Supreme Court of Vermont.
Susan GOODBY and Robert Goodby, Plaintiffs-Appellants,
v.
VETPHARM, INC., d/b/a BCP Veterinary Pharmacy, Valerie Yankauskas, D.V.M., Paula
Yankauskas, D.V.M., Cynthia Pratt, D.V.M., and Charles Powell, D.V.M., DefendantsAppellees.
No. 2008-030.
March 3, 2008.
Appeal from the Lamoille County Superior Court Docket Number 252-12-04 Lecv
Brief In Amicus Curiae
____________________________________________________________________________
TABLE OF CONTENTS [omitted]
TABLE OF AUTHORITIES [omitted]
ISSUES FOR REVIEW
Amicus Curiae Animal Legal Defense Fund (“ALDF”) will address the following question:
Are plaintiffs entitled to recover for such non-economic damages as loss of companionship and
society, severe emotional distress, and negligent infliction of emotional distress for the wrongful
deaths of their companion cats?
INTEREST OF THE AMICUS
The Animal Legal Defense Fund (“ALDF”) is a national, non-profit organization of attorneys,
law students, law professors, and over 100,000 supporting members.
...
STATEMENT OF THE CASE
Plaintiffs Robert and Susan Goodby were the guardians and owners of two cats. Jellicle and Obi.
Jellicle and Obi lived with the plaintiffs as members of their family. Both cats suffered from hypertension which defendant veterinarians treated through the prescription of 1.25 mg amlodipine
chewtabs. On December 2, 2002, the Goodbys purchased a refill of the medication at Lamoille
Valley Veterinary Services, prescribed by Dr. Paula Yankauskas, and dispensed from a stock
bottle purchased from BCP Veterinary Pharmacy (“BCP”). Although the tablets were specifically warranted to carry a dose of 1.25 mg., they actually carried a much higher dose of at least
twenty times that amount, and thus the medication was toxic to cats. On December 4, 2002 the
Goodbys gave Jellicle and Obi tablets from the new batch of medicine. Both cats resisted taking
the medication but the Goodbys followed the veterinarians' orders and gave the cats the prescribed tablets. The next day, both cats were anorexic, cold to the touch, and lethargic. The
Goodbys brought Obi to Dr. Cynthia Pratt on December 6, 2002. Dr. Pratt diagnosed Obi with an
upper respiratory illness and released him. The next day, Mrs. Goodby called Dr. Valerie
1
Yankauskas because the cats' condition was worsening. Mrs. Goodby again expressed concern
that the cats resisted taking their medication, which they had not resisted in the past. Dr.
Yankauskas told Mrs. Goodby to continue to administer the tablets. On December 8, 2002, Jellicle's condition was much worse, so the Goodbys rushed her to Lamoille Valley Veterinary Services where Dr. Charles Powell determined that she was severely hypothermic, lethargic, anorexic, mildly hyperglycemic, and azotemic. Realizing that Obi had the same symptoms, Mrs.
Goodby rushed home to get Obi. Within a few hours of being admitted, Jellicle died. Dr. Powell
attempted to save Obi but to no avail. Obi died three days later.
Amicus Curiae ALDF adopts the rest of the Statement of the Case as stated in the brief of the
appellants, Susan and Robert Goodby.
I. INTRODUCTION
Companion animals play a central role in American family life. Americans own about 124 million dogs and cats1 and eighty percent of pet owners consider their animals part of the family.2
Not only are companion animals part of the family, fifty percent of pet owners are “very likely”
to risk their lives to save their animals and another thirty-three percent are “somewhat likely” to
risk their lives for their pets.3 Despite these statistics, the majority of states fail to acknowledge
the unique connection shared between humans and their companion animals. Animals are generally valued at their market price, with a number of courts equating the family pet with a common
and easily replaceable piece of furniture.
This Vermont Court can play a pivotal role in clarifying a legal issue central to the relationship
between humans and their companion animals and has the opportunity to follow an ever increasing body of law recognizing the true value of companion animals in America today. No Vermont court has opined on the precise measure of damages for the loss of a companion animal and
thus this is a case of first impression. However, Vermont courts do recognize the important role
that companion animals play in society and have articulated factors for courts to use to value that
role. The Vermont Supreme Court has declared that “pets generally do not fit neatly within traditional property law principles”' since a companion animal's “worth is not primarily financial,
but emotional; [her] value derives from the animal's relationship with [her] human companions.”4
William C. Root, ‘Man's Best Friend’: Property or Family Member? An Examination of the Legal Classification of
Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 VILL. L. REv.
423, 423 (2002) (citing Dave Hager, Pet Policies Look Better as Vet Bills Rise, GRAND RAPIDS PRESS, May 13,
2001, at J2 (“The Humane Society of the United States estimates that Americans own more than 124 million dogs
and cats.”)).
2
Elizabeth Paek, Fido Seeks Full Membership in the Family: Dismantling the Property Classification of Companion
Animals by Statute, 25 U. HAw. L. REv. 481. 482 (2003) (citing Rod Preece & Lorna Chamberlain. ANIMAL
WELFARE & HUMAN VALUES 242 (1993)).
3
Root, supra note 1, at 423 Id. (citing Cindy Hall & Bob Laird, Risking It All for Fido, USA TODAY. June 24,
1999.
4
Morgan v. Kroupa, 167 Vt. 99. 103 (1997).
1
2
A case arising from the death of a companion animal is neither a typical loss of property case nor
a typical wrongful death case. Courts cannot equate the life of a cat or dog with the life of a human, yet courts also recognize that animals play a more important role in our lives than simple
pieces of property. The loss of a family pet involves real emotional loss; loss of a unique relationship with a unique living creature. Plaintiffs are entitled to just compensation when a negligent defendant wrongfully causes such an injury.
Compensatory damages in excess of market value are appropriate here because defendants killed
a special kind of “property” named Jellicle and Obi, plaintiffs' longtime companion cats. Unlike
other forms of property, Jellicle and Obi were sentient beings, not disposable items readily replaced in the marketplace. Jellicle and Obi were indisputably a special kind of property: living,
breathing, feeling beings who formed unique relationships with plaintiffs, each with an identifiable emotional life and consciousness. There should be no doubt that when plaintiffs lost Jellicle
and Obi, plaintiffs lost important members of their family.
This Court must determine the appropriate measure of damages for the loss of these animals,
who like many companion animals, represent a unique conflation of family and property. Modern courts are increasingly determining damages based on companion animals' actual value to
plaintiffs, and that value is determined by identifiable factors supported by evidence. This Court
should follow this growing body of established law.
The Animal Legal Defense Fund (“ALDF”) submits this brief as amicus curiae, to assist the
Court in its determination of the proper measure of damages for the deaths of Jellicle and Obi.
For the reasons presented here and by plaintiffs, the Court should reverse the trial court's decision and remand this case with instructions that the trial court consider all of the evidence of
plaintiffs' damages. There is no measure of damages that can truly compensate plaintiffs for the
loss of these family members. The law, at its best, confers on the parties to a proceeding such as
this a sense of fairness and justice. So long as the law views companion animals as items of
property as easily replaced as a pair of shoes, however, it will not do justice, and it will not confer that sense of fairness essential to the parties involved.
II. COMPANION ANIMALS HOLD A UNIQUE PLACE IN AMERICAN SOCIETY
WHICH THE COURT SHOULD RECOGNIZE
A. Humans Feel a Unique Bond With Animals Which They Do Not Share
With Other Forms of Property
Humans have a unique bond with their companion animals. Overwhelming evidence proves
Americans do not consider companion animals to be like any other type of property.5 Indeed, if
a realistic and qualitative comparison is to be made, animals simply cannot be compared to other
forms of property for purposes of valuation cases like this. The only other types of relationships
that share the same general characteristics as those we have with animals are those we share with
5
Root, supra note 1.
3
other humans. Even though the societal value placed on animal relationships is not of the same
magnitude, the type of feelings and the range of emotions in human-animal relationships find
their only reasonable analogs in the experiences we share with other people on a daily basis. The
following facts are telling: 124 million companion animals live in American homes - nearly one
for every two Americans; companion animal owners view their pets as family members, not personal property; forty-five percent of dog owners take their pets on vacation; more than half of
companion animal owners would prefer a dog or a cat to a human if they were stranded on a deserted island; and fifty percent of pet owners would be “very likely” to risk their lives to save
their pets, and another thirty-three percent indicated they would be “somewhat likely” to put
their own lives in danger to save their pets.
B. The Animal-Human Bond Has A Positive Effect on Human Health.
In addition to the value of companionship, studies over the last two decades have confirmed the
health benefits derived from human-animal companion relationships. This data further establishes companion animals as a unique kind of property whose loss cannot and should not be valued
based on some traditional analysis appropriate for standard - non-living, non-sentient - items of
property.
By the mid-1980s, considerable evidence had been published, indicating that animal companions
help reduce the frequency of serious disease and contribute to a prolonged life.6 In the late 1980s
and early 1990s, an examination of the effects of companion animals on one-year survival rates
after acute heart attacks provided “strong evidence” that companion animals, and dogs in particular, promote cardiovascular health by supplementing social support systems, benefits that were
independent of the physiological severity of the illness.7 The report noted previous findings that
companion animals decrease their human companions' anxiety and sympathetic nervous system
arousal in response to stress and that Medicaid recipients with animal companions visited their
physicians less frequently than those without animals.8
A similar study in the early 1990s compared risk factors for cardiovascular disease in people
who shared their lives with animal companions and those who did not, and determined that peo6
Gregg A. Scoggins. D.V.M.Note. Legislation Without Representation: How Veterinary Medicine Has Slipped
Through the Cracks of Tort Reform, 1990 U. ILL. L. REV. 953. 973 (1990); Beck, Seraydarian & Hunter, Use of
Animals in the Rehabilitation of Psychiatric Patients. 58 PSYCHOL. REP. 63, 66 (1986); Fitzgerald. The Therapeutic Value of Pets, 144 J.MED. 103 (1986); Baun. Bergstrom, Langston & Thomas, Physiologic Effects of Humans/Companion Animal Bonding, 33 NURSING RES. 126 (1984), Mackie & Monroe. Heart Rate Changes in the
Horse to Human Contact, 11 PSYCHOPHYSIOLOGY 472 (1974); Friedmann, Katcher, Lynch, Messent & Thomas, Social Interaction and Blood Pressure: Influence of Companion Animals, 171 J. NERVOUS & MENT. DIS. 461
(1983); Cindy C. Wilson and F.L. Netting, Companion Animals and the Elderly: A State-of-Art Summary, 183
JOURNAL OF THE AVMA 1425, 1428 (Dec. 15, 1983); Serpell, The Personality of the Dog and Its Influence on
the Pet-Owner Bond, in NEW PERSPECTIVES ON OUR LIVES WiTH COMPANION ANIMALS, p. 57 (Aaron
H. Katcher and Alan M. Beck, eds., 1983); and Sandra B. Barker, Sandra B. Therapeutic Aspects of the HumanCompanion Animal Interaction,” PSYCHIATRIC TIMES 16, 46. (1999).
7
Erika Friedmann and Sue A. Thomas. Pet Ownership, Social Support, and One-Year Survival After Acute Myocardial Infrction In the Cardiac Arrhythmia Suppression Trial (CAST), 76 AmERICAN JOURNAL OF CARDIOLOGY 1213 (Dec. 15, 1995).
8
Id.
4
ple with animal companions had significantly lower systolic blood pressure and plasma triglycerides than those without animals.9 A recent study of stockbrokers already taking medication for
hypertension confirmed the positive correlation between animals and their companions: researchers found stockbrokers who adopted an animal companion eliminated blood pressure increases by fifty percent.10 Moreover, when participants underwent stressful verbal and mathematics tests, researchers found that the presence of companion animals calmed the participants
the most, while the spouse is the worst person to be there.”11
The actual dollars-and-cents value of an animal who reduces health problems and likely prolongs
life cannot be ignored or denied. Thus, physicians, health practitioners and scientific researchers,
along with legislatures and courts, now agree that companion animals occupy a unique and invaluable place in American life. Accordingly, it is a natural and appropriate step to measure
damages for the loss of a companion animal based on the actual value of the animal to his or her
guardian. Indeed, measuring the actual value is the only way to accurately assess the damages
caused by the loss of this four-legged “quasi-property.”
C. The Sum of Money Americans Spend on Companion Animals Demonstrates the
Importance These Animals Play in Our Lives
Americans are spending an increased amount of money on their companion animals. A nationwide survey conducted by the American Pet Product Manufacturers Association revealed that
consumers spent a record $36 billion on all companion animal products and services combined in
2004, more than doubling the number spent ten years ago ($17 billion).12 That $36 billion spent
on companion animals in 2004 has made the industry one of the largest sectors of the U.S. economy, exceeding the dollars spent on hardware, jewelry, or candy in that same year, according to
the U.S. Census Bureau.13 This is hardly surprising, given that sixty-three percent of all households have at least one companion animal, and seventy percent of those surveyed with dogs or
cats say that their companion animals are definitely family members.14 Further, nine percent of
dog guardians throw birthday parties for their canines, and twenty-five percent of all dog caretakers buy birthday gifts for their dogs.15 This increase in spending reflects the desire to treat
companion animals as family members and not as pieces of chattel.
9
Warwick P. Anderson, et al. Pet Ownership and Risk Factors for Cardiovascular Disease, 157 MEDICAL
JOURNAL AUSTRALIA 298 (Sept. 7. 1992).
10
Study: Pets curb dangerous rises in blood pressure, CNN, (Nov. 8, 1999). (visited March 1. 2008) at
http://www.cnn.com/HEALTH/.heart/index.html: see also Tracy Connor, Pets Can Reduce Blood Pressure, THE
NEW YORK POST, Nov. 8, 1999 at 28.
11
Study: Pets curb dangerous rises in blood pressure (visited March 1, 2008) <http://www.cnn.com/HEALTH/
heart/9911/07/pets.heart/index.html; Tracy Connor, Pets Can Reduce Blood Pressure, THE NEW YORK Post, Nov.
8, 1999 at 28 (both Id. (quoting psychologist Karen Allen, one of the principal researchers in the stockbrokers'
study).
12
Steve Dale. Pets Rule: Survey says: America is Pet Crazy, CHICAGOLAND TAILS. Holiday 2005. available at
http://www.tailsinc.com/site/epage/31421_ 551.htm (last visited 5/17/2006).
13
Id.
14
Id.
15
Id.
5
III. COMPANION ANIMALS AND THE LAW OF PROPERTY
A. Companion Animals are Considered Property
Animals are considered property in every United States jurisdiction; but that characterization is
no barrier to the damages sought here. An award of damages representing “actual value” damages is consistent with a fair judicial appraisal of the proper measure of compensation in similar
cases. The “property” label for animate beings and inanimate objects is simply a shorthand
method to refer to the interest an owner has in particular property.
“Property” describes the basic concept of the bundle of rights that an owner maintains. It includes “every species of estate, real and personal, and everything which one person can own and
transfer to another. It extends to every species of right and interest capable of being enjoyed as
such upon which it is practicable to place a money value.” River Power Co. v. Nevada Irr. Dist.,
207 Cal. 521, 524 (1929) (citations omitted) (emphasis added).
Property value is an individualized concept that must be considered on a case-by-case basis:
[A]nything to which a person may hold a legal title is property, whether it has any
market value or not. It may have intrinsic value, but no exchangeable value. It
may serve a useful purpose and yet be unsalable and unexchangeable. No one
may want it, or have the use for it, except he who possesses it, and yet to him it
may be a thing of value; that is, of intrinsic value, something that can be utilized
in the accomplishment of his purpose or the attainment of his desires...
Moody v. State, 56 S.E. 993, 994 (Ga. 1907). Yuba River and Moody are illustrative of longstanding and generally accepted property valuation doctrine. See also 73 CJS Property § 8 (2003) (the
term property “further includes every species of estate, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal or mixed, which may be the subject of ownership”);
Squire v. Guardian Trust Co., 84 N.E.2d 99, 105 (Ohio 1945) (“property...should have such a
liberal construction as to include every valuable interest which can be enjoyed as property, and
recognized as such”); Womack v. Womack, 172 S.W.2d 307, 308 (Tex. 1943) (property “extends
to every species of valuable right and interest”) (internal citations omitted).
It is clear that property with little or no market value can nevertheless have significant actual
value to its owner. The sentimental and emotional attachment of a human to his or her companion animals is a valuable relationship that society plainly recognizes. It follows that courts
should determine damages for loss of property such as a companion animal by properly assessing
the animal's true value to his or her guardian.
The “actual value” determination depends on a judicial consideration of property doctrine as well
as society's appreciation of the type of property at issue. Courts hold that property interests exist
in myriad contexts, applying the term both to tangible and intangible interests without easily calculable value. See, e.g., In re Trademark Cases (United States v. Steffens), 100 U.S. 82, 92
(1879) (trademark rights); Allied Inv. Corp. v. Jasen, 731 A.2d 957, 965 (Md. 1999); (stock cer6
tificates); In re Echo Enterprises, Inc., 324 S.E. 2d 312 (S.C. 1984) (hunting and fishing rights);
Golden v. State of Cal., 133 Cal. App. 2d 640, 645 (1955) (liquor license); People v. Leyvas, 73
Cal. App. 2d 863, 866 (1946) (gas ration stamps); Rest. 2d Judg. § 6, Comment 2 (chose in action).
Courts routinely recognize that different types of property represent different types of interests
and award different remedies for their loss. For example, the property interest in a trademark is
“based upon the party's right to be protected in the good will of a trade or business.”16 Similarly,
patents and copyrights protect “the fruits of intellectual labor, embodied in the form of books,
prints, engravings, and the like.” Trademark Cases, 100 U.S. at 94 (original emphasis omitted).
Courts also regularly award damages for the destruction of or injury to amorphous types of property. Mieske v. Bartell Drug Co., 593 P.2d 1308, 1311 (Wash. 1979) (“difficulty of assessment is
not cause to deny damages to a plaintiff whose property has no market value and cannot be replaced or reproduced”); Rhoades, Inc. v. United Air Lines, Inc., 224 F. Supp. 341.344 (W.D.
Pa.1963), aff'd, 340 F.2d 481 (3d Cir. 1965) (“[Destruction of personal property without a market value ... does not mean the property is valueless and that damages cannot be recovered ...
[Plaintiff] is entitled to damages based upon its special value to the plaintiff.”); Rest. (2d) Torts §
911 (1979) (discussing valuation of property without easily calculable value). Thus, even with
intangible property, the type of property and relation to its owner - rather than the mere designation as property - determines the owner's rights and remedies. The property designation means
only that the owner has a protectable interest. It does not restrict the type or amount of protection courts may afford to the owner or to the property itself. Nor does it restrictor the claims that
may be made or the remedies that may be had in disputes over the property.
Here, the Court is dealing with a type of property that has enjoyed legislative and publicly endorsed protection for centuries. Companion animals like Jellicle and Obi have enjoyed exceptional treatment by courts, legislatures, and society unlike that accorded to any other form of
property. We give animals special treatment for many reasons, including their inherent value,
and we value our relationships with them. Because we regard them so highly, we must also value each one, and the relationships we have with them, individually.
B. Animals Are A Unique Category Of Property With Undisputed Superior Legal Status
Over Other Forms Of Property
Legislatures and courts make it clear - resoundingly - that companion animals are not treated like
traditional personal property. Every American jurisdiction provides legal protections to companion animals. The casebooks and code books are full of decisions and enactments that protect the
animals who live among us. This extensive body of law highlights the longstanding consideration society has accorded animals and underscores the need for special treatment of animals in
cases like the one before this Court.
16
Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412 (1916), limited by statute as stated in. Park N Fly Inc. v.
Dollar Park and Fly, Inc., 469 U.S. 189 (1985).
7
The laws protecting animals from cruelty and abuse reflect a legislative, judicial, and societal
recognition of the special value Americans place on their nonhuman companions. This public
policy of caring and appreciation demonstrates animals' value should be protected. These laws
also conclusively establish that animals are not to be treated as other forms of property. For example, in no other circumstance does the law treat the abuse or intentional destruction of “property” as a crime; it does so for animals. Nor does the abuse or destruction of any other type of
property lead to a forfeiture of custody of that property, but it does for animals, in the same way
parents are denied access to children they abuse.17 Nor does the law require owners of “normal”
property who damage or destroy that property to undergo state-sanctioned psychiatric treatment
and/or evaluation, but if that property is an animal, many states, including Vermont, do.18 Nor
do courts allow visitation rights for inanimate forms of property, as they do for companion animals.19 Nor does the law recognize wills and trusts for the benefit of property, as it does for
companion animals.20 The import of these laws is clear. Animals are much different from inanimate property that is easily replaced in the marketplace.
1. State Animal Cruelty Statutes
All fifty states and the District of Columbia have enacted animal cruelty laws that penalize the
mistreatment of animals.21 Forty-two states, including Vermont, treat some animal cruelty as a
17
Vermont is among these states. See VT. STAT. ANN. tit. 13, § 353(b)(1), (3) (2007). California, Massachusetts,
Nevada, New Hampshire, Pennsylvania, Rhode Island, Tennessee, West Virginia, and Wyoming. Vermont gives
sentencing courts the discretion to require that defendants convicted of animal cruelty “[f]orfeit any future right to
own. possess, or care for any animal for a period which the court deems appropriate.” VT. STAT ANN. tit., 13, §
353 (b)(3) (2007).
18
See. e.g., VT. STAT. ANN. tit. 13, § 353(b)(4) (2007); ARK. CODE ANN. § 5-62- 101): FL. STAT. ANN. §
828.12; GA. CODE ANN. § 4-11-1 - 4-11-18; IOWA CODE ANN. § 717B.3A; 510 ILCS 70/3; NM. STAT. ANN.
§ 30-18-1; TEX. FAM. § 54.0407.
19
Courts in New York and Texas have ordered shared custody or visitation of animal companions. Raymond v.
Lachmann, 695 N.Y.S.2d 308, 308 (N.Y. App. Div. 1999); Arrington v. Arrington. 613 S.W.2d 565. 569 (Tex. App.
1981).
20
The Uniform Probate Court specifically recognizes assets transferred in trust for the benefit of a an animal as a
valid, enforceable trust arrangement. Uniform Probate Code §2-907. Probate law does not recognize a similar right
in other forms of property since inanimate property cannot hold title in other property.
21
ALA. Code § 13A-11-14; ALASKA STAT. § 11.61.140; ARK. CODE ANN. § 5-62-101; CAL. PENAL CODE §
597; COLO. REV. STAT. § 18-9-202; CONN. GEN. STAT. § 53-247; DEL. CODE ANN. tit. 11, § 1325; D.C.
CODE ANN. § 22-1001; FLA. STAT. ANN. § 828. 12; GA. CODE ANN. § 16-2-4; HAW. REV. STAT. § 7111109; IDAHO CODE ANN. § 25-3504; 65 ILL. COMP.STAT. 5/11-5-6; IND. CODE § 35-46-3-12; IOWA CODE
§ 717.2; KAN. STAT. ANN. § 21-4310; KY. REV. STAT. ANN. § 525.130; LA. REV. STAT. ANN. § 14:102;
ME. REV. STAT. ANN. tit. 7, § 4011; MD. CODE ANN., Art. 27, § 59; MASS. GEN. LAWS ch. 272, § 77;
MICH. COMP. LAWS § 750.50; MINN. STAT. § 343.21; MISS. CODE ANN. § 97-41-1; MO. REV. STAT. §
578.009; MONT. CODE ANN. § 7-23-4104; NEB. REV. STAT. § 17-138; NEV. REV. STAT. § 574.1001; N.H.
REV. STAT. ANN. § 644:8; N.J. STAT. ANN. § 4:22-17; N.M. STAT. ANN. § 30-18-1; N.Y. AGRIC. & MKTS
LAW § 353-a; N.C. GEN. STAT. § 14-360; N.D. CENT. CODE § 36-21.1-02; OHIO REV. CODE ANN. § 959.13;
OKLA. STAT. tit. 21, § 1685; OR. REV. STAT. § 167.315; PA. CONS. STAT. § 5511; R.I. GEN. LAWS § 4-13.1; S.C. CODE ANN. § 47-1-40; S.D. CODIFIED LAWS § 9-29-11; TENN. CODE ANN. §39-14-202; TEX. PENAL CODE ANN. § 42.09; UTAH CODE ANN. § 10-8-59; VT. STAT. ANN. tit. 13, § 352; VA. CODE ANN. §
3.1-796.122; WASH. REV. CODE § 16.52.205; W. VA. CODE § 61-8-19; WIS. STAT. § 947.10; WYO. STAT.
ANN. § 6-3-203.
8
felony;22 abandonment of an animal is a crime in twenty-three states, including Vermont.23
Courts apply these animal cruelty laws seriously, upholding convictions for cruelty to animals in
a wide array of situations.24 The law does not recognize criminal penalties for similar destruction or abuse of inanimate property.
2. Federal Animal Protection Laws
Federal law also illustrates the importance of animals in our society. At the end of 2007, there
were more than 30 federal animal protection statutes.25 These statutes illustrate our nation's belief that animals' lives are valuable and deserve protection.
22
Alabama, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. In recent years, there has been a trend toward harsher punishment of offenders, reflecting increasing legislative concern about the problem of animal cruelty. For example, Tennessee's aggravated
animal cruelty law, TENN. CODE ANN. § 39-14-212, provides for felony penalties upon the first instance of aggravated cruelty to a companion animal. The former law provided that the first act of aggravated cruelty was to be
charged as a misdemeanor, and only the second could be charged as a felony.
23
ARK. CODE ANN §5-62-101; Az. CODE ANN § 13-2910: CAL. PENAL COD § 597; FLA. STAT. ANN. §
828.13: IowA CODE § 717B.8; IND. CODE § 35-46-3-7; KAN. STAT. ANN § 21-43 10; ME. REV. STAT. ANN.
tit. 7 § 4011; Mo. REV. STAT. § 578.009; MONT. CODE ANN. § 45-8-211; NC. GEN. STAT. ANN § 14-361.1;
N.D. CENT. CODE §
24
ANN. § 8-3-203. 24. Edmondson v. Pearce, 91 P.3d 605 (Okla. 2004) (using gamecocks for fighting); Hall v.
State, 791 N.E.2d 257, 260 (Ind. Ct. App. 2003) (firing thirty projectiles into cat); Boushehry v. State, 648 N.E.2d
1174, 1176 (Ind. Ct. App. 1995) (slitting throat of goose); West Valley City v. Streeter, 849 P.2d 613, 613 (Utah Ct.
App. 1993) (using gamecocks for fighting); Commonwealth v. Barnes, 629 A.2d 123, 125 (Pa. Super. Ct. 1993) (neglecting horses); Norton v. State, 820 S.W.2d 272 (Ark. 1991) (failing to adequately care for goats and rabbits, causing them unnecessary discomfort); Tuck v. U.S., 467 A.2d 727 (D.C. 1983) (keeping puppies in unsanitary conditions in pet store); People v. Bunt, 462 N.Y.S.2d 142, 142 (Just. Ct. 1983) (beating dog with baseball bat); Wilkerson
v. State, 401 So. 2d 1110 (Fla. 1981) (torturing raccoon). Indiana, 648 N.E. 2d 1174 (Ind. App. 1995) (slitting throat
of goose). 36-21.1-02; NEB.REV.STAT. § 28-1009; N.M. STAT. ANN. § 30-18-1; NEV. REV. STAT. § 574.100;
OHIO REV. CODE ANN. § 959.01; TENN. CODE ANN. § 39-14-202; UTAH CODE ANN. § 76-9-301; VA.
CODE ANN. § 3.1-796.122; VT. STAT. ANN. tit. 13 § 352; WASH. REV. CODE § 16.52.011; Wis. STAT. §
951.15; W. VA. CODE § 61-8-19; Wyo. STAT.
25
See e.g. African Elephant Conservation Act, 16 U.S.C. §§ 4201-4245, Airborne Hunting Act, 16 U.S.C. § 742j-1,
Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3201-3202, Antarctic Conservation Act, 16 U.S.C.
§§ 2401-2412, Antarctic Marine Living Resources Convention Act, 16 U.S.C. §§ 2431-2444, Atlantic Salmon Convention Act, 16 U.S.C. §§ 3601-3608, Atlantic Striped Bass Conservation Act, 16 U.S.C. § 5151-5158, Atlantic Tunas Convention Act, 16 U.S.C. §§ 971, Driftnet Impact Monitoring, Assessment, and Control Act, 16 U.S.C. § 1822,
South Pacific Tuna Act, 16 U.S.C. §§ 973, Tuna Conventions Act, 16 U.S.C. §§ 951-962, Bald And Golden Eagle
Protection Act, 16 U.S.C. §§ 668-668d, Dolphin Protection Consumer Information Act, 16 U.S.C. § 1385, Fur Seal
Act, 16 U.S.C. §§ 1151-1175, Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407, Migratory Bird Conservation Act, 16 U.S.C. §§ 715, Northern Pacific Halibut Act, 16 U.S.C. §§ 773, Offshore Shrimp Fisheries Act, 16
U.S.C. §§ 1100b, Pacific Salmon Treaty Act, 16 U.S.C. §§ 3631-3644, Whale Conservation And Protection Study
Act, 16 U.S.C. §§ 917. Whaling Convention Act, 16 U.S.C. §§ 916, Wild Bird Conservation Act, 16 U.S.C. §§
4901-4916, Wild Free- Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340, Recreational Hunting Safety and
Preservation Act, P.L. 103-322. §§ 320801-320807, Animal Enterprise Protection Act. 18 U.S.C. § 43. Partnerships
for Wildlife Act, 16 U.S.C. §§ 3741-3744; Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-667d; PittmanRobertson Wildlife Restoration Act, 16 U.S.C. §§ 669-669i.
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The Federal government has specifically recognized animals as beings with independent interests. In detailed language and regulations, the Animal Welfare Act (“AWA”) expressly defines
the custody and care that must be provided to animals in research, entertainment, and sales. The
AWA was enacted to “insure that [these] animals ... are provided humane care and treatment.” 7
U.S.C. § 2131(1). Like the other federal laws, the AWA shows federal appreciation of the need
to consider animals separately and not as “standard” property.
C. Courts Treat Animals Differently Than Inanimate Forms Of Property
Courts considering issues surrounding animals regularly recognize the undisputed bond between
humans and animals. For example, Justice Arabian of the California Supreme Court summarized
the significance of animal companionship:
[T]he value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation... Animals provide comfort at the death of
a family member or dear friend, and for the lonely can offer a reason for living
when life seems to have lost its meaning... Single adults may find certain pets can
afford a feeling of security. Families benefit from the experience of sharing that
having a pet encourages.
Nahrstedt v. Lakeside Vill. Condo. Ass'n., 8 Cal. 4th 361, 390 (1994) (Arabian, J., dissenting);26
see also Bueckner v. Hamel, 886 S.W.2d 368, 376-78 (Tex. 1994) (Andell, J. concurring)
(“[C]ourts should not hesitate to acknowledge that a great number of people in this country today
treat their pets as family members. Indeed, for many people, pets are the only family members
they have.”). Thus, courts have acknowledged the special value that companion animals confer
on their human families.
IV. DAMAGES FOR COMPANION ANIMALS SHOULD BE MEASURED BY THE
ANIMALS' ACTUAL VALUE TO THE OWNER
As discussed above, courts and legislatures recognize that the traditional market value calculation of damages does not adequately compensate the guardian of a companion animal for the
wrongful death of her pet.27 Typically, if fungible, a plaintiff can acquire equivalent property on
the market. But where the companion animal has a limited or non-existent market value, but is a
unique being with a very real value to his or her owner, the traditional approach to damages does
not make the plaintiff whole, because she cannot replace her unique “property.”
The market value approach to measuring property is a standard used by courts to measure normal
property loss. But it is not the only way to measure damages. When the market value of property cannot be ascertained, or where the market value does not adequately compensate the owner,
26
Although the majority in Nahrstedt disagreed with Justice Arabian on the issue of the enforceability of a restrictive covenant concerning pets, the Court agreed with him on the subject of animal companionship.
27
See Debra Squires-Lee, Note, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort 70 N.
Y.U.L. Rev. 1059, 1081-83 (1995).
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many courts use “a more elastic standard... sometimes called the standard of value to the owner.”28 In a veterinary malpractice action, the McDonald court applied the “value to the owner”
standard and awarded the plaintiff companion animal owner damages based on the unique role
the plaintiff dog played in her life.” The court noted that the value-to-owner doctrine is the best
measure of damages in cases where the property has a unique value to the owner that does not
translate into a value in the open market.29
Different courts and legislatures use different terms: “actual value,” “special value,” or “peculiar
value,” but the principle is the same. Damages must be awarded based on factors particular to
the animal in question as well as the specific human-animal relationship disrupted. Such a
measure is above and beyond the traditional market value approach. The courts (like the legislatures authorizing peculiar value damages) awarding actual value to owners recognize companion
animals have inherent value and often possess unique traits that cannot be reflected in their market value. Those facts translate into a value that cannot be compensated by a simple market value
analysis.
For over one hundred years, courts have held that in actions involving the death of companion
animals, a plaintiff may recover damages for the animal's “special” value. See, e.g., Hodges v.
Causey, 26 So. 945 (Miss. 1900) (special value damages awarded to owner; allowing witnesses
to testify to the dog's qualities and characteristics); Klein v. St. Louis Transit Co., 93 S.W. 281,
282-83 (1906) (applying actual-value-to-the-owner standard and holding trier of fact could
award damages based on evidence that dog owner prized his dog, took pleasure in his company,
and was proud of what the dog could do).
Many modern courts have built on earlier precedents to hold that the proper measure of recovery
for the loss of a companion animal is the real or “actual” value of a pet to the owner. See, e.g.,
Mitchell v. Heinrichs, 27 P.3d 309, 313 (Alaska 2001) (including costs of training, costs of replacement, medical care, immunizations); Zeidv. Pearce, 953 S.W.2d 368, 369 (Tex. App. 1997)
(recovery for death of dog is market value or special value to owner); Altieri v. Nanavati, 41
Conn. Supp. 317, 320 (1989) (recognizing damages beyond market value sometimes awarded);
Zager v. Dimilia, 524 N.Y.S.2d 968, 970 (N.Y. Just. Ct. 1988) (“The traditional restriction in
personal property cases[,] that the cost of repair should not exceed the market . . . 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.”); Quave v. Bardwell, 449 So. 2d 81, 84 (La.
App. 1984) (discussing factors considered to calculate value of plaintiff's dog and approving discretion of trial court in determining damages); Demeo v. Manville, 386 N.E.2d 917( II 1979) (trial court properly permitted plaintiff to testify about dog's value based on evidence of qualities
and commercial value); Wertman v. Tipping, 166 So. 2d 666 (Fla. 1964) (trier of fact could con28
McDonald v. Ohio State Univ. Veterinary Hosp., 644 N.E.2d 750, 752 (Ohio 1994); Landers v. Mun, of Anchorage, 915 P.2d 614, 619 n.13 (Alaska 1996) (“[T]he most fundamental rule of damages ...requires the allowance of
damages in compensation for the reasonable special value of such articles to their owner taking into consideration
the feelings of the owner for such property.” (quoting Bond v. A.H. Belo Corp., 602 S.W.2d 105. 106 (Tex. App.
1980)); Ramey v. Collins, No.99 CA 2665. 2000 WL 776932 at *. *3 (Ohio App. June 5, 2000) (noting that the “actual value to the owner” standard is “more elastic” and permits dog owners to testify about dog's “value”).
29
McDonald, 644 N.E.2d at 752.
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sider dog's special value to owner); Green v. Leckington, 236 P.2d 335, 337 (Or. 1951) (plaintiff
allowed to prove special value of dog by evidence of qualities, characteristics, and pedigree);
Paguio v. Evening J. Ass 'n., 127 N.J.L. 144 (1941) (special damages for killing of dog). Thus, a
large number of cases, from courts across the country, support the application of the “actual value” measure of damages where defendants kill or injure plaintiffs' animals and where plaintiffs
can prove that value.
Even though this damages calculation is based on an evaluation of traits and relationships, it is a
matter of common law that damages will not be denied merely because they cannot be reduced to
a mathematical formula. Jacqueline's Wash., Inc. v. Mercantile Stores Co., 498 P.2d 870, 871
(Wash. 1972) (“[R]ecovery of substantial damages is not to be denied merely because the extent
or amount thereof cannot be ascertained with mathematical precision, provided the evidence is
sufficient to afford a reasonable basis for estimating loss.”); Rest. (2d) Torts § 912 (1979) (“[A]n
injured person [should] not be deprived of substantial compensation merely because he cannot
prove with complete certainty the extent of harm that he has suffered.”); Nicolet Instrument
Corp. v. Lindquist & Vennum, 34 F.3d 453, 455 (7th Cir. 1994) (summary judgment for defendant denied where legal malpractice plaintiff alleged “some harm” but could not quantify harm to
a “high degree of precision”); Nelson v. Krusen, 678 S.W. 2d 918, 928 (Tex. 1984) (Robertson,
J., concurring) (citing Rest. 2d § 912 for proposition that inability to prove extent of damages not
fatal in a negligence action). That is, the fact that damages may be somewhat difficult to measure does not diminish the loss to the plaintiff, especially when defendant has caused plaintiff's
loss. Nor do problems of valuation strip the court of its power to compensate a plaintiff for his
or her loss.
The “actual value” measure of damages is simply a reflection of the common law's recognition
of the need for special valuation of special “property” like Jellicle and Obi. For example, New
York courts have considered some of the aforementioned factors in assessing plaintiffs damages
in animal-related cases.30 In Brousseuu, plaintiff brought a negligence action against a kennel
arising from the death of her German shepherd. Plaintiff’s dog “was her sole and constant companion.”31 The court concluded that fair compensation required a reflection of the dog's “actual
value” to plaintiff because “plaintiff relied heavily on this well-trained watch dog, and never
went out into the street alone at night without the dog's protection.32 Brousseau held that “loss of
companionship is a long-recognized element of damages in [New York]” and directed the lower
court to “consider this as an element of the dog's actual value to this owner.”33 Explaining that
its valuation was simply a means of providing adequate compensation to plaintiff, the court noted it would be wrong to fail to acknowledge the companionship and protection the plaintiff lost
with the death of her canine companion.
Similarly, in Corso, the court permitted plaintiff to recover damages above the fair market value
of her companion animal. There, plaintiff hired defendant to prepare her dog for a funeral. Defendant actually disposed of the dog and delivered a casket containing the body of a dead cat.
30
Corso v. Crawford Dog & Cat Hosp. Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979); Brousseau v. Rosenthal,
443 N.Y.S.2d 285, 286-87 (N.Y. Civ. Ct. 1980).
31
443 N.Y.S. 2d at 286.
32
Id.
33
Id. at 286-87.
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Concluding defendant committed an actionable tort, the court had to determine the proper damages. Corso expressly rejected the notion that a companion animals is merely an heirloom to be
evaluated like any other fungible item. Instead, it found a special measure of damages was appropriate because “[a] pet is not an inanimate thing that just receives affection it also returns
it.”34
Courts in Illinois and Florida have also considered the plaintiff's attachment to a companion animal as a factor in calculating damages for loss of that companion. Jankoski v. Preiser Animal
Hosp., Ltd. applied the actual value standard in a veterinary malpractice action and held that the
trier of fact could consider some element of the sentimental value plaintiff felt for the companion
animal so that plaintiff could recover more than nominal damages which is what she would have
recovered if the dog was treated as standard property.35 Similarly, in LaPorte v. Assoc, Indep.,
Inc., a dog owner sued a garbage collector for the wrongful killing of her dog.36 The Florida Supreme Court permitted the owner to recover damages for emotional distress and stated, “[w]e
feel that the affection of a master for his [or her] dog is a very real thing and that the malicious
destruction of the pet provides an element of damage for which the owner should recover.” Id. at
269; see also Johnson v. Wander, 592 So. 2d 1225, 1226 (Fla. 1992) (recognizing claim for emotional distress after veterinarian mistreated dog); Knowles Animal Hosp., Inc. v. Wills, 360 So. 2d
37, 38-39 (Fla. 1978) (same); Womack v. Von Rardon, 135 P.3d 542. (Wash. App. 2006) (same).
ALDF's position here conforms to the doctrines discussed above that courts and legislatures have
been applying for years, and the common sense notion that the value of sentient, living beings
who provide significant companionship and form long lasting relationships with humans should
be measured in a very different way than inanimate pieces of property. By this suggestion,
ALDF is not contending actual value damages should be awardable for any case in which defendants wrongfully destroy or injure plaintiffs' property. Rather, ALDF contends that only because of the unique nature of this type of property - companion animals like Jellicle and Obi - the
overwhelming trend of case law supports an “actual value to the plaintiff” measure of damages
in cases where defendants kill or injure plaintiffs' animals, and where plaintiffs can prove the actual value of the animal. There is a growing consensus around the country that the legal system
must recognize the important role companion animals play in American society. Regardless of
the “property” designation, the traditional market value approach to damages no longer is viable,
as many courts and legislatures already have recognized. All relevant factors must be evaluated
if plaintiffs are to receive just compensation for the injuries they suffer in cases involving animals.
As numerous courts have already recognized, the traditional market value approach to damages
does not reflect society's values and does not adequately compensate a plaintiff when a defendant
wrongfully kills or injures the plaintiff's companion animal. There is ample legal authority for
this Court to award damages to plaintiffs based on the actual value of the companion animals to
them. ALDF urges this Court to consider the existing body of case law and to adopt the “actual
value” approach to Jellicle and Obi's valuation, thereby permitting plaintiffs to recover damages
that adequately represent their loss of these companions. If litigants in cases like this are to seek
34
Corso, 415 N.Y.S. 2dat 183.
157 Ill. App. 3d 818, 821 (1987).
36
163 So. 2d 267. 269 (Fla. 1964).
35
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out the courts for fair compensation for a loss suffered through the fault of another, the compensation awarded, to be considered fair, must reflect the value the litigants and our society places
on the loss. Anything less would not reasonably be considered fair.
. . . [END]
NOTE: A .pdf version of the actual amicus brief is posted to the class web site.
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