Animal Liability and Guardianship Issues

Animal Liability and Guardianship Issues

As more and more people consider their pets to be another member of the family, many groups are attempting to posit new legal theories, granting additional legal protections to animals, and changing the legal status of animals.Throughout history, pets have been considered property, and animal owners had control over their animal’s care, housing and training. Attempts at changing the legal status of animals has included efforts to replace the term “owner” with the term “guardian,” and an additional effort to enact laws to permit increased compensation in the case of a pet’s loss or injury, including compensation for “non-economic” damages, which can include damages such as emotional distress or loss of companionship.

Non-Economic Damages

Historically, injury or loss of an animal could result in the owner receiving an award of economic damages usually consisting of the market value (typically the purchase price or replacement cost) of the animal, veterinary care, training costs, breeding costs, loss of breeding income, and/or other measurable monetary costs. This type of damage award can be objectively calculated as the financial losses associated with an injury. Common law has historically awarded only economic damages for the loss or injury to an animal.

In contrast, non-economic or special damages are damages that are more subjective and attempt to place a value on such intangibles as “pain and suffering,” sentimental value, or loss of companionship. Other types of damages include punitive damages, which may be sought as a form of punishment or deterrence and are often awarded in human injury or wrongful death actions. Non-economic damages can often be substantial and are generally not based on the monetary value of the pet, and are increasingly being sought in animal wrongful death and injury actions.

Proponents of non-economic damages base their position on a number of arguments, including the following:

• If allowing non-economic damages results in enhanced damage awards, care for animals will be improved by deterring provision of substandard care.
• Awarding these type of damages will bring damage awards in line with the value society has placed on relationships between people and their pets --the emotional value of the animal to its owner often far exceeds a pet’s economic or "replacement" value.
• The legal doctrine of companion animals as property is archaic and fails to reflect the human-animal bond and the modern social view of companion animals.
• Some proponents argue that the emotional bond between humans and their petscan equal the bond experienced between humans, and that pets are often treated as members of the family. Therefore, damage awards based solely on the economic cost of the animal are inherently inadequate.

Many animal rights lawyers also argue that punitive or exemplary damages should be awarded in animal wrongful death or injury cases. Punitive damages are awarded to a plaintiff over and above compensatory damages, whether economic or non-economic. Punitive damages are intended to punish the wrongdoer and to deter others from future similar wrongful actions. The few court cases that have allowed non-economic damages in animal related litigation have done so when the wrongful conduct was willful, intentional, wanton or grossly negligent.

In contrast, there are also a number of reasons why this type of recovery should not be awarded, with the most significant being that increased costs will be ultimately passed on to the consumer through increased costs for the care of their pets:

• Expansion of available remedies involving animals beyond economic damages will increase costs for delivery of veterinary care and other animal related products and services. The classification of companion animals as more than property would have a tremendous impact on the veterinary profession. The experience of the human medical community indicates that non-economic damage awards drive increases in litigation, verdicts and insurance premiums. The potential exposure to increased non-economic damages could lead many animal doctors to the practice of defensive pet medicine, just as it has in the human arena. Cost increases, however, will not be limited to those associated with veterinary care. Consumer costs for many animal-related services and products could increase, including the price of boarding, grooming, training, medication, food and other pet products. Although many people consider pets as part of the family, it is known that a substantial number of pet owners make choices about the continuation of veterinary care, based on price. For example, prohibitive costs may keep some pet owners from spaying and neutering their pets. Increased costs are likely to reduce interest in seeking animal-related services and products, thereby harming animals in the process, and perhaps causing more animals to be put down. The value of human-animal relationships would be placed above that of most human relationships. Allowing recovery of non-economic damages in litigation involving animals would place the value of human-animal relationships above that of most human relationships. Under existing law, non-economic damages, such as emotional distress or loss of companionship are only permitted for the injury or death of an immediate family member, such as a spouse, child or sibling and are generally not available for injury or loss of other close personal relations such as grandparent, cousin or best friend. Therefore, to allow these types of damages in animal related cases would elevate the status of a pet above a human friend or beloved family member. Furthermore, non-economic damages are generally allowed only when the defendant commits an outrageous act with the intent or purpose of causing emotional distress to the plaintiff.
• Non-economic damages are not available for loss of, or damage to property. In virtually every jurisdiction in this country, animals are considered to be property and have historically been treated as such. As the common law has developed in America, non-economic damages are not available for the loss of property. Expanding the law to allow recovery of non-economic damages for animals would go against hundreds of years of legal precedent, and could lead to many unintended consequences. (See the discussion on guardianship, below.)
• Obstacles in determining awards. If non-economic damages were available for injury to or loss of animals, calculating such claims would be difficult and burdensome. Evaluation of such claims would be on a subjective basis and qualifying and quantifying potential damages would invite courts to delve into mere speculation as to the emotional value of a pet which could range anywhere from $1 to “priceless.” Other difficulties include determining what classes of animals for which recovery should be allowed. In calculating the loss of an emotional bond, does one have the same bond with their goldfish or pet hermit crab as their dog and cat? Should damages for a goldfish be the same as for a dog, if a person states they have the same emotional attachment?
• Experience in human medicine with large non-economic damage awards has discouraged the practice of medicine. Many believe that large, non-economic damage awards have had the effect of discouraging the practice of medicine in the human community. In some geographic areas or practice fields physicians have stopped practicing, due to the expense and disruption of litigation. The AVMA has taken a position on this issue and believes that the veterinary profession will be faced with similar issues should recovery of non-economic damages be allowed for animals. The AVMA does not believe allowing non-economic damage awards will improve the quality of animal care.
• Non-economic damages could lead to unintended consequences for the public. The public could be liable for unintended consequences over which they have no control. For example, if a dog is injured on an individual’s property, or runs out onto the street getting hit by a car, or eats poisonous material on another property, individuals may be liable for damages, which they could not predict. A pet owner whose dog attacks another animal, even if was out of character for the pet, may face non-economic damages that are unforeseeable. In the more extreme example this could apply to law enforcement officers protecting themselves against potentially dangerous pets. Under this approach, it is likely that the cost of homeowner insurance for households with pets would rise in order to cover the risk of enhanced damages.

States That Have Proposed Laws Allowing for Non-Economic Damages

Tennessee. In 2000, Tennessee became the first state to enact legislation that allows companion animal owners to recover for emotional injuries when their pets are wrongfully killed. The measure allows pet owners to recover up to $4,000 in non-economic damages if a person's pet is killed or sustains injuries which result in death caused by the unlawful and intentional, or negligent, act of another. The statute narrowly defines 'pet' as any 'domesticated dog or cat normally maintained in or near the household of its owner.'  In addition, the statute compensates for loss of expected society, companionship and love and affection of the companion animal. The Act includes a provision that excludes veterinarians from liability for professional negligence. It includes a geographic limitation that declares that the statute 'shall apply only in incorporated areas of any county having a population in excess of seventy-five thousand.’

Legislation for non-economic damages has been introduced in the following States: CA, CO, MA, MI, MS, NJ, NY, OR, PA, and RI. Connecticut and Illinois specifically authorize punitive damages, but not non-economic damages.

In some lawsuits judges have awarded non-economic damages. See, for example, http://www.animallaw.info/articles/qvuspetdamages.htm for a discussion of cases that have departed from traditional damage awards.

Additional Resources

For a list of State Statutes relating to companion animal damages see the University of Michigan Law School Animal Law site

See also the Council of State Governments —adoption of Resolution on Animal Liability and Guardianship 

The National Association for Biomedical Research (Animal Law Section) has numerous resources on this topic.

Guardianship

Certain animal rights groups would also like to change the terminology from “pet owners” to pet “guardians”. These groups believe that if you care for an animal you are the guardian of the animal, and that you do not own the animal as property; but have limited temporary possession for the benefit of the ward, i.e. the pet. This change, although initially appearing to be a harmless use of semantics, is one actually another step in the effort toward changing the legal status of animals and may have the effect of imposing additional legal obligations on animal owners.

• Guardianship Is A Legal Concept-The law of guardianship, at least with regard to human guardians, has specific legal obligations to act for the benefit of the ward. Although the groups that are supporting this language change are not suggesting changing legal obligations of a guardian, the legally defined responsibilities of a guardian may not work in the context of caring for animals. For example, if an animal guardian chooses not to continue veterinary treatments, a third party, such as an animal rights group could petition a court to require continuation of treatment, claiming that it was in the best interest of the animal. This would limit a pet owner’s choice in determining the care provided for their pet. Third parties could also petition a court to prevent animals from being spayed, neutered, given away or even bred. Similarly, a guardian might need some kind of approval before seeking to put a terminally ill pet to sleep.
• Animal guardianship is a very unsettled area of the law and numerous issues may developif pet owners are casually transformed into pet guardians. For example, can a veterinarian make the decisions for an animal’s care? What if a guardian and veterinarian disagree about a pet's care? Will pets have legal standing to sue their guardians for failure to provide care as humans can under present guardianship law? Can guardians be divested of their property rights? Who would pay for the care of divested pets? Who would pay for veterinary treatment, if the veterinary care was not approved or requested by the guardian?
• Initiated by Animal Rights Groups- Spearheading the efforts to change owners to guardians are animal rights activists. A typical mission statement of one of these groups states that it is “an international animal protection organization dedicated to ending the exploitation and abuse of animals by raising the status of animals beyond that of mere property, and by defending their rights, welfare and habitat.” By changing the language that we use to define our relationships with animals, these groups hope to shift the perspective away from thinking about animals as mere property, and endowing pets with human-like legal rights, that recognize animals as individuals with feelings, needs and interests of their own.  The proponents of animal guardianship laws see this effort as the first step on the road to ending the concept of pet ownership.
• Punishment Exists For Animal Cruelty- One of the arguments that the animal rights groups make in support of guardianship laws is that by treating animals as property they have no more rights than inanimate objects. However, virtually every state, as well as the federal government, has animal cruelty laws that protect animals against cruelty and abuse. Most states deem it an act of cruelty, for instance, to "overdrive, overwork, or work an animal when it is unfit for labor." Abandonment, poisoning, and failure to supply animals with adequate food, water, and shelter are also identified as crimes in many state anti-cruelty laws.
• The American Veterinary Medical Association (AVMA) has taken a position against changing the term 'owner' to 'guardian' stating that there is no evidence 'guardianship' enhances the relationship between owner and pet. In their policy statement the AVMA states that “The American Veterinary Medical Association promotes the optimal health and well-being of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners does not strengthen this relationship and may, in fact, diminish it. Such changes in terminology may decrease the ability of veterinarians to provide services and, ultimately, result in animal suffering”.
• The Council of State Governments recently adopted a policy opposing animal guardianship, as well as tort law reforms entitling owners to compensation for emotional distress and loss of companionship. Copies of the policy were distributed to federal and state agriculture committee members and all state agriculture commissioners. The expectation is that legislators will use the policy to pass laws against both legal theories. The CSG, a national organization that advises the executive, judicial, and legislative branches of state government on matters of public policy, approved the statement as a means of preparing states for what is seen as the latest front in the animal rights campaign. The CSG policy states in part: “guardianship statues would undermine the protective care that owners can provide for their animals and the freedom of choice owners now are free to exercise, and could permit third parties to petition courts for custody of a pet, livestock or animal for which they do not approve of the husbandry practices; and would permit challenging in a court of law the course of treatment an animal’s owner and veterinarian decide on, or permit animal owners and veterinarians to be sued for providing what another individual may regard as inadequate care”
• Community Acceptance- In July 2000, Boulder County, Colorado, was the first jurisdiction in the nation to amend their county ordinance by adopting the change in terminology from "animal owner" to "animal guardian." Other counties and municipalities have followed Boulder County's lead, including San Francisco, Berkeley, Albany, West Hollywood and Marin County California; Sherwood, Arkansas; Amherst, Massachusetts; Menomonee Falls, Wisconsin; Woodstock, New York; St Louis Missouri; Bloomington, Indiana; Wanaque, New Jersey, and the State of Rhode Island.