Chapter 7 Tort Law Affects Pet Law
"A man has honor if he holds himself to an ideal of conduct though it is inconvenient, unprofitable, or dangerous to do so."
—Walter Lippmann
According to the American Veterinary Medical Association, only 2.1 percent of pet owners view their animals as property, while 97.9 percent view them as family members or companions. Americans spend $28 billion annually on veterinary care. The evolving jurisprudence of tort law relating to companion animals is addressed in this chapter, together with what can be taken away from these tort cases and applied to family law in the pet law context.
OLD CONCEPTIONS OF ANIMALS
As companion animals become part of the modern family, some courts rigidly follow old common laws and precedents that reflect a different conception of companion animals. The 19th-century view is best captured in Sentell v. New Orleans Carrollton Railroad Co.1 There, in the hierarchy of beings, dogs were quasi-property below horses, sheep, and other domesticated animals, and also below the category of animals kept for pleasure, curiosity, or caprice. The Sentell court only elevated a dog from quasi-property to lower tier property status if the dog was killed or subdued. There was no such restriction on horses.
HOW ANIMALS ARE VALUED
The question of damages awarded pursuant to a tort law claim could impact pet custody disputes when the rule of law is based more on principles of economic justice, something very rational that can be weighed and measured, rather than on principles that involve comprehending something more difficult, such as love, pain, emotion, and attachment.
If animals lack extrinsic or intrinsic value,2 why should they be saved? Why should worthless animals be the subject of costly ownership disputes? This economic mentality might lead an owner to make a decision not to operate on a dog that cost very little but to operate on a dog that was expensive. This point of view also puts good veterinarians in poor positions when recommending a costly treatment in a situation where the value of a dog is thought about in purchase price economic terms. American culture is conflicted as to whether relational value or economic value is more important.
An example of what happens when pets are undervalued was exemplified by an action brought against a veterinarian in northern Minnesota. This veterinarian routinely overlooked the pain implications of surgery for cat declaws and other painful surgical procedures. Following a complaint against this veterinarian by the Minnesota Board of Veterinary Medicine, the board made a groundbreaking decision regarding the duty for a veterinarian to manage pain,3 though "initially centered on allegations of an orthopedic procedure gone bad."4
TORT CLAIMS
When a tort action is initiated, the way the action is framed varies from state to state. For example, a claim may be brought based upon veterinary malpractice,5 companionship loss, products liability, tortious interference with a contractual right, negligent or intentional infliction of emotional distress, a conversion claim, or the new tort of outrage. In addition to the variations in claims, payers for damages also differ.
Economic Damages
Damages in tort law fall into three categories: economic, noneconomic, and punitive. With regard to economic damages, lawyers may request any kind of out-of-pocket expense or loss related to the companion animal. This may include purchase price, the cost of veterinary care and prescriptions, pet food and toy purchases, training and behavioral costs, expenditures for doggie daycare and grooming, loss of economic opportunity related to breeding, and the cost for a replacement animal. A lawyer might advocate that there is a relationship between how much money was spent on a companion animal and what the companion animal is worth to the owner.6
Do not be surprised if one court limits a claimant's economic loss to the fair market value or replacement value of the pet, while another court might add to this value what the court considers to be reasonable costs for veterinary services, while still others might be receptive to utilizing a broad spectrum of measures. The Texas court prefers that damages be based upon an animal's "true value," which leans on an agrarian usefulness analysis.7
Other courts embrace the idea that an animal may have a special economic value or intrinsic value,8 especially when the fair market value or replacement value of the animal is difficult to ascertain. Relational or companionship value could be an aspect of economic loss, following the lead in the Brousseau v. Rosenthal9 bailment decision. There, the court reasoned that "a good dog's value increases rather than falls with age and training." If, as you read on, you wonder if there is a clear line between the concepts of economic and noneconomic loss pertaining to companion animals, be comforted by the idea that there is not.
Noneconomic Damages
While it can be expected that courts will permit a claim for economic loss, it is less predictable when courts will allow a claim for a noneconomic loss. Unless the court refuses to entertain this type of claim altogether, the court focuses on the human's suffering to the exclusion of the companion animal's suffering.10 The court then determines whether the criteria for emotional distress has been satisfied, for example, by deciding whether the dog is a family member and whether the human who suffered the loss was within the zone of danger when the animal was harmed. How courts might address noneconomic loss is not static.
A landmark case on the subject of damages was LaPorte v. Associated Independents, Inc.,11 a case where a garbage collector maliciously hurled a garbage can at a tethered and pedigreed Dachshund named Heidi; this action caused not only the dog's death but also the mental suffering of Heidi's owner.12
Courts seem to be in a catch-22 with regard to the concept of sentimental loss. For example, in 1987, the Illinois court in Jankoski v. Preiser Animal Hospital, Ltd.13 observed that the state of Washington shunned consideration of the sentimental value of companion animals.
By contrast, loss of companionship was permitted as an aspect of sentimental value in the Pennsylvania decision of Daughen v. Fox,14 a case where a dog died following an X-ray mix up by the veterinarian,15 an error that was covered up. The court rejected the traditional formula for calculating damages because this method failed to take into account the reasonable and necessary costs for veterinary treatment. Finding that the typical personal property damages analysis approach was unjust, the trial court reasoned that the better method was to consider the intrinsic value of the animal because the value of an animal to the animal's owner may increase over time rather than decrease. Another sign of the changing times took place in Broward County, Florida. There, the court awarded a Rottweiler owner $20,000 based upon the dog's intrinsic value when a kennel failed to timely get the dog appropriate care for a respiratory condition.16
Damages awards for noneconomic losses in medical malpractice cases may include amounts for pain and suffering, disfigurement, and loss of consortium. In veterinary malpractice cases,17 compensation for noneconomic losses is rare.18
While courts have traditionally permitted awards of sentimental damages when a family heirloom is destroyed, the court may be averse to granting these types of damages for the loss of companion animal property.19 Court rationales on this subject can be both difficult to follow and hypocritical. The court rejected consideration of the provision of sentimental damages in Zager v. Dimilia,20 a case where an animal was injured when another dog broke loose from a tether.
Some judgments reflect the unique or special value of an animal to an owner. In a California case, a party was awarded $30,000 for the loss of his mixed breed dog, together with another $9,000 for veterinary bills.21
The court created "the unique approach" in Campbell v. Animal Quarantine Station,22 a case that is almost emblematic of every pet owner's worst nightmare. Through the court's unique approach, the court enabled a pet owner to recover on a mental distress claim following the negligent destruction of animal property baked under the hot sun during transport.
It should also be noted that Tennessee has allowed some compensation for companionship loss.23 This statute is subject to a ceiling and an exclusion. Now, all eyes are on how noneconomic damages claims will evolve.24
Punitive Damages
In addition to claims for economic and noneconomic damages, a lawyer might seek punitive damages, which seem to be granted in tort cases involving animals more often than one might expect. Perhaps the very courts who will not permit noneconomic damages are troubled when there is a wrong without a remedy. The behavior of the defendant, rather than emotional harm to the plaintiff, may be the test for punitive damages.25
TORT TRANSFORMATION
Tort law is out in front of other substantive areas when it comes to pushing past the boundaries of old conceptions about the value of a companion animal being limited to the animal's replacement cost.26
A good example of how existing common laws are being transformed or modified can be found in Price v. Brown.27 When an English Bulldog died following a surgical procedure, the appellate court rejected a bailment claim, which is the type of claim typically brought against an automobile mechanic if the car ran when the car was brought in but was inoperable thereafter. The bailment action made no sense to the court in a claim involving a dog alive when brought to a veterinarian and then dead. The court thereby adopted the tort-based medical malpractice approach.
The dissenting judge in Price v. Brown still advocated the bailment approach.28 Justice Castille said that it was well-suited for an action involving...
