who threw a trash can at the dog and laughed after the animal was struck by it, was malicious and demonstrated an extreme indifference to petitioner's rights.
La Porte v. Associated Independents, Inc., 163 So. 2d 267 (Florida, Sup. Ct., 1964).
Hawaii’s Supreme Court held in 1981 that serious mental harm can be inflicted when a person endures negligently inflicted property damage. Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Hawaii, 1981).
These two cases were quite innovative for their time and, even now, they continue to be the exception to the predominant approach. The La Porte case in particular has been narrowly construed since then. Interestingly, since the publication of these cases, no court has invalidated them.
Under this approach plaintiffs are compensated more accurately. It focuses on the emotional injury that owners suffer, which is ultimately what drives plaintiffs to seek recovery in court. The issue pet owners face is that virtually all state supreme courts have rejected this approach and continue to limit recovery to the fair market value or the actual value of the companion animal. This is problematic because owners are not being compensated for their true loss. It is important to understand that not just in pet injury cases, but also in personal injury cases, courts find it difficult to put a dollar number on emotional subjective feelings. Intangible losses such as emotional distress, loss of companionship, and mental anguish are subjective and difficult to prove. There are no standards for juries to calculate the degree of loss and recovery. However, even though noneconomic damages are not as straightforward as economic damages, they are still capable of being calculated. It is a question for the trier of fact and should be assessed on a case-by-case basis. Guidelines for such assessment are needed. In order to fairly compensate plaintiffs, noneconomic damages need to be taken into consideration.
IV. Tort Law
Tort law is the area that regulates the loss or harm a plaintiff suffers as a result of a civil wrong that arises from a situation other than a breach of contract. Damages is the remedy given to plaintiffs that have suffered an injury or loss. Damages are given to compensate the plaintiff as a monetary award that is intended to put the plaintiff in the position he was prior to their loss or injury and it is the legal remedy preferred by courts to compensate plaintiffs. Compensatory damages seek to compensate plaintiffs for their injury or loss and they are measured by the monetary value of the harm suffered. The purpose of tort law is to 1) fairly compensate plaintiffs and 2) to deter tortious conduct. Walters v Walters, 60 VI 768, 769 (Virgin Islands, Sup. Ct. 2014).
Companion animals play a very important role in the life of the owners. Far from being just an “animal," companion animals are considered family members by many. A recent study showed that “companion animals “are often described as the “glue” in the family; they are said to bring family members together and increase cohesion in the family (Cain, 1983). Companion animals are also commonly included in family rituals and ceremonies such as buying gifts for them on their birthdays or Christmas (Walsh, 2009). Given the companion animal’s role in the family, the loss of the companion animal can destabilize the family system (Walsh, 2009). (Leow, Cassandra, "It's Not Just A Dog: The Role of Companion Animals in the Family's Emotional System" (2018). Public Access Theses and Dissertations from the College of Education and Human Sciences, 317).
There are a number of studies that show the bond between humans and their companion animals has a significant positive impact on the overall wellbeing of owners. In his 2017 Tennessee Law Review article titled Animal Consortium, Professor David Favre talks about the wealth of scientific studies that show the relevancy of this relationship. Professor Favre states:
The strongest areas of research evidence demonstrating the human companion-animal bond are the positive health benefits of pet ownership.127 Pet ownership has been consistently correlated with positive physiological measures, such as lower blood pressure, serum triglycerides, and cholesterol levels.128 “[T]he presence of a pet was found to be more effective than a spouse or friend in ameliorating the cardiovascular effects of stress.”129 “Interactions with companion animals increase neurochemicals associated with relaxation and bonding and improves human immune system functioning.”130 “Overall, a broad range of investigations have found that animal-human interactions reduce anxiety, depression, and loneliness, as they enhance social support and general well-being.”131 A large study conducted in Germany and Australia spanning two decades with a sample size of over 10,000 people found that continuous pet owners were the healthiest group of people.132 The study found the positive health benefits of pet ownership remained significant after controlling for a variety of variables associated with health, such as gender, age, marital status, and income.133 The study also found that people who no longer had a pet or never had one were the least healthy groups of people.
84 Tenn. L. Rev. 893, 914 (2017). Courts have repeatedly held that there is no basis in law or public policy to expand the traditionally and intentionally narrow grounds of claims such as negligent infliction of emotional distress for loss of companionship. See Scheele v Dustin, 188 Vt 36, 37, (Vermont, 2010), where the Vermont Supreme Court held that the plaintiff had failed to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento. Here the plaintiffs brought suit against the defendant under an “intentional tort” theory and a claim for “loss of companionship.”
Another example is the McDougall v Lamm, 211 NJ 203, 206; 48 A3d 312 (New Jersey, 2012), where the New Jersey Supreme Court decided to keep the narrow and specific purposes for the recovery of negligent infliction of emotional distress that allows only certain individuals to be compensated for the traumatic loss of close family members. The court found “no basis in law or in public policy to change that meaning of the doctrine or to expand it in the manner that plaintiff requests.”
As more evidence about the existence and benefits of the human-companion animal bond become available, it becomes more difficult for courts to maintain that there is no public policy that justifies the expansion of damages available to pet owners. They know the science is there and that companion animals play a very important role in the life of their owners, their families, and society. However, they continue to reinforce an obsolete property precept that does not align with today’s societal values, ignoring the deeply rooted bond that exists between humans and their pets. This results in pet owners leaving court with no compensation for their loss.
V. Causes of Action Available for Injury or Death to Companion Animals
Having an economic interest in their pets, pet owners can bring legal action to be compensated for the wrongful interference with their property by the intentional or negligent conduct of the defendant. Therefore, it is the right of the pet owners and their property interest in their pets that the law is set up to protect, rather than the rights of the victim pet. The personal property classification of pets has many legal consequences but, for the case at issue, it also affects the recovery a pet owner is entitled to when their companion animal is killed or injured as will be discussed below.
The determination of what damages can be recovered vary from state to state. The extent of recovery for harm to a companion animal depends on the cause of action and the scope of damages allowed under that cause of action in that particular state (David Favre, Animal Law: Welfare Interests & Rights, 3rd ed. 2020). Pet owners have different causes of action available depending on whether the defendant acted willfully or negligently and also on the type of injury the pet owner seeks to be compensated for. For instance, is a pet owner seeking compensation for the harm done to their companion animal, or are they seeking compensation for the emotional impact they suffered as a result of the harm done to their animal? Pet owners bring lawsuits to recover for the death or injury of their companion animals under causes of action such as negligent or intentional destruction of property, negligent or intentional infliction of emotional distress, or the violation of individual civil rights. Defendants are usually neighbors, dog owners, veterinarians, or businesses such as boarding facilities and pet groomers.
A. Harm or Destruction of Personal Property
Wrongful harm or destruction of property also applies when an animal has been killed or injured. As discussed previously, the general rule for the measure of damages when personal property is harmed or destroyed is the fair market value or the cost of replacement. However, some states have adopted approaches where veterinary costs and other economic factors amounting to the actual economic value of the pet to the human are taken into account when assessing damages (See supra Valuation of Companion Animals Part III and infra Intentional Infliction of Emotional Distress Part V (E)). The legal status of animals affects the amount of damages that a pet owner can recover as well. Indeed, courts have focused on compensating the plaintiff’s economic losses and have ignored the sentimental value that pet owners have in their family pets. Some of the traditional claims are trespass to chattel, conversion, and negligence. Read the unpublished Perelman v Meade, 2021-Ohio-4247, 2021 WL 5764280 (Ohio, 2021) case to see how the majority of courts typically address this issue:
Damage for loss or injury to personal property, including dogs, is generally limited to the fair market value of the property. Because of this standard, Ohio courts have admitted that damages will seldom be awarded for the loss of a family pet since pets have little or no market value. However, several Ohio cases have awarded damages beyond fair market value, including the cost of veterinary expenses.
B. Veterinary Malpractice
Veterinary malpractice is the cause of action available to pet owners when their companion animals are harmed or killed as a result of veterinary negligence. Veterinarians as other professionals like doctors, lawyers, and accountants are held up to a higher standard of care than the traditional reasonable prudent person standard required in ordinary negligence cases. This is because as licensed professionals, they are expected to have superior knowledge and skill in the veterinary field.
For a pet owner to be able to recover under this cause of action, it must be shown that the veterinarian in question “failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession.” See Loman v Freeman, 229 Ill 2d 104, 119; 321 Ill 724; 890 NE2d 446 (Illinois, 2008). Even though the language of this legal standard varies in some jurisdictions, it has the same meaning. Notice that this standard requires that the veterinarian acts like a reasonable average veterinarian would under similar circumstances. To bring a malpractice suit against a veterinarian, a pet owner must generally show the following:
1. The veterinarian had a duty to perform according to the appropriate veterinary standards
Veterinarians have discretion when deciding whether to treat an animal. The duty to treat an animal is triggered when the veterinarian makes the decision to provide services and it continues until treatment is finished or the veterinarian informs the owner of the decision to not continue. There is no legal obligation to provide veterinary services. Refusing to provide treatment to an animal does not give rise to malpractice, though there is a question as to the ethical responsibility to provide services in emergency situations. “Such emergency care may be limited to euthanasia to relieve suffering, or to stabilization of the patient for transport to another source of animal care.” (Principles of veterinary medical ethics of the AVMA, 2019). However, refusing treatment under these circumstances does not create a presumption of malpractice.
In the Perelman v. Meade case (2021-Ohio-4247, 2021 WL 5764280 (Ohio, 2021)) mentioned above, the plaintiff alleged the defendant's negligence in performing a spay procedure on her dog “Piper” resulted in another spay surgery and a nephrectomy. The Court of Appeals affirmed the lower court decision and held since plaintiff had adopted Piper months after her surgery, she did not have a contractual relationship with defendants at the time of the surgery that would have established the existence of a duty. The court noted that “the existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability.”
2. The veterinarian breached that duty
To prove breach of duty, the pet owner must establish that the veterinarian fell below the professional standard of care when treating the specific pet. The plaintiff has the burden of proof that the veterinarian deviated from the professional standard of care. There is not a presumption of malpractice when an animal dies or remains ill. For instance, see Loman v Freeman, 229 Ill 2d 104, 119; 321 Ill 724; 890 NE2d 446 (Illinois, 2008), where The Illinois Supreme Court held that the defendant had breached the duty he owed to the plaintiffs when he performed the unauthorized surgical procedure to plaintiffs’ racehorse that rendered the horse “lame and unsuitable for racing.”
3. That the breach was the proximate cause of the damages
The analysis does not finish by showing that the defendant veterinarian did in fact fail to conform his or her conduct to the required standard of care. Even if a veterinarian acted negligently, the pet owner still has to show that the harm suffered was a foreseeable consequence of the veterinarian’s negligent conduct. (In Lauderbaugh v Gellasch, Ohio App 3d, (2008), the court found no proximate cause between the action of the defendant and the death of the plaintiff's dog. Based on the testimony of an expert witness, the court of appeals found that there were no facts that showed that the death of the plaintiff's horse was caused by failure to conduct the urinalysis suggested even if defendants would have performed the urinalysis as suggested the outcome would have been the same. Therefore, veterinary negligence was not found).
4. Plaintiff suffered damages
Lastly, to complete the analysis, the plaintiff has to show that they suffered harm or injury beyond the one that the pet suffered. Even though it will depend on the specific state where the negligence occurred, noneconomic harm is very unlikely to be recovered. A few states, however, may take into account sentimental value in accounting for actual value if the fair market value of the pet is zero. A pet owner may also be able to recover punitive damages and emotional distress when the veterinarian's conduct is intentional or grossly negligent.
Generally, these elements must be established by expert testimony, unless the conduct of the veterinarian is so wrong that an expert is not needed. The policy reason requiring experts is that expert testimony is often necessary because another veterinarian can offer insightful information as to whether the defendant veterinarian followed standards and procedures and whether failing to follow such procedures resulted in the plaintiff’s harm. Lay people in the jury would normally not have this type of knowledge. Expert witnesses usually testify about standard veterinary procedures in the community, in the state, or the nation (depending on the law of the specific jurisdiction), such as warnings and risks associated with treatments and administration of drugs.
An example is the Cerimele v Van Buren, 2013-Ohio-1277, Not Reported in N.E.2d, 2013 WL 1289400 (Ohio, 2013) case. In their opinion, the Ohio Court of Appeals stated that “expert testimony must establish the injury was more likely than not caused by the defendant's negligence.” Here, the court held that the expert veterinarian testimony did not provide evidentiary support that the defendant had caused an injury to the plaintiff’s dog by failing to discover a bone fracture. An issue faced by plaintiffs is that oftentimes veterinarians do not want to testify against their fellow professionals. This is particularly true when the duty of care is measured by the standards of practice in a specific community and veterinarians are likely to know each other.
If a pet owner succeeds in a malpractice suit, he will be able to recover the additional veterinary cost that had to be incurred as a result of the veterinary negligence. If the companion animal dies, then the market value or the cost of replacement is likely to be the damage award. As already mentioned, sentimental value is unlikely to be recovered due the current legal classification of companion animals, and the difficulty in determining a monetary amount that would compensate for the emotional suffering of the pet owner. However, depending on the laws of the specific state, actual value may be recovered, which may imply a larger damage award. For example, in 2004, a jury in California awarded $39,000 in damages for veterinary malpractice of a veterinarian that resulted in the death of the plaintiff’s dog. The award did not pertain to emotional distress, loss of companionship, or punitive damages. The jury based its opinion on the special value of the dog. ("California dog owner awarded $39,000 in veterinary malpractice suit," AVMA (April, 2004))
Recovery for veterinary malpractice is usually low, and this is one of the biggest deterrents for pet owners as the damage award will usually not be enough to even cover attorney’s fees and other litigation costs. Filing a complaint with the state veterinary licensing board is another option. As licensed professionals, veterinarians are required to act according to the standards of their profession. Negligence may result in suspension or revocation of the license to practice in the veterinary field. A pet owner also has the option to take their case to a small claims court. Small claims courts are the perfect forum to resolve disputes of smaller sums of money. The advantage is that plaintiffs do not need a lawyer to pursue their claim, so this may be a good alternative for those pet owners who could otherwise afford an attorney. (For more, see the complete discussion of veterinary malpractice).
C. Negligent Infliction of Emotional Distress
Harm or destruction of personal property focus on the damage done to the companion animal. This cause of action does not adequately compensate pet owners for their loss, which usually lays on the mental distress they suffer as a result of losing their family pets or seeing them suffer. Generally, there are two types of general distress. The first one is emotional distress, which refers to the pain and suffering of a plaintiff at the moment he suffers an injury and usually fades away as time passes. The second one is loss of companionship, which focuses on the long-term loss of the relationship with the animal that existed before the harm occurred (David Favre, Animal Law: Welfare Interests & Rights, 3rd ed. 2020). Even though these types of harm are different, they may exist at the same time.
Negligent infliction of emotional distress is a narrow claim that focuses on the mental suffering a plaintiff experiences as a result of witnessing a traumatic event and asks whether the action of the defendant inflicted emotional distress on the plaintiff. This cause of action could be an alternative, and in fact, it has been used by pet owners numerous times in an attempt to expand recovery and obtain noneconomic damages when they witness their pet’s injury or death. The bystander category seems to be the most appropriate in the case of companion animals, although direct claims of negligent infliction of emotional distress have been used as well.
Pet owners have not been successful in recovering damages under the bystander category even though plaintiffs are able to establish the closeness between them and their pets and that they have suffered physical manifestation as a result of severe distress. This is because courts have historically refused to include companion animals in the category of close relatives. This ultimately leaves severely distressed owners with a nominal recovery of the fair market value of their pets and, depending on where the plaintiff lives, they may or may not be able to recover veterinary expenses. For a plaintiff to be able to recover under the bystander category, the following elements must be met:
- The plaintiff has to witness a negligent injury
- The injury is inflicted on a person that is closely related to the plaintiff
- Plaintiff suffers physical symptoms as a result of their severe emotional distress
These requirements are in place with the purpose to ensure the validity and genuineness of the claim and to limit recovery, so tortfeasors are not burdened unfairly. Courts worry that allowing recovery in such cases would increase noneconomic damages awards substantially in situations where injuries such as pain and suffering would be too difficult to ascertain. See Liddle v Clark, 107 NE3d 478, 483 (Ind Ct App, 2018), where the court held that even if they decided to not follow existing precedent on “whether sentimental damages should be recoverable for the death of a pet due to negligence, it would be difficult to determine where to draw the line. Would all types of pets be included? Which individuals would be entitled to recover such damages for the loss of a pet?”
For the reasons stated, like other causes of action that focus on noneconomic damages, the bystander category is very limited and is only allowed in very specific instances when the plaintiff is closely related to the person whose injury the plaintiff witnessed. This category also requires physical manifestation of such emotional distress in order to be entitled to recovery. In the case of companion animals, a pet owner may experience emotional distress when their pet is injured or killed, but distress may be further increased when the injury or harm is witnessed. Generally, this cause of action is not available as most states hold that, even though the existence of the bond between humans and their companion animals is real, being classified as personal property, companion animals cannot be considered members of the family and therefore, the second requirement of the bystander category cannot be met. Courts consistently reject the notion that witnessing the death or injury of a pet is sufficient to allow a claim of negligent infliction of emotional distress. See Lachenman v Stice, 838 NE2d 451, 453 (Ind Ct App, 2005), where the court held that the loss of the dog was only an economic loss that could not support a negligent infliction of emotional distress claim.
In McDougall v Lamm, 211 NJ 203, 206, (New Jersey, 2012), Plaintiff witnessed how the neighbor’s dog shook her dog to death while she and her dog were on a walk. Plaintiff alleged that as a result of witnessing her dog's death, "she suffered significant and continuing emotional distress and discomfort and demanded damages for that emotional distress." In its opinion, the court noted:
Although we recognize that many people form close bonds with their pets, we conclude that those bonds do not rise to the level of a close familial relationship or intimate, marital-like bond. It further explained that…creating a cause of action based on observing the death of a pet would result in an ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings. The bond shared between humans and animals is often an emotional and enduring one. Permitting it to support a recovery for emotional distress, however, would require either that we vastly expand the classes of human relationships that would qualify for [NIED] damages or that we elevate relationships with animals above those we share with other human beings. We conclude that neither response to the question presented would be sound.
Hawaii has a different approach. The Supreme Court permitted a claim for negligent infliction of emotional distress for the death of a companion animal and extended its scope. See Campbell v Animal Quarantine Station, 63 Haw 557, 558; 632 P2d 1066 (1981). The Supreme Court of Hawaii held that a plaintiff did not need to witness the tortious event to recover for negligent infliction of emotional distress and that medical testimony about the degree of emotional distress is not necessary as long as the plaintiff can show that the distress was "serious." It should be used as an indicator of the degree of mental distress, not a bar to recovery. This case is often cited by plaintiffs that seek to broaden the applicability of NIED.
Plaintiffs have used different approaches in trying to persuade courts to expand the second requirement of the bystander category. Most of them have argued that the human-companion animal bond is so close that pets should be included in the definition of family. In Rabideau v City of Racine, 243 Wis 2d 486, 498 (Wisconsin, 2001), using the same theory, the plaintiff urged the court to use the rationale behind the limitation to allow only close family members to recover under this claim. Rabideau argued “that the limitation of claims to family members is a means of assuring foreseeability as well as a reasonable limitation of the liability of a negligent tortfeasor. According to Rabideau, the bond between companion animals and humans is one that is sufficiently substantial to ensure that these concerns are met.”
An alternative to the bystander claims that may be feasible is a direct claim of negligent infliction of emotional distress. This claim "can be understood as negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." To establish a direct claim of negligent infliction of emotional distress, a plaintiff must establish "(a) defendant owed a duty of reasonable care to plaintiff; (b) defendant breached that duty; (c) plaintiff suffered severe emotional distress, and (d) defendant's breach of duty was the proximate cause of the injury. Whether the defendant has a duty of care to the plaintiff depends on whether it was foreseeable that the plaintiff would be seriously, mentally distressed." Russo v. Nagel, 358 N.J. Super. 254, 269, 817 A.2d 426 (App. Div. 2003).
In the recent unpublished case Quesada v. Compassion First Pet Hosps., No. A-1226-19, 2021 WL 1235136 (N.J. Super. Ct. App. Div. Apr. 1, 2021), the appellate division of the Superior Court of New Jersey found the plaintiff case did not fall under "bystander" liability, but instead plaintiff has stated a direct claim of negligent infliction of emotional distress as his severe emotional distress did not arise from witnessing his cat in serious pain and ultimately dying, but rather upon viewing the cat's decapitated body at defendant’s facility. In this case, the court stated that a plaintiff's emotional distress "must be sufficiently substantial to result in physical illness or serious psychological sequelae." (quoting Aly v. Garcia, 333 N.J. Super. 195, 204, 754 A.2d 1232 (App. Div. 2000)). Courts have suggested that "lack of sleep, aggravation, headaches, and depression" are insufficient as a matter of law to demonstrate emotional distress without sufficient documentation. Id. The court held that the defendant owed the plaintiff a duty to return his cat's body in an acceptable condition and that it was foreseeable that the plaintiff would have a serious mental reaction to seeing his cat's decapitated body upon arrival at the viewing. The court further held that the defendant had breached their duty to plaintiff, disregarding this foreseeable serious mental distress, by decapitating plaintiff's cat without fully informing him of possible alternative testing procedures or requesting that the decapitated head be returned intact after testing, which was an available procedure.
D. Animal Consortium
This rejected cause of action proposes the expansion of the doctrine of loss of consortium to include companion animals. It focuses on the idea that pet owners view their animals less as property and more like family members. When a family member is killed, the surviving members of the family suffer harm that is recognized under the doctrine of loss of consortium. When a companion animal is killed, pet owners should be allowed to recover noneconomic damages for the loss of services, society, companionship, comfort, love, and solace under this cause of action. In his law review article titled “Animal Consortium” published in the Tennessee Law review in 2017, Professor David Favre explains why this cause of action should be expanded to include the intentional killing of a companion animal and proposes limitations to the doctrine. He starts by saying that the term loss of consortium was initially available to wives for the loss of love, companionship, happiness, and sex a wife suffered when her husband was wrongfully killed or injured. Since then, this concept has expanded, acknowledging the value of different family relationships. Professor Favre explains that the umbrella of consortium can expand further to include companion animals.
It seems natural to incorporate companion animals into the doctrine as well. The property status of animals should not be considered a hindrance to the application of the doctrine to companion animals. At the time the doctrine was created, both wives and children did not possess full legal rights and were considered the property of the husband. Yet the doctrine has evolved to allow both the wife and the child to have the right of consortium as their legal status transformed into full personhood. As the courts began to allow wives and then others access to this cause of action, it was an important part in the transformation of their legal status. Likewise, allowing an animal consortium cause of action by courts will be a real step in the legal transformation of the status of animals into living property. While this article does not suggest that any legal rights should be given to companion animals, the importance of the bond should be recognized by giving their human owners a cause of action.
In drawing the limitations for this claim, Prof. Favre states that this proposal should not be viewed as a step toward awarding the animal damages for wrongful death. Additionally, as the underlying science of the human-animal bond exists primarily for dogs, animal consortium claims should be available only for the loss of dogs and cats. Only one claim per family could be allowed. The plaintiff would have the obligation to show both the defendant’s tortious action and the animal’s standing as a member of the intimate family at the time of death. These limitations are a logical starting point from a practical implementation and a public policy standpoint. If the courts of a particular state are unwilling to allow the expansion of animal consortium, then the legislative route is possible.
(Read the Animal Consortium complete article). The Strickland v Medlen, 397 SW3d 184, 192 (Tex, 2013) case illustrates how courts address the intersection of animal consortium and loss of companionship. Here, the Texas Supreme Court held that loss of companionship was a form of personal injury damage, denying the expansion of this cause of action to include companion animals. The court held:
Loss of companionship, the gravamen of the Medlens' claim, is fundamentally a form of personal-injury damage, not property damage. It is a component of loss of consortium, including the loss of love, affection, protection, emotional support, services, companionship, care, and society. Loss-of-consortium damages are available only for a few especially close family relationships, and to allow them in lost pet cases would be inconsistent with these limitations.
To date, no court has allowed recovery under this cause of action. However, as companion animals continue to influence different aspects of society and pet owners continue to push courts to recognize that the importance of the relationship between humans and their pets should warrant recovery for noneconomic injuries. Perhaps in a not-so-distant future, courts will acknowledge that companion animals are no longer seen as mere property and will allow pet owners to be fairly compensated for the loss of their relationship with their beloved pets.
E. Intentional Infliction of Emotional Distress and Punitive Damages
Although most states do not allow recovery of noneconomic damages for injury or death of a pet as a result of a defendant’s negligence, emotional distress may be recoverable if a defendant acted maliciously. Intentional infliction of emotional distress is a cause of action that asks whether the defendant had the malicious intent to inflict emotional distress upon the plaintiff.
Under this cause of action, the conduct of the defendant has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. See Restat 2d of Torts, § 46. To maintain this claim, four elements must be established:
- The defendant intended to cause emotional distress
- The defendant's conduct was extreme and outrageous
- The defendant's conduct was a cause-in-fact of the plaintiff's emotional distress
- The plaintiff suffered extreme emotional distress as a response to the defendant's conduct.
A number of courts have denied damages because they have found that the defendant did not have the requisite intent to inflict emotional distress. See Rabideau v City of Racine, 243 Wis 2d 486, 501, (Wisconsin, 2001), where the Supreme Court ruled that “there must be something more than a showing that the defendant intentionally engaged in the conduct that gave rise to emotional distress in the plaintiff; the plaintiff must show that the conduct was engaged in for the purpose of causing emotional distress” in response to the plaintiff’s argument that she only needed to show that the defendant acted intentionally when he shot her dog and that the defendant should have known that he would cause severe emotional distress by shooting the dog in the plaintiff’s presence. Similarly in In Lachenman v Stice, 838 N.E.2d 451 (Indiana.App. Ct. 2005), the court of appeals affirmed the trial court’s decision as they found that the defendant’s conduct did not constitute outrageous behavior. Here, the plaintiff brought an action to recover veterinary costs and emotional distress against the owner of the dog that attacked and killed plaintiff’s dog. This court held that mere negligent behavior is not enough under this cause of action as there needs to be a conduct that is so extreme in degree "as to go beyond all possible bounds of decency, and should be regarded as atrocious and utterly intolerable in a civilized society." Id. at 457, citing Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind.Ct.App.1999).
In contrast to those cases, the Washington Court of Appeals held that the malicious harm to plaintiff’s cat, combined with plaintiff’s distress, were appropriately considered when upholding an award for emotional distress damages. Womack v Von Rardon, 133 Wash App 254, 261; 135 P3d 542 (2006). This court stated: "For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in, measuring a person's emotional distress damages.” This ruling affirmed a 5,000 monetary award for the malicious burning of plaintiff’s cat by the defendants.
Several states allow plaintiffs to recover for emotional distress when property is damaged so long as the elements of this cause of action are met. This applies in the case of companion animals as well. States like Kentucky (Burgess v. Taylor, 44 S.W.3d 806 (Ky. 2001)), Wisconsin (Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001)), Alaska (Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Alaska, 1985)), Idaho (Gill v. Morris Brown, 695 P.2d 1276 (Idaho App., 1985)), Florida (LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964)), and Washington (Womack v. Von Rardon, 135 P.3d 542 (Wash. 2006)) have awarded noneconomic damages and/or punitive damages under this cause of action. In fact, California has acknowledged the possibility of recovery under the appropriate set of facts. In Plotnik v. Meihaus, 146 Cal.Rptr.3d 585, 208 Cal. App. 4th 1590 (Cal. App. 3 Dist., 2012), a California court of appeals held that “in a proper case a person's intentional injuring or killing of a pet will support recovery of damages for intentional infliction of emotional distress.” Note that this case is relevant because it held that a pet owner could recover for emotional distress under the trespass to personal property cause of action. However, recovery under intentional infliction of emotional distress was barred because the court found plaintiffs would have recovered duplicative damages for the same transactional event.
Even though this is a limited cause of action, intentional infliction of emotional distress allows plaintiffs to recover greater damages than just economic value. It also allows punitive damages, as one of its requisites is malicious intent. This is attractive to plaintiffs, particularly because in the case of injury or death of companion animals recovery can be low and punitive damages can increase damage awards significantly. The Plotnik court based its decision on California's civil code that permits recovery of exemplary damages or "damages for the sake of example and by way of punishing the defendant." Said the court:
We believe good cause exists to allow the recovery of damages for emotional distress under the circumstances of this case…[W]hile it has been said that [dogs] have nearly always been held to be entitled to less regard and protection than more harmless domestic animals, it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt. Additionally, one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal.
Plotnik v. Meihaus, 208 Cal. App. 4th 1590, (Cal. App. 3 Dist., 2012).
Prior to that, the Kentucky Court of Appeals stated in Burgess v Taylor, 44 SW3d 806, 813 (Ky Ct App, 2001), that “[t]here are no cases in Kentucky holding that a finding of intentional infliction of emotional distress or punitive damages is precluded simply because the facts giving rise to the claim involve an animal.” Whether this cause of action is appropriate depends on the defendant's intent, rather than on the subject matter, in this case, two pet horses. This is a landmark case in Kentucky allowing noneconomic damages for an animal.
Under the stalwart Florida case of La Porte v Associated Independents, Inc, 163 So 2d 267, 267 (Fla, 1964), the plaintiff was entitled to recover damages for mental distress suffered as a result of the malicious destruction of her dog by respondent's employee. Here, the court held “the affection of a dog owner for her dog was a very real thing and was a proper element of damages for which the owner should recover, irrespective of the value of the animal because of its special training such as a seeing-eye dog or sheepdog." While LaPorte has been distinguished in its application in future animal law cases, it has not been overturned in almost six decades.
Causes of action involving mental distress are a step closer to the purpose of tort law as they do not focus on economic value, but rather they use the emotional impact suffered by the plaintiff as the measure for damage award. When it comes to compensation for negligent conduct, however, courts seem skeptical about allowing pet owners to recover for their emotional distress. Similarly, courts are yet to award damages for loss of consortium. The main concern seems to be the lack of precedent and the fact that companion animals are classified as personal property, which directly contrasts with the way pet owners view their companion animals. The issue courts encounter is that these causes of action are only available for specific groups of people, those that are closely related and under the current legal classification, companion animals cannot fit into this category.
Public policy considerations are what seem to keep judges from breaking from old precedent. For example, in Rabideau v City of Racine, 243 Wis 2d 486, 498 (Wisconsin, 2001), the court used the Bowen v Lumbermens Mut Cas Co, (Wis, 1994) test to deny recovery under negligent infliction of emotional distress for the shooting and killing of plaintiff’s dog when the dog entered onto the property of the defendant, who was a police officer. In this case, the court held that courts allow these cases in limited circumstances to ensure that claim is genuine, the tortfeasor is not unfairly burdened, and that other attendant public policy considerations are not contravened. While these are very important public policy concerns, there are other arguments that are as compelling that would allow the expansion of recovery.
Ultimately, the law should adapt to the passage of time and reflect societal evolution. As Judge Hotten stated in his dissenting opinion in the Anne Arundel Co v Reeves, 474 Md 46, 84; 252 A3d 921 (2021) case, “Given prevailing societal values, attitudes, and norms, it no longer appears tenable to deny emotional damages for a cherished family dog, in the same way that the common law precludes emotional damages for an inanimate object that was accidentally broken. After all, courts are the ones that have to change the precedent so if they refuse to do so, citing precedent and public policy, how will this ever change?
F. A Cause of Action Outside of Tort Law: Violation of Individual Constitutional Rights
There are certain constitutional rights that individuals have regarding their private property when the government destroys it or takes it away. Under 42 USCS § 1983, when the government deprives individuals of their constitutional rights, those individuals may be entitled to compensation. This cause of action is a newer more creative approach where plaintiffs allege a violation of their constitutional rights, rather than damages to their property. However, for this cause of action to be available, the government or a government agent must be the actor that infringes upon someone’s rights.
Individuals have a right to procedural due process under the 14th amendment and the right to be protected against unreasonable searches and seizures under the 4th amendment. Pet owners have constitutional rights that protect their interest in their companion animals, as these are considered personal property. This means that the government cannot seize or destroy companion animals without reasonable cause and without proper notice and hearing. If it does, then, the person whose rights have been violated is entitled to compensation, which can be significant.
When a government agent seizes or kills a companion animal in violation of these rights (i.e., a dog is shot without reasonable cause to believe he poses a threat to the officer’s safety), then that individual has a civil rights cause of action that may include noneconomic damages. For example, in Moreno v. Hughes, 157 F Supp 3d 687, 690 (ED Mich, 2016), the court disagreed defendant's argument that, in awarding damages, the court should only consider the property value of the dog. Here, the Michigan court stated:
If the Court were to preclude mental and emotional damages attributable to the constitutional violation, including the unlawful seizure of Plaintiff's dog, Plaintiffs will not be compensated for their "actual losses." Thus, this court must apply the federal common law and award emotional distress damages arising from Defendant's unlawful seizure of Plaintiffs' dog.
Id. at 690. Another case that arrived at a similar conclusion about awarding noneconomic damages is Brooks v. Jenkins, 220 Md App 444, 481; 104 A3d 899 (2014). Here, the appellate court affirmed the jury verdict against the police officer that shot the Jenkins’ dog named Brandy when serving an arrest warrant against the plaintiffs’ son. In upholding the jury verdict that awarded $7,500 for economic harm and veterinary bills and $100,000 for each plaintiff for noneconomic damages, the court held:
The evidence sufficed to support the jury's finding that the Deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference…that Deputy Brooks acted either with the intent to inflict injury or with "utter indifference" to the rights of others. The court further stated that nothing about CJ § 11-110 vitiated their existing right to recover, on appropriate proof, whatever non-pet damages they could prove, including their noneconomic damages, for the Deputy's grossly negligent violation of their constitutional rights…Because pets are property, CJ § 11-110 defines their property value, but it cannot rationally be read to cabin a grossly negligent official's total liability based on the fortuity that he shot a pet rather than something inanimate.
Id. This approach is a good alternative for pet owners that seek to recover noneconomic damages when a government actor kills or takes away their companion animals, particularly because courts are more willing to award noneconomic damages as they give them a separate analysis in addition to economic damage. In the case above, the jury was presented with extensive evidence of the plaintiffs’ emotional distress. However, there is not a standard that guides juries on how to arrive at a certain amount, especially if it is large. An interesting point to take into consideration is that a plaintiff may be able to recover completely different damages for the death or injury of their companion animal depending on who the defendant is. This dichotomy is reflected in the plaintiff’s recovery in Scheele v Dustin, 188 Vt 36, 37; 2010, where the defendant intentionally shot the plaintiff's dog. The Vermont Supreme Court held that the intentional shooting of the dog did not entitle the plaintiff to recover noneconomic damages. Compare that with the Moreno v Hughes case discussed above, where the court held that excluding mental and emotional damages for the unlawful seizure of the plaintiff’s dog would leave the plaintiff without adequate compensation for his actual loss. That is because Section 1983 cases are about a different type of harm – constitutional – rather than mere destruction of property. The focus is on the violation of an individual’s constitutional rights, rather than the intrinsic value of the animal.
G. Beyond Traditional Causes of Action: Using "Multispecies Families" to Deconstruct the Traditional Property Paradigm
While courts in the United States insist on viewing pets as personal property, courts in other countries seem to be looking at different strategies to reflect society’s view on dogs and cats. Courts in countries like Colombia and Argentina have started to implement the new concept of "multispecies families." In an effort to recognize that companion animals are no longer seen as just property, this concept recognizes that companion animals are family members and that the human-animal bond is so strong that it warrants legal protection. The relationship between humans and their companion animals has gained significant momentum around the globe and it is starting to be legally acknowledged in different countries. This important step entails the deconstruction of the traditional concept of family to include other forms of life. As Southern Methodist University (SMU) sociologist Andrea Laurent-Simpson explains in her book Just Like Family: How Companion Animals Joined the Household, "dogs and cats within the American family have a profound impact on things like fertility considerations, the parent-child relationship, family finances, involvement of extended family members, and the household structure itself.” Just Like Family: How Companion Animals Joined the Household (New York University Press, 2021). In Argentina for example, a judge in 2021 held that “Tita," a dog that was killed by a police officer, was a non-human child and that “her death had caused an irreparable loss to her multispecies family." (#Doctrina El reconocimiento de las familias multiespecie. Breves reflexiones a propósito del caso «Tita», July, 2021).
VI. Statutory Damages
As common law seems to have a difficult time reflecting the value that companion animals have in today’s society, and courts continue to embrace pets as personal property, statutory damages are also an option in the recognition of noneconomic damages for the death or injury of companion animals.
States such as California (West's Ann. Cal. Civ. Code § 3340), Connecticut (Conn. Gen. Stat. § 22-351a), Illinois (510 ILCS 70/16.3), Maryland (MD Code, Courts and Judicial Proceedings, § 11-110), Nevada (N.R.S. 41.740), North Dakota (NDCC 36-21-13), Oregon (O. R. S. § 30.822), and Tennessee (T-Bo Act") have some sort of legal provision awarding damages beyond the scope of market value. These provisions allow different types of damages and have different award ceilings.
Tennessee statute T.C.A. § 44-17-403 establishes that a pet owner may seek noneconomic damages up to $5,000 for the death of his or her pet against the person who intentionally or negligently causes the pet's death or injuries that led to the animal's death. Interestingly, these damages are not for the intentional infliction of emotional distress of the owner or other civil claim, but rather for the direct loss of "reasonably expected society, companionship, love and affection of the pet." Tennessee is the only state that statutorily allows these noneconomic damages. See the complete table of existing legislation. In contrast, Connecticut statute C. G. S. A § 22-351 allows recovery of veterinary costs, burial costs, attorney fees, and punitive damages. Connecticut limits punitive damages to a judicial ceiling.
VII. Survey of Most Recent State Supreme Court Cases Addressing Damage Recovery for Death or Injury of Companion Animal
The development of damage recovery for injury or death of companion animals at the state Supreme Court level has been very much stagnant in the last 10 years. There are only a handful of cases addressing the issue of the value of companion animals under the law. In all these cases different state Supreme Courts have arrived at similar conclusions: there is no recovery for emotional injuries for the loss of a companion animal. Some courts however have expanded the scope of damage recovery by allowing reasonable veterinary expenses and even actual value. Although there have been attempts to expand recovery at the lower court level, State Supreme Courts have notoriously ruled against any expansion that goes beyond recovery of economic value. See Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013), where a court of appeals held for the first time that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. The Supreme Court, in this case, reversed the appellate court decision on the grounds that dogs are ordinary property, with damages limited to market value, and noneconomic damages based on relational attachment are not permitted.
The following is a survey of state supreme court cases from 2011 to 2021. See the complete survey of U.S. Decisions.
Barking Hound Vill., LLC v. Monyak, 299 Ga. 144 (2016)
In 2012, the Monyaks took their dogs, Lola and Callie, for ten days to a kennel owned by Defendants Barking Hound Village, LLC (“BHV”) Callie, who had been prescribed an anti-inflammatory drug for arthritis pain. However, three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure and died in March 2013. The Monyaks sued BHV and the manager for damages alleging that while at the kennel Lola was administered toxic doses of the arthritis medication prescribed for Callie. BHV and Furman moved for summary judgment on all the Monyaks' claims asserting that the measure of damages for the death of a dog was capped at the dog's fair market value and the Monyaks failed to prove that Lola had any market value. The Court of Appeals concluded that the proper measure of damages for the loss of a pet is the actual value of the dog to its owners rather than the dog’s fair market value. The court stated that the actual value of the animal could be demonstrated by reasonable veterinary and other expenses incurred by its owners in treating injuries, as well as by other economic factors. However, evidence of noneconomic factors demonstrating the dog's intrinsic value to its owners would not be admissible. The Supreme Court of Georgia reversed in part and held that the damages recoverable by the owners of an animal negligently killed by another include both the animal's fair market value at the time of the loss plus interest and, in addition, any medical and other expenses reasonably incurred in treating the animal. The Supreme Court reasoned that “[t]he value of [a] dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.” The Supreme Court also affirmed the Court of Appeals in part and found no error in the court's determination that Georgia precedent does not allow for the recovery of damages based on the sentimental value of personal property to its owner.
Roper v. Greenway, 294 Ga. 112 (2013)
The Georgia Supreme Court granted a writ of certiorari to the Court of Appeals in Greenway v. Northside Hosp., Inc ., 317 Ga.App. 371, 730 S.E.2d 742 (2012), to determine if the Court erred in finding that the deputy involved in that case was entitled to official immunity in connection with the euthanization of two dogs. The plaintiff-dog owner sued a hospital, animal control officers, and sheriffs after he was pressured to sign a release form to euthanize his dogs when he was admitted to the hospital. The Court of Appeals reversed the lower court's ruling of summary judgment for Roper, the hospital, and the animal shelter operator. Specifically, the Court of Appeals found that the doctrine of official immunity insulated Roper from liability from his decision to ask Greenway to sign the form, but not from the actual execution of that decision. In the instant action, the Supreme Court reversed the Court of Appeals' judgment and remanded the case for further proceedings. The court noted that whether Roper's actions were malicious was beyond the scope of this writ of certiorari.
McDougall v. Lamm, 211 N.J. 203 (2012)
This New Jersey case considered whether a pet owner should be permitted to recover for emotional distress caused by observing the traumatic death of that pet. The incident giving rise to this case occurred when the plaintiff's "Maltipoo" dog was attacked and killed by a neighbor's larger dog as she was walking her dog. Plaintiff then brought an action against the owner of the larger dog, alleging negligence and emotional distress. The lower court entered partial summary judgment to the owner of the large dog on the emotional distress claim, and a bench trial awarded plaintiff replacement costs for her dog. On appeal here, the Supreme Court recognized that while many individuals develop close, familial bonds with their pets, expanding a cause of action for emotional distress due to the loss of a pet would create "ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings."
Hayes v. Akam Associates, Inc., No. 156457/2013, 2019 WL 4695713 (N.Y. Sup. Ct. Sep. 25, 2019)
In this case, plaintiffs sought recovery for property damage and for emotional distress and loss of companionship of their dog Toto, who died as a result of a fire in the building where plaintiffs resided. Plaintiffs were not home at the time of the fire. Upon their return, they learned their dog had died as a result of smoke inhalation. Plaintiffs found Toto’s body lying on the road, covered with a sheet. Plaintiffs alleged that their dog, who they considered a member of their family, had died as a consequence of the defendants’ negligence in inspecting, maintaining, supervising, operating, and controlling the building. In its opinion, the court stated that there was a well-settled common law precedent that pets are personal property and for that reason, damages for emotional injury were not allowed when a companion animal dies. The court declined to follow the cases that considered loss of companionship in determining the value of a pet and dismissed the causes of action seeking damages for the emotional injuries the plaintiffs alleged were caused by the loss of their dog.
Graham v Xiyun Gu, 2020 N.Y. Misc. LEXIS 1278 (2020)
In this case, Plaintiff sought reimbursement of the veterinary bills incurred in saving the life of her 10-year-old dog Delilah. Plaintiff alleged that Delilah was run over by the defendant's car while plaintiff’s mother was walking her on a leash. Delilah was a gift and did not come from a breeder. The cost of Delilah’s veterinary treatment, which included surgeries and physical therapy, was $26,536.52. The court dismissed the defendant's summary judgment and found that “there has been a clear shift in society and in New York in recognizing the value of a dog and the reimbursement for reasonable medical expenses incurred for a pet as a result of negligence.'' In citing previous authorities the court further explained that reasonableness of treatment should be determined on a case-by-case basis in light of the animal's injuries, condition, and prognosis and that “[t]he traditional restriction in personal property cases that the cost of repair should not exceed the market or 'intrinsic' value of the property should not be applied in a case where neither market nor 'intrinsic' value is capable of calculation and a living creature is involved."
Strickland v. Medlen 397 S.W.3d 184 (Tex. 2013)
The Supreme Court of Texas considers petitioner's appeal from the court of appeals' decision holding that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. The facts underlying the action involved the improper euthanization of the respondents' dog, Avery. They sued for Avery's “sentimental or intrinsic value” because the dog had little or no market value and was irreplaceable. The trial court found that Texas law barred such damages, and dismissed the suit with prejudice. The Court of Appeals of Texas became the first court to hold that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. The Supreme Court reversed that decision here, ruling that dogs are ordinary property, with damages limited to market value, and noneconomic damages based on relational attachment are not permitted.
The personal property classification of companion animals is problematic as it is completely misaligned with the current view pet owners have regarding their pets. To most pet owners, companion animals are family members and there are numerous studies to show evidence of this. The role of companion animals as members of their families is so significant that it has impacted society as many family decisions are made around their companion animals and their wellbeing. For instance, is the national birth rate being impacted as young families may be deciding to not have children and instead adopting pets? Other factors such as the decision to take a remote versus an in-person job, length of the workday, travel arrangements, space and location of a home are made while keeping companion animals in mind. Proximity to veterinary hospitals and boarding facilities are important factors to pet owners as well. By insisting on maintaining companion animals within the property limitation, the law is denying pet owners the right to recover for true loss when an animal is killed or injured.
Courts repeatedly hold that increasing damages to pet owners conflict with public policy as noneconomic damages are reserved for specific classes of persons to ensure that claims are genuine and that tortfeasors are not unreasonably burdened. Due to the nature of these damages, courts find it difficult to determine who could bring a lawsuit for harm done to a pet and even to quantify such evanescent damages. While it is true that injuries such as emotional distress and loss of companionship are more difficult to quantify, it is nevertheless applicable. There should be a standard for juries to calculate noneconomic damages in these cases. In fact, pet owners deserve and should be compensated for such a significant loss.
Different states have adopted different approaches in awarding compensation for harm to pets. These approaches vary between only allowing fair market value, to expanding recovery to reasonable veterinary expenses, and actual value when market value is zero, or some combination of these three. Most courts seem to have difficulty in changing judicial precedent to allow compensation for emotional distress and loss of companionship. A good policy argument in justifying the expansion of damages in addition to the fact that pet owners do not see their pets as property would be to look back to tort law purposes as the current measure of damages is not fulfilling them. Are pet owners being fairly compensated for the injury or loss of companion animals? Are the current approaches deterring tortfeasors from committing acts that could result in the death or injury of pets? It is unclear what impetus will force courts to consider the pets as property paradigm or if states will continue to defer to legislature for more damages statutes.