Full Title Name:  Catching the Unique Rabbit: Why Pets Should Be Reclassified as Inimitable Property under the Law

[d]ogs and other companion animals (hereinafter companions) are amazing beings. Our companions with whom we share our lives typically *186 have unqualified trust in us--they believe we will always have their best interests in mind, they love us unconditionally when they choose to love us, and they would do almost anything for us. And, indeed, often they do, taking care of us and causing themselves harm in selflessly doing so. [FN117]

[FNa1] . J.D. expected, May 2009, Cleveland State University, Cleveland-Marshall College of Law; B.A. Mount Union College. The Author would like to acknowledge the constant support, love, and guidance of her family, especially her mother, Toni, and grandmother, Connie, who have believed in her unfailingly. The Author would also like to thank the members of the Cleveland-Marshall faculty and staff for their helpful comments and advice.

[FN1] . In this Note, the terms pet or pets (unless noted otherwise) refer specifically to the most widely recognized and typical companion animals: dogs and cats. Although humans keep a number of other species as pets, such as rabbits, birds, fish, or other exotic species of animals, this Note argues in further detail that the unique qualities of the domestic cat and dog set them apart from other types of pets or owned animals, such as typical farm animals or livestock.

[FN2] . Alan Feuer, Helmsley, Through Will, Is Still Calling the Shots , N.Y. Times , Aug. 30, 2007, available at http:// www.nytimes.com/2007/08/30/nyregion/30leona.html? em&ex=1188619200&en=49f49958da2265fc&ei=5087%0A. Leona Helmsley was married to Harry Helmsley, one of the most prominent figures in American real estate. Richard Hammer, The Helmsleys: The Rise and Fall of Harry and Leona 37 (1990). Although widely believed to be the owner of the Empire State Building, Harry is actually credited with successfully running and operating the building for many years. Id . at 54. Known for driving a hard bargain, Helmsley owned many large residential structures and amassed a fortune; sometimes, the contributions to his opulence came in the form of evicting elderly tenants who had forgotten to pay their rent. Id . at 97-98. Leona was a real estate broker when the two met, and after Harry left his wife of thirty-three years and offered Leona a position as senior vice president in one of his companies, the two were eventually married. Id . at 137, 149. In addition to residential properties, Helmsley also owned many hotels in New York and other states. Id . at 175. Eventually, Leona became president of all the hotels they owned and earned a nasty reputation herself for her extravagant demands and haughty demeanor. Id . at 174, 181. One former associate described Leona's character by stating, “She can exude such warmth and love you feel you are being embraced by this rich, glamorous, sexy lady. Then in an instant, she can turn so vicious and verbally violent that you are left flabbergasted.” Id . at 182.

[FN3] . See Feuer, supra note 2.

[FN4] . See id., supra note 2. It is impossible to leave money to a pet directly through a will as this type of bequest will be declared void and the money intended to go the animal would go to either the residuary or a different beneficiary in the will. See Margaret C. Jasper, Pet Law 47 (2007). Courts will declare these bequests void because animals are still personal property, and one cannot conceivably leave property to another form of property. Id . Furthermore, only a little more than half of the states will even allow pet trusts to be established. Id . at 87. These states include: Alaska, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming. Id .

[FN5] . See Feuer, supra note 2.

[FN6] . See id . It was not until his later years that Harry Helmsley was more philanthropic. See Hammer , supra note 2, at 220. Although the Helmsley's had contributed to charities before, the amounts were almost always modest. Id . One late-in-life stand-out was a gift of $33 million to a New York hospital that had treated Harry for cardiovascular problems. Id . at 221. At the time the gift was made it was one of the “largest gifts ever made by an individual to a single institution.” Id .

[FN7] . See Feuer, supra note 2. During her life, Helmsley was known for mistreating her employees, yet she also donated millions of dollars to Hurricane Katrina relief, September 11th funds, hospitals, and made other large and anonymous donations. CNN, Leona Helmsley, ‘Queen of Mean,’ Dies at 87 , http://www.cnn.com/2007/US/08/20/helmsley.obit/index.html (last visited Nov. 30, 2007).

[FN8] . The current trend in animal law articles and texts is to use the term companion animal instead of pet , and guardian instead of pet owner . Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort , 70 N.Y.U. L. Rev . 1059, 1059 n.2 (1995). This author will use the terms pet and companion animal interchangeably, but because the thrust of the argument in this Note is that pets should remain classified as property, the term owner will still be used. Id .

[FN9] . See Feuer, supra note 2.

[FN10] . See Diane Brady & Christopher Palmeri, The Pet Economy: Americans Spend an Astonishing $41 Billion a Year on Their Furry Friends , Business Week , Aug. 6, 2007, available at http://www.businessweek.com/magazine/content/07_ 32/b4045001.htm?chan =search.

[FN11] . See People v. Burnett, 2 Cal. Rptr. 3d 120, 124 (Ct. App. 2003). Although this is a criminal case, in the state of California an owner is not allowed to recover noneconomic damages for the loss of a pet. See Victor E. Schwartz & Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule , 33 Pepp. L. Rev . 227, 236-37 (2006). Burnett was convicted of animal cruelty for causing the death of a ten-year old Bichon Frise. Burnett , 2 Cal. Rptr. 3d at 123. After the owner of the dog committed a small traffic violation which caused her to bump into Burnett's back bumper he got out of his car and as he approached the car the owner rolled down her window. Id . When Burnett got to the car he reached in the open window, grabbed the small lap dog out the owner's lap and threw the small dog into the highway. Id . It was raining heavily that night and after being thrown across traffic the dog was disoriented. Id . In attempting to get back to his owner's car the Bichon was struck and killed by an oncoming motorist who did not see the small dog. Id . at 124. These events took place in front of the distraught owner, who was almost hit by a car when attempting to cross traffic to get to the stranded and bewildered dog. Id . at 123-24.

[FN12] . Gluckman v. Am. Airlines, Inc., 844 F. Supp. 151, 163 (S.D.N.Y. 1994). On a camping trip in 1988 Andrew Gluckman found an abandoned golden retriever. Id . at 153. Gluckman named the dog Floyd, adopted the dog as his pet, and intended to bring the dog back to New York with him. Id . at 154. Gluckman paid an additional $110.85 for a special crate and carrying charge for Floyd but was never informed that the airline treated dogs like any other type of baggage. Id . On the day of Gluckman's flight, his plane was delayed for over an hour due to a mechanical problem. Id . During the delay, the plane sat on the ground in a temperature of 115 degrees Fahrenheit. Id . The temperature in the baggage hold of the plane, where Floyd was being kept, reached over 140 degrees Fahrenheit. Id . When Floyd was brought to Gluckman to be placed on the next flight the dog was “lying on his side panting; his face and paws were bloody; there was blood all over the crate; and the condition of the cage evidenced a panicked effort to escape.” Id . Floyd died from being kept in these horrific conditions. Gluckman brought suit seeking emotional distress damages and loss of companionship of his pet (among other claims), but his claims were dismissed and he was denied recovery. Id . at 154, 163.

[FN13] . Many courts, including those in Arizona, California, Connecticut, Indiana, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, North Dakota, Ohio, Oregon, Pennsylvania, Texas, Virginia, Washington, West Virginia, and Wisconsin have neither allowed a pet owner to figure in their emotional distress when calculating damages for a lost pet, nor allowed the owner to recover under a separate cause of action for intentional or negligent infliction of emotional distress. Schwartz & Laird, supra note 11, at 236-37.

[FN14] . One source estimates that over eighty million dogs are put to sleep every year in pounds and animal shelters because of behavioral problems. Dog Scouts of America, Responsible Dog Ownership , http:// www.dogscoutsl.com/Responsible_Ownership.html (last visited Dec. 19, 2008). These problems stem from both poor training and abandonment. Id . Such a large number of previously owned dogs being put to sleep before a second owner could be found suggests the lack of a healthy market for a previously owned pet. Id .

[FN15] . For an example of animal rights being viewed as infamous, see Jonathan R. Lovvorn, Animal Law in Action: The Law, Public Perception, and the Limits of Animal Rights Theory as a Basis for Legal Reform , 12 Animal L. 133, 138 (2006) (“[F]ear of animal rights--and of animal rights activists--is undoubtedly fueled, at least in part, by the violent extremists of the movement and the spectre of direct action, which is also sometimes called animal ‘terrorism.”’).

[FN16] . See American Veterinary Medical Association, Poll Finds Americans Cool Toward Animal Rights , JAVMA News , July 15, 2003, available at http:// www.avma.org/onlnews/javma/jul03/030715f.asp (last visited Feb. 7, 2008) (“A Gallup poll testing public reaction to several animal rights goals found that most Americans aren't willing to fundamentally change their views about animals ... [evidenced by a] majority--71 percent--[of those polled believing] animals are entitled to some protections from harm and exploitation, [while only] 25 percent think that animals deserve the same rights as people.”). This poll shows that the concept of animals having the same amount of rights of humans is too new and foreign in comparison to current popular mentality. Id .

[FN17] . Compare Aristotle, Politics, in Animal Rights: A Historical Anthology 6, (Andrew Linzey & Paul Barry Clarke eds., William Ellis trans., 2004) (stating man is the most excellent of all living creatures, and animals, lacking speech or a political or moral sense of good or evil, are inferior), with Norm Phelps, The Longest Struggle: Animal Advocacy from Pythagoras to PETA, 26-27 (2007) (recounting that the ancient philosopher, Pythagoras, most known for his work in geometry, was also well known in ancient times as an advocate for a vegetarian lifestyle and diet because he believed, and taught, that all sentient beings have souls of equal worth).

[FN18] . See generally Animal Rights: A Historical Anthology (Andrew Linzey & Paul Barry Clarke eds., 2004).

[FN19] . Gary L. Francione, Animals, Property, and the Law 41 (2d ed. 2005).

[FN20] . Id .

[FN21] . Id .

[FN22] . Id . Additionally, exclusive ownership was also contingent upon the need of tame animals to have a caretaker. Johann Gottlieb Fichte, The Science of Rights, in Animal Rights: A Historical Anthology 79-80 (Andrew Linzey & Paul Barry Clarke eds., Columbia University Press 2004). The domestication of animals created an obligation in the owner to not only reap the benefits of the animal, but also to feed, protect, and perform all the actions that wild animals are capable of that domestic animals are not. Id .

[FN23] . Francione , supra note 19, at 42. In a case dating back to 1868 the Supreme Judicial Court of Massachusetts opined:

In regard to the ownership of live animals, the law has long made a distinction between dogs and cats, and other domestic quadrupeds, growing out of the nature of the creatures and the purposes for which they are kept. Beasts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep, are as truly property of intrinsic value, and entitled to the same protection, as any kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild natures and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner ... [and that] dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals.

[FN24] . See Juliet Clutton-Brock, Domesticated Animals from Early Times 62 (1981).

[FN25] . See Francione , supra note 19, at 34. The words chattel, capital, and cattle at one time were all synonymous in European languages. Id . The Spanish word for property is also virtually the same as the word for cattle. Id . The same holds true in the Latin language where the word for money is a derivative of the word meaning cattle. Id .

[FN26] . Id . at 28.

[FN27] . As recently as 2005, a court in California allowed victims of cattle theft to recover four times the worth of the cattle. People v. Baker, 23 Cal. Rptr. 3d 871. 876 (Ct. App. 2005). Ultimately the defendant was held liable in the amount of $22,521 for depriving the owners of the use of cows that might produce valuable offspring. Id .

[FN28] . See supra note 23.

[FN29] . See supra note 23. In contrast with cats and dogs, cows historically have and presently do provide milk, butter, cream, cheese, and beef. Clutton-Brock KK, supra note 24, at 62. If the cow is primarily a draught animal it is used to plow and can provide small amounts of milk. Id . When the animal loses utility as a plow animal it can be used as a source of food. Id . While alive, the cow also provides a source of free fertilizer for crops through production of manure. Id . In addition, the carcass of a cow serves many purposes, including the use of horns, bones, and hide for weapons and clothing; fat can be used to make into candles for lighting, and the hooves can be used to produce glue. Id .

[FN30] . Over the course of the past 100 years the number of Americans farming as a profession has declined, although the latest statistics are only available from 1990, it seems reasonable to assume that in the past nineteen years farming as a profession has remained the same or declined even further. Economic Research Service, A History of American Agriculture, 1607-2000: Farmers and the Land (2000), available at http:// www.agclassroom.org/gan/timeline/farmers_land.htm.

[FN31] . Id .

[FN32] . In 2007, the pet industry was worth $41.2 billion, almost double what it was worth ten years ago. See American Pet Products Association, Industry Statistics and Trends: Pet Ownership , 2007/2008 APPA National Pet Owners Survey (2008), available at http://www.americanpetproducts.org/press_ industrytrends.asp (last visited Feb. 1, 2009). On top of an overall increase in the total worth, many companies such as Paul Mitchell (hair care) Harley Davidson (motorcycles) and Old Navy (clothing retail) have product lines available that are specifically designed for family pets. Id . Some hotels are beginning to offer plush pet beds and pillows, soft bathrobes for dogs, and treat bags for pets accompanying their owners on vacations. Id . There is also a market for high-tech pet gadgets, including electronic toothbrushes, automatic feeders, touch activated toys, and computerized identification tags. Id . Pet health is also a burgeoning new market with pet health insurance coverage, pet massages, and pet dance and yoga classes. Id . Executing a quick Google search by typing in “pet health insurance” returns six different companies on the first page that offer insurance services for pets. Google, http://www.google.com/search?hl=en&q=pet+health+insurance&btnG=Search (last visited Nov. 19, 2007).

[FN33] . See American Pet Products Association, Industry Statistics and Trends: Pet Ownership , http://www.americanpetproducts.org/press_ industrytrends.asp (last visited Feb. 1, 2009). See also Elizabeth Paek, Fido Seeks Full Membership in the Family: Dismantling the Property Classification of Companion Animals by Statute , 25 U. Haw. L. Rev . 481, 482-83 (2003) (“[M]ore than 80% of companion animal guardians consider their companion animals as family members ... [a]nother study revealed that 70% considered their companion animals as children.”); Lucy Jen Huang Hickrod & Raymond L. Schmitt, A Naturalistic Study of Interaction and Frame: The Pet as “Family Member,” 11 Urb. Life 55, 59 (“Persons behave toward pets as if they are family members. Pets are named, fed, groomed, photographed, talked to, protected, and mourned. Owners sleep and play with pets. They give them birthday parties [,] .... [r]ansom has been paid for pets ... and a dog has participated as the best man in a human wedding.”).

[FN34] . Evelyn Nieves, Foreclosures Lead to Abandoned Animals , FOX News , Jan. 29, 2008, available at http://www.foxnews.com/wires/2008Jan29/0,4670, ForeclosurePets,00.html.

[FN35] . Id . (“The problem is exacerbated because most people grappling with foreclosure are returning to rental housing or moving in with relatives-- two situations where it can be difficult or impossible to bring pets”).

[FN36] . Id . (“The abandoned pets are overwhelming animal shelters ... [in] Stockton and Modesto [which] have some of the nation's highest foreclosure rates.”).

[FN37] . Id .

[FN38] . See Paek, supra note 33.

[FN39] . See Rebecca J. Huss, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals , 86 Marq. L. Rev . 47, 89 (2002). See also William C. Root, Note, 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, 426-28 (2002) (stating that the fair market value of the pet is assessed before injury or death and is based on the amount a stranger at arm's length would be willing to pay for the pet based on pedigree, purchase price, general health and unique traits).

[FN40] . See Schwartz & Laird, supra note 11, at 243-46.

[FN41] . Paria Kooklan, Animal Law: Gaining Ground in the United States , 36 Student Law at 14, 15 (February 2008).

[FN42] . Id .

[FN43] . Id . at 16.

[FN44] . Id .

[FN45] . Gary Richard Collins II, Biography for Bob Barker , http:// www.imdb.com/name/nm0054837/bio (last visited Feb. 12, 2008).

[FN46] . See Kooklan, supra note 41, at 16.

[FN47] . Id . at 19 (noting one animal law expert, Stephen Wise, believes that as more people get on the bench who have been exposed to animal law those judges may be more willing to adopt newer ideas about animals without embarrassment).

[FN48] . See Schwartz & Laird, supra note 11, at 236-37.

[FN49] . Although “emotional distress” can refer to either a measure of damages in personal injury tort cases or a separate tort cause of action, the term, unless otherwise noted, is used here to encompass both definitions.

[FN50] . In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), the U.S. Supreme Court reviewed and explained the concept of emotional distress in relation to a Federal Employers' Liability Act (FELA) claim. Id . at 544. The Court explained that it must review the claim in light of common law principles and defined emotional distress as an injury that is. “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury.” Id . Although emotional distress is usually a state issue, for the purposes of this note an exhaustive review on a state by state basis of emotional distress laws is not necessary or prudent. As such, the use of a Supreme Court case which pre-empts state law is meant to be general enough to encompass the scope of the issue.

[FN51] . See Steven M. Wise, Recovery of Common Law Damages for Emotional Distress. Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal , 4 Animal L. 33, 50-56 (1998) (arguing that emotional distress is calculable and applicable as a measure of loss in wrongful death actions for the loss of a pet); Janice M. Pintar, Negligent Infliction of Emotional Distress and the Fair Market Value Approach in Wisconsin: The Case for Extending Tort Protection to Companion Animals and Their Owners , 2002 Wis. L. Rev . 735, 761-70 (2002) (arguing that the separate cause of action of negligent infliction of emotional distress should be extended to pet owners who have experienced the loss of a pet due to another's negligence).

[FN52] . The term “emotional distress” as a separate and distinct cause of action (as opposed to a category of damages) as used here encompasses both the tort of negligent infliction of emotional distress and intentional infliction of emotional distress.

[FN53] . With the exception of a few jurisdictions such as Hawaii and Alaska, many state courts have rejected arguments on the issue of expanding non-economic damages, or more specifically, rejected claims of emotional distress damages for pet owners who have experienced a loss. See Schwartz & Laird, supra note 11; Pintar, supra note 51, at 736.

[FN54] . The physical impact test is only used in a very small minority of American jurisdictions. Gottshall , 512 U.S. at 547.

[FN55] . The zone of danger test is followed in a minority, although not a small minority, of jurisdictions, and was the test adopted by the Supreme Court in the case at hand. The court chose this test because of historical considerations and the reduced possibility that claims could be falsified. Id . at 547-48, 554-58.

[FN56] . Id . at 547-48.

[FN57] . The relative bystander test comes from the California Supreme Court case of Dillon v. Legg , 441 P.2d 912 (1968), and the majority of jurisdictions in America have adopted this test. See also Gottshall , 512 U.S. at 548.

[FN58] . See Dillon , 441 P.2d at 920-21.

[FN59] . Gottshall , 512 U.S. at 549.

[FN60] . Id .

[FN61] . See Margit Livingston, The Calculus of Animal Valuation: Crafting a Viable Remedy , 82 Neb. L. Rev . 783, 825 (2004); Vasiliki Agorianitis, Comment, Being Daphne's Mom: An Argument for Valuing Companion Animals as Companions , 39 J. Marshall L. Rev . 1453, 1470-71 (2006).

[FN62] . See Ohio Rev. Code Ann . § 2125.02(B)(3) (West 2001).

[FN63] . Originally, when the victim of tortious conduct died, all related personal injury causes of action died with them. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 125 (5th ed. 1984). However, this precedent was presumed to give potential plaintiffs incentive to hack up and run over a victim again if the victim was still alive in order to avoid liability. Id . Legislatures remedied this situation by enacting wrongful death statutes and survival claims legislation so that family members may recover for both their loss stemming from the wrongful injury, and the loss to which the decedent would have been entitled, had he or she not passed away. See also McDavid v. United States, 584 S.E.2d 226, 231-32 (2003).

[FN64] . Wrongful death statutes vary from state to state, but in a majority of jurisdictions, are only reserved for relatives related by blood or marriage. See David D. Siegel, Wrongful Death Pleading and Procedural Disputes, in Wrongful Death Actions 1967, at 1, 4 (PLI Torts & Personal Injury Law, 1967); McDavid , 584 S.E.2d at 231 (“[G]eneralizations are not easy to draw among the fifty-one wrongful death statutes [in the United States], they are capable of being grouped into two major classifications: those representing the majority ... determine damages based on the loss to the survivors of the decedent or statutory beneficiaries ....”). Using Ohio as an example, the right of recovery is extended to “the surviving spouse, children, and parents of the decedent.” Clark v. Scarpelli, 744 N.E.2d 719, 731 (Ohio 2001). Also, these named people who are entitled to recover are “rebuttably presumed to have suffered damages by reason of the wrongful death ... [and the right to recover] arises as a result of the suffering incurred by reason of the wrongful death of the decedent.” Id .

[FN65] . See Siegel, supra note 64, at 2. Even though most wrongful death statutes are remedial in nature and thus generally entitled to liberal construction, courts often constrain their interpretations of the legislations based on legislative intent. See McDavid , 584 S.E.2d at 231-32. Because the purpose of wrongful death statutes is to reverse the harsh common law doctrine that would deny recovery for the decedent's estate or family, it is unlikely that any court would construe a wrongful death statute to extend to pets or pet owners.

[FN66] . Using Ohio as an example, as defined in the wrongful death statute, compensatory damages in a wrongful death action can include “[l]oss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, dependent children, parents, or next of kin of the decedent ....” Action for Wrongful Death: Ohio Rev. Code Ann . § 2125.02(B)(3). For loss of consortium, sec D. Richard Joslyn, Annotation, Wife's Right of Action for Loss of Consortium , 36 A.L.R.3d 900 (1971) (“Most courts agree that consortium includes such items as love, companionship, affection, society, comfort, solace, support, sexual relations, and services.”).

[FN67] . Joslyn, supra note 66, at 900.

[FN68] . Id .

[FN69] . See Geordie Duckler, The Economic Value of Companion Animals: A Legal and Anthropological Argument for Special Valuation , 8 Animal L. 199, 213 (2002) (“[E]ach animal life, apart from the rare instance of a celebrity animal, typically has a low value, with the majority being presumably valueless other than as food or apparel commodities.”).

[FN70] . In the defining punitive damage award case the Supreme Court refused to set a precise acceptable ratio for the value of punitive damages compared to compensatory damages. State Farm v. Campbell, 538 U.S. 408, 425-26 (2003). The Court did, however, hold that “[o]ur jurisprudence and the principles it has now established demonstrate ... few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process.” Id .

[FN71] . William A. Reppy, Jr., Punitive Damage Awards in Pet-Death Cases: How Do the Ratio Rules of State Farm v. Campbell Apply? , 1 J. Animal L. & Ethics 19, 47, 57 (2006).

[FN72] . Id . at 47.

[FN73] . Id . at 57.

[FN74] . Defendant's misconduct on which punitive damages are based must be heinous because such damages carry criminal punishment connotations. State Farm , 538 U.S. at 417. The Court has held that excessive punitive awards constitute an “irrational and arbitrary deprivation of the property of the defendant.” Id . at 429. The Court has articulated three guideposts for determining the reasonableness of a punitive award, “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id . at 418.

[FN75] . Id . at 416.

[FN76] . Id . at 419.

[FN77] . Id .

[FN78] . Id .

[FN79] . Id .

[FN80] . Id .

[FN81] . La Porte v. Associated Indeps., Inc., 163 S.2d 267, 269 (Fla. 1964).

[FN82] . Id . at 268.

[FN83] . Id .

[FN84] . Alaskan courts have recognized that punitive damages are recoverable in an action for the death of a pet, however only a handful of other states allow the action at all, and many of the decisions are archaic. See, e.g. , Landers v. Municipality of Anchorage, 915 P.2d 614, 620 (Alaska 1996); Parker v. Mise, 27 Ala. 480, 481-82 (1855); Mendenhall v. Struck, 224 N.W. 95, 98 (Iowa 1929); Loeser v. Axtin, 12 Ky. L. Rptr. 636, 636 (1890); Tenhopen v. Walker, 55 N.W. 657, 657-58 (Mich. 1893).

[FN85] . See Ariel Simon, Cows as Chairs: Questioning Categorical Legal Distinctions in a Non-Categorical World, in People, Property, or Pets ? 7 (Marc D. Hauser et al., eds., 2005) (“An ethical approach to animal rights, in other words, would defy any type of gross generalization, whether it comes in the form of treating animals all as rights-bearing equals or as a morally impoverished form of property. Animals are better understood as dependents ...”); Paek, supra note 33; Root, supra note 39.

[FN86] . See Paek, supra note 33, at 483 (“The relationship between an animal guardian and a companion animal is similar to a parent and child ... the law recognizes and protects the relationship between family members ... and ... courts should recognize that the established legal doctrine of companion animals as property is archaic ....”).

[FN87] . See Gary L. Francione, Taking Sentience Seriously , 1 J. Animal L. & Ethics 1, 17 (2006) (“There is no non-speciesist reason not to recognize that full membership in the moral community requires that we reject the slavery of nonhumans just as we rejected the slavery of humans. This would require that we abolish--and not merely regulate--our exploitation of nonhumans ....”).

[FN88] . See infra notes 90-99 and accompanying text.

[FN89] . Neha Jadeja, Why the Status of Animals Should Remain as Property, in People, Property, or Pets ? 17-18 (Marc D. Hauser et al., eds., 2005).

[FN90] . Id . at 18.

[FN91] . See Francione, supra note 87.

[FN92] . See Jadeja, supra note 89.

[FN93] . Id .

[FN94] . Foundation for Biomedical Research, Survivors: Animal Research Saves Lives , http://www.fbresearch.org/survivors/about/ (last visited Feb. 12, 2008).

[FN95] . Foundation for Biomedical Research, Survivors: The Truth about Cats and Dogs , http://www.fbresearch.org/survivors/truth.htm (last visited Feb. 12, 2008).

[FN96] . See Jadeja, supra note 89 and accompanying text.

[FN97] . Foundation for Biomedical Research, Survivors: Quick Facts About Animal Research , http://www.fbresearch.org/survivors/quickfacts.htm (last visited Feb. 12, 2008).

[FN98] . AVERT, HIV Drugs, Vaccines and Animal Testing, http:// www.avert.org/hiv-animal-testing.htm (last visited Feb. 2009) (suggesting that all antiretroviral AIDS drugs were tested at some point on animals). In 2007, HIV/AIDS caused over two million deaths worldwide, and it is estimated that 30.8 million adults are currently living with HIV/AIDS. AVERT, Worldwide HIV & AIDS Statistics, http://www.avert.org/worldstats.htm (last visited Feb. 1, 2008).

[FN99] . See, e.g. , Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 701 (1897). (“The very fact that they are without the protection of the criminal laws shows that property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete.”).

[FN100] . The Oxford English Dictionary 1122 (2d ed. 1989).

[FN101] . Id .

[FN102] . See Simon, supra note 85, at 6 (stating animals can experience “pain, suffering, fear, preference”). See also Herman Daggett, The Rights of Animals: An Oration (1791) in Animal Rights: A Historical Anthology 131 (Andrew Linzey & Paul Barry Clarke eds., 2004) (speaking on the rights of animals in 1791, Daggett argued that animals are “sensible beings, and capable of happiness” and that this sentience was deserving of “proportionable tenderness”).

[FN103] . Robbie Silverman, The Thoughts and Feelings of Animals, in People, Property, or Pets ? 119-20 (Marc D. Hauser et al., eds., 2005).

[FN104] . Id . at 120-21.

[FN105] . Anmarie Barrie, Cats and the Law 9 (TFH Publications 1990).

[FN106] . Id .

[FN107] . Id .

[FN108] . Leslie Irvine, If You Tame Me: Understanding Our Connection with Animals 33 (2004). Boats and ships are also a type of personal property that are named. Leonard O. Townsend, Note, Love Lies Bleeding: Brownfields in the New Millenium , 11 Fordham Envtl . L.J. 873, 894 (2000). One maritime author suggests that “[a] ship is the most living of inanimate things ... every one gives a gender to vessels.” Id . Even if the ship's name has to do with physical characteristics of the ship, i.e., H.M.S. Titanic, the ship lacks the ability to respond to its name. The distinction between companion animals and ships is obvious.

[FN109] . The name selected by the owner often reflects the uniqueness of each pet. In a recent study of dog and cat owners, a majority of respondents who lived and worked with their pets defined them as “thoughtful, reciprocating, emotional beings with uniquely individual tastes and personalities.” Irvine , supra note 108, at 57, 126. As stated in the text, naming often reflects the “individual tastes and personalities” of the animal and reinforces the animal's identity, or self, to their owner. Although naming does not always reflect unique characteristics, it is often the case. This is important because the melding of the animal and owner occurs simultaneously and is dependent upon interaction. Id . at 126.

[FN110] . Excluding horses, which generally are named, most species are not routinely named regardless of their intended use by humans. For example, pigs or cows are rarely named unless starring in a Disney movie. Id . at 33. Owners do name other types of household pets, such as birds, fish, ferrets, rabbits, turtles, gerbils, etc. However, these pets are not comparable in history of domestication or frequency of ownership. The sentience and emotional reciprocity and sophistication of pets such as birds and fish is also a topic for another paper.

[FN111] . Barrie , supra note 105, at 11. They are also independent enough to often ignore an owner using the pet's name in an effort to convince it to do something or stop doing something.

[FN112] . Companion animals' unique qualities inspire owners to go to great lengths to care for and please their pet. See American Pet Products Association, supra note 32.

[FN113] . Maryann Mott, Cat Cloning Offered to Pet Owners , National Geographic News , Mar. 25, 2004, http:// news.nationalgeographic.com/news/pf/57853507.html (last visited Dec. 19, 2008).

[FN114] . Wade Roush, Genetic Savings and Clone: No Pet Project , Technology Review , Mar. 2005, available at http://www.technologyreview.com/Biotech/14215/.

[FN115] . Id .

[FN116] . For testimonials and pictures about the cloned pets provided by GSC, see Genetic Savings and Clone, http:// web.archive.org/web/20060615200352/savingsandclone.com/clients/and_cats.html (last visited Feb. 1, 2009) (on file with author). Genetic Savings and Clone went out of business but the last home site posted for the company can be viewed at Genetic Savings and Clone, http:// web.archive.org/web/20060627103935/savingsandclone.com/clients/index.html (last visited Feb. 1, 2009).

[FN117] . Marc Bekoff, The Evolution of Animal Play, Emotions, and Social Morality: On Science, Theology, Spirituality, Personhood, and Love , 36 Zygon 615, 645 (2001).

[FN118] . Id . at 634-40.

[FN119] . See Susan Phillips Cohen, Can Pets Function as Family Members? , 24 Western J. Nursing Research 621, 624 (2002). In modern America, families extend beyond genetic ties. Id . Today, the definition of family extends to the choice of family members, who are considered “functional kin.” Id . Functional kin become members of a family network and provide services or supplement the services of the biological family members. Id . They also can be perceived as “psychological kin,” a status that focuses more on the feelings and behaviors of family members toward non-genetic family members. Id . These types of functional and psychological kin concepts are far removed from legal concepts that recognized de facto relationships, or from doctrines of equity that recognize a legally protected relationship even though the relationship does not meet all the traditional legal requirements. Such recognition occurs when courts determine that it would be unfair or unjust to not recognize such a relationship. For instance, the doctrine of “equitable adoption” which allows a guardian to stand in as a parent in cases where four elements are met:

The natural parents of the child have disclaimed or abandoned parental rights to the child;

The one claiming to be parent has performed the obligations of parenthood for a substantial period of time;

The child and the one claiming to be parent have held themselves out to be parent and child for a substantial period of time; and

 

The relationship between the child and the one claiming to be parent has been publicly recognized.

[FN120] . See Cohen, supra note 119, at 633.

[FN121] . Id .

[FN122] . Although one pet, Helmsley's Maltese, Trouble, received the largest bequest in the billionaire real estate mogul's will, the dog is still not considered a family member. See Feuer, supra note 2. Also, even though eighty percent of pet owners consider their pet a family member, Paek, supra note 33, when faced with a choice over whom to abandon, pet owners almost uniformly choose to retain their children and abandon their dogs. See Nieves, supra note 34.

[FN123] . The rules allowing pet owners to recover an adequate amount of compensation vary from state to state. See Schwartz & Laird, supra note 11, at 236-37.

[FN124] . Id . at 240-41.

[FN125] . See Duckler, supra note 69, at 221 (“Companion animals, to the extent that they have a social ‘purpose’ created by humans, are most emphatically non-commercial objects valued entirely for the comfort and well-being they impart to their owners as a benefit of ownership.”).

[FN126] . Attorney and doctor of biology, Geordie Duckler, explains the unique nature of companion animals in that:

[r]oughly 1.5 million species of animal have been identified. Of that number, roughly 1.2 million are insects and arthropods. Of the 300,000 species remaining, the vertebrates comprise about 25,000. Of that number, only 4,000 or so are mammal species. Of that 4,000, it is primarily two, dogs and cats, which historically have formed the most special and intimate relations with us as our social companions. Dogs and cats are a minute component of an immense group, yet only those two species are considered to be potential “companions.”

[FN127] . See supra note 18 and accompanying text.

[FN128] . Juliet Clutton-Brock, A Natural History of Domesticated Animals 49 (2d ed. Cambridge Univ. Press 1999).

[FN129] . Id . Animal characteristics that facilitate domestication include hardiness, an inclination to like humans, a comfort-loving nature, utility to humans, unimpeded fertility, and relative ease of care. Id . at 2. Because even wolves residing in the wild possess these qualities, wolf cubs can be reared by humans and live as domesticated animals. Id . at 50.

[FN130] . Id . at 51.

[FN131] . Id .

[FN132] . Id .

[FN133] . Id .

[FN134] . A recent genetic assessment of nearly 1000 cats and their wild ancestors concluded that domestic cats derive from five different wild cats that originated in the Near East and spread to other regions through human movement or migration. Carlos A. Driscoll et al., The Near Eastern Origin of Cat Domestication , 317 Science 519, 521-22 (2007).

[FN135] . Id . at 523.

[FN136] . Id. See also Barrie , supra note 105, at 11-12.

[FN137] . See Driscoll, supra note 134, at 523; Barrie , supra note 105, at 11-12.

[FN138] . Driscoll, supra note 134, at 523.

[FN139] . See Duckler, supra note 69.

[FN140] . See Clutton-Brock , supra note 128, at 59-60, 87, 140.

[FN141] . Id . at 56.

[FN142] . Id . at 140.

[FN143] . Id . at 81. Although cattle may also have been domesticated for the production of milk, this aspect is limited to only certain areas of the world. For instance, a large percentage of African people are lactose intolerant because no tradition existed of milking cows and consuming dairy products. Id . at 81-82.

[FN144] . See Clutton-Brock , supra note 128, at 88.

[FN145] . Id . at 87-88.

[FN146] . Id . at 88.

[FN147] . See infra note 152 and accompanying text; infra note 150 and accompanying text.

[FN148] . See Clutton-Brock , supra note 128, at 140.

[FN149] . See Irvine , supra note 108.

[FN150] . Duckler, supra note 69, at 203 (“[A]nimals, by their nature, are inherently unique and irreplaceable objects. Concepts of modern genetics command the recognition that every individual sexually-reproducing animal is a distinct fingerprint of nature, each unlike that of any other.”).

[FN151] . See supra text accompanying note 118.

[FN152] . See Cohen, supra note 119, at 622 (citing that as of 2002, 65% of cats and 39% of dogs slept with a family member in their bed).

[FN153] . Anzalone v. Kragness, 826 N.E.2d 472, 473 (Ill. App. Ct. 2005).

[FN154] . Id . at 473.

[FN155] . Id . at 474. Plaintiff was an unmarried woman with no children. Id .

[FN156] . An employee of the animal hospital left the door open where Blackie was exercising, which allowed another boarded pet, the Rottweiler, to enter the room and kill Blackie. Id .

[FN157] . Id .

[FN158] . Id . at 474-75.

[FN159] . Id . at 476, 478.

[FN160] . Id . at 479.

[FN161] . Id .

[FN162] . Id . at 476.

[FN163] . Id .

[FN164] . Id . This quote further reinforces the arguments laid out in both supra Part III section B and infra Part IV section B.

[FN165] . Anzalone , 826 N.E.2d at 476.

[FN166] . Id . at 477.

[FN167] . Id .

[FN168] . Id . Although there is some question as to whether the use of “value to owner” is a legal fiction purporting to exclude sentiment while allowing for emotional loss in the damage calculation this terminology is often used in small cases where complex monetary calculations “would be unwelcome as too elaborate for the modest occasion. Perhaps the value to owner rule suffices to invite some help from the jury and to the same time to provide a tool for control if the award becomes too generous; if so, maybe no more should be demanded.” Id . (quoting Dan D. Dobbs, Law of Remedies § 5.16(3) 907 (West 1993)). As with most damage calculations, the “value to the owner” model is not perfect, but it does present the requisite legal form and practical guidance for a jury or judge to make a monetary determination when the item being valued--in this case a pet--is difficult if not impossible to calculate with precision. Id .

[FN169] . Anzalone , 826 N.E.2d at 476.

[FN170] . By deferring to the legislature, this court recognizes that the issue is both complex and has strong support in contemporary society, and also displays a willingness to help along victims of pet loss by applying the value to owner standard, over the traditional and favored fair market value standard. Id . at 476-77.

[FN171] . See Bekoff, supra note 117, and accompanying text.

[FN172] . In Ohio, the Supreme Court has held value to the owner may be used when fair market value can not be determined. Bishop v. East Ohio Gas Co., 56 N.E.2d 164, 166 (Ohio 1944). Generally, this value to the owner model is used in cases of used personal items such as clothing, but can also be employed in cases of unique or irreplaceable items such as manuscripts, personal photographs, family keepsakes and videotapes.

[FN173] . See sources cited supra note 14.

[FN174] . Value in tort law is defined as “the exchange value or the value to the owner if this is greater than the exchange value.” Restatement (Second) of Torts § 911 (1979). Value to the owner refers to the “existence of factors apart from those entering into exchange value that cause the article to be more desirable to the owner than to others,” even further, a dog trained to obey only one master, will have substantially no value to anyone other than the owner. Restatement (Second) of Torts § 911 cmt. e (1979).

[FN175] . Although traditionally the value to owner method is evaluated on an objective basis, the proposed solution can involve both objective and subjective elements to further prevent against windfalls and fraud.

[FN176] . See Cohen, supra note 119.

[FN177] . Gary L. Francione, Animals, Property and Personhood, in People, Property, or Pets ?, 96 n.15 (Marc D. Hauser et al., eds., 2005) (“The status of animals as property has existed for thousands of years.”).

[FN178] . See Huss, supra note 39 and accompanying text; Root, supra note 39 and accompanying text.

[FN179] . Although not exactly a perfect fit, the factors described by Carolyn B. Matlack in her suggested solution to this problem, which she entitled “Sentient Property,” provided guidance for the structuring of these factors. Carolyn B. Matlack, We've Got Feelings Too: Presenting the Sentient Property Solution 88-89 (2006). Matlack bases her solution on the rights due to animals because they are sentient beings. Id . She also suggests that the guardian can speak for the animal using the Doctrine of Substituted Judgment. Id .

[FN180] . As of 2003, seven states proposed legislation that purported to fix the problem of under compensating owners in pet loss cases. Elaine T. Byszewski, Valuing Companion Animals in Wrongful Death Cases: A Survey of Current Court and Legislative Action and a Suggestion for Valuing Pecuniary Loss of Companionship , 9 Animal L. 215, 226-30 (2003). The states with proposed legislation were California, Colorado, Massachusetts, Mississippi, New Jersey, New York, and Rhode Island. Id .

[FN181] . See, e.g., id . at 225 (“[P]laintiff and others are free to urge the Legislature to visit this issue [extending an existing cause of action to pet owners] in light of public policy considerations, including societal sentiment and treatment of pets, and the prospect of public perception that ... [the] law does not provide a just and fair remedy to pet owners ... [who] suffer when their pets are ... fatally injured ....”) (quoting Koester v. VCA Animal Hosp., 624 N.W.2d 209, 211 (Mich. Ct. App. 2000)).

[FN182] . Tenn. Code Ann . § 44-17-403 (2000); 2000 Tenn. Pub. Acts, ch. 762 § 1; 2004 Tenn. Pub. Acts. ch. 957 § 7.

[FN183] . Among adding provisions for guide dogs and deleting a size requirement for the county in which this action can be brought, the Tennessee legislature also increased the maximum amount recoverable from $4,000 to $5,000 in 2004. 2004 Tenn. Pub. Acts. ch. 957 § 3, 7.

[FN184] . Edward H. Ziegler, Partial Taking Claims, Ownership Rights in Land and Urban Planning Practice: The Emerging Dichotomy Between Uncompensated Regulation and Compsensable Benefit Extraction Under the Fifth Amendment Takings Clause , 22 J. Land Resources & Envtl . L. 1, 3 (2002).

[FN185] . See Restatement (Second) of Torts § 911 (1979); supra note 128.

[FN186] . See Francione, supra note 87; Paek, supra note 33, at 524 (“Companion animals, like all animals, deserve to be treated with dignity and respect as emotional and sentient beings. The property classification of all animals should be completely abrogated ... the notion of awarding all animals ‘rights' is an issue that must continue to be explored.”).

[FN187] . See Duckler, supra note 69.

[FN188] . Supra Part IV.A.

[FN189] . Supra Part IV.B.

[FN190] . Id .

[FN191] . Supra Part II.

[FN192] . Supra Part IV.A.