Brief Summary of Pet/Companion Animal Damages
Angie Vega (2022)
Many people in the U.S. share their lives with companion animals. In fact, the National Pet Owners Survey (APPA) reported that in 2021-2022 90.5 million households share their lives with at least one companion animal. When a companion animal is harmed by a person other than the owner, for example when their dog is injured or killed by another dog, hit by a car, or suffers harm resulting from the carelessness of a veterinarian during treatment, the owner is entitled to seek compensation for the damage caused. For some pet owners, the calculation of such compensation should consider the emotional injuries they suffer, because their pets play such an important role in their day to day, that their life is significantly impacted when someone harms their beloved family companion.
Unfortunately, this view is not yet reflected in the legal system. Companion animals and other domestic animals are given the same treatment the law gives to items such as a car or a TV. This is because, in the United States, the law classifies domestic animals as personal property. Companion animals are domestic animals with whom humans share their homes and lives. This legal classification has many ramifications, one of them being that animals as property do not have access to courts themselves. It is the pet owner who is considered the victim in tort law, rather than the companion animal, and it is the pet owner’s interest in his or her property that the law is set up to protect. The scope of damages available is also affected by this legal classification, as noneconomic or emotional damages such as pain and suffering, emotional distress, and loss of companionship are usually not recoverable for harm or destruction of property.
The rules for the award of pet damages vary from state to state. However, the traditional approach used by most states is the fair market value of the companion animal. Under this approach, the scope of recovery will depend on whether the defendant injured or killed the companion animal, and it is limited to the amount of money someone would be willing to pay for an animal with the same characteristics. Recovery under this approach is typically nominal and is not even enough to cover the attorney’s fee. This is just one of the obstacles in the journey of a pet owner who seeks compensation for the intentional or negligent harm done to their animal companion. Additionally. It is debatable that this is the rightful approach since companion animals hold a unique value to their owners and their owners only as there is not really a marketplace for owned pets.
Property owners can bring a lawsuit against someone that intentionally or negligently damaged or destroys their personal property. The owner of an item of personal property that is damaged or destroyed is entitled to recover the cost of repair (if the item is damaged) so long as it does not exceed the cost to replace it, which would be the recovery available if the item is destroyed. for instance, the owner of a car that is damaged in an accident, for example, would be entitled to recover the amount of money that would cost to repair the car. However, that recovery would be capped by the market value the specific car had before the accident. The law only recognizes the car’s economic value, and it would be irrelevant whether the car had a special meaning to the owner. In the majority of states, harm to companion animals is addressed in the same way.
Are pet owners concerned about the money they initially pay to bring a companion animal into their home? To some pet owners, the answer may be yes. Particularly those that have pure breed animals. Think about those pet owners with adopted pets. On average the adoption fee of a cat ranges between $25 – $200. Dog’s adoption fees range from $100 – $350. The situation might be even less favorable for those that have elderly or sick animals. Recently, an expert veterinarian in a case, testified that the plaintiff’s sick cat was worth $0.40. Filing a lawsuit against a defendant that harms your pet can cost thousands of dollars including attorney’s fees and other court costs. In most cases, the plaintiff would risk an amount of money that is far greater than what they could potentially recover.
In the case of companion animals, the cost of veterinary expenses to treat the animal would be the equivalent to the cost of repair, which in any event could not exceed the cost of buying a new dog of the same age, breed, and other characteristics, such as training in those states that follow the fair market value approach. In other words, the replacement cost. Some states have allowed recovery of veterinary expenses and even actual value to the human (purchase price, reasonable replacement costs, including some investments, etc.) when the companion animal does not have an ascertainable commercial value. Like in the case of mixed breeds, elderly, and sick pets.
Courts have historically denied recovery for these types of emotional injuries based on the common law precept that noneconomic damages are not available for damage or destruction of property. The relationship between humans and their companion animals has changed in the last 20 years. Dogs and cats have entered the home to play a role more similar to the one of a family member. Pet owners have attempted to push courts to recognize greater recovery of damages for many years, as they argue the value of their dogs and cats is more significant than the financial value they may hold. Some states have expanded the scope of recovery, but only a handful had allowed recovery based on the emotional impact suffered by the pet owner.
Overview of Pet/Companion Animal Damages
Angie Vega (2022)
Tort law is the area that regulates the loss or harm a plaintiff suffers as a result of a civil wrong that arises from a situation other than a breach of contract. Unlike criminal law, the primary goal of tort law is to compensate plaintiffs for the loss caused by intentional or negligent acts of a tortfeasor, rather than to punish the wrongdoer. This compensation is given by a monetary award intended to put the plaintiff in the position he or she was prior to their loss or injury. Compensatory damages are measured by the monetary value of the harm suffered. This is usually a straightforward calculation when the plaintiff seeks recovery of economic injuries, but when it comes to noneconomic damages, putting a monetary value to an emotional injury is not an easy task.
In torts involving injury or loss of companion animals, their legal classification raises important issues in the recovery of damages. For starters, animals cannot be a party in a lawsuit as they are not legal persons. The legal system is laid out to guarantee that the interest of pet owners in their companion animals is protected. It is the pet owner who can seek compensation for harm inflicted on their pet and the scope of the remedies available will depend on the tortfeasor’s level of interference with the pet owner’s property (did they injure or killed the companion animal?), the type of conduct (was the harm to the companion animal was done willfully, negligently, or with gross negligence?), and the type of damages sought by the pet owner (is the plaintiff seeking recovery for the harm to the pet or for the impact suffered by the pet owner)?.
Generally speaking, noneconomic damages such as pain and suffering, emotional distress, and loss of companionship are not available for damage or destruction of property in the United States. This is relevant because companion animals are classified by the law as personal property. When a companion animal is injured or killed, it is commonly accepted that the injury suffered by the family members transcends a monetary value. In fact, the majority of pets are of mixed breed and therefore, have a very low commercial value. When a companion animals owner decides to pursue the legal route, it is usually the sentimental value of that companion animal that drives the pet owner to pursue litigation.
Unfortunately, the current valuation of domestic animals focuses on the commercial value that they might have. This may be the adequate approach in the cases of animals that have commercial value like horses and certain companion animals that are kept for the purpose of breeding or showing them, or those that have some specialized training. Fair market value is still the governing view in most states. There is a patchwork of different approaches addressing the type of damages and extent of recovery available across the country. Those approaches vary from only allowing fair market value, to expanding recovery to reasonable veterinary expenses, and actual value when the market value is zero, or some combination of these three.
Pet owners can recover under different causes of action depending on whether the defendant acted willfully or negligently and on the type of injury they seek to be compensated for. For instance, if a pet owner seeks compensation for the harm done to their companion animal, causes of action such as harm or destruction of personal property are adequate. The focus is on the companion animal as property and recovery is likely to be capped by the fair market value of the pet, as it is the majority approach. On the other hand, if the plaintiff pet owner seeks compensation for the emotional impact they suffered because of the harm done to their animal, intentional infliction of emotional distress is the cause of action that has been allowed in a number of states. This cause of action requires that the defendant act in an extreme and outrageous manner with the intent to inflict severe emotional distress on the defendant, and severe emotional distress must result. These elements do not fit every situation involving harm to companion animals, and in fact, they are usually difficult to establish.
Negligent infliction of emotional distress and animal consortium are causes of action that plaintiffs have repeatedly used in attempting to get courts to expand the recovery to obtain noneconomic damages when their family pets are injured or killed. However, to date, no court has made available these causes of action in the case of harm to pets.
Generally, when it comes to the recovery of non-economic damages, state supreme courts have been consistent in denying compensation for sentimental injury such as emotional distress and loss of companionship. Florida and Hawaii are the two only states that have allowed recovery of noneconomic damages in pet injury cases. However, the Florida case has been narrowly construed and the Hawaii case was later invalided by the statute [HRS § 663-8.9] that barred recovery of emotional distress arising from property damage in Hawaii.
Courts have consistently shown their reluctance to change legal precedent when it comes to companion animals. This is perhaps because of the longstanding common law principles that have governed property concepts. Another possibility is the enactment of laws by state legislatures. Some states such as California (West's Ann. Cal. Civ. Code § 3340), Connecticut (Conn. Gen. Stat. § 22-351a), Illinois (510 ILCS 70/16.3), Maryland (MD Code, Courts and Judicial Proceedings, § 11-110), Nevada (N.R.S. 41.740), North Dakota (NDCC 36-21-13), Oregon (O. R. S. § 30.822), and Tennessee (T-Bo Act") have enacted their own legal statutes awarding damages beyond the scope of market value. These provisions allow different types of damages and have different award ceilings. Tennessee and Illinois are the only states that have statutorily allowed recovery of noneconomic damages.
Even though the relationship between humans and their animal companions has evolved significantly in the past decades, the development of tort law has rather remained stagnant in this aspect. The current treatment of animals by the law does not reflect the ways animals are viewed by many in society anymore. However, as pet owners continue to urge courts to recognize that animals are worth more than just their commercial value, it is expected that in the not-so-distant future there is a breakthrough, and courts and legislatures allow recovery of damages for noneconomic resulting in the harm inflicted upon family pets.
Most courts seem to have difficulty in changing judicial precedent to allow compensation for emotional distress and loss of companionship. A good policy argument in justifying the expansion of damages in addition to the fact that pet owners do not see their pets as property would be to look back to tort law purposes as the current measure of damages is not fulfilling them. Are pet owners being fairly compensated for the injury or loss of companion animals? Are the current approaches deterring tortfeasors from committing acts that could result in the death or injury of pets? It is unclear what impetus will force courts to consider the pets as a property paradigm or if states will continue to defer to the legislature for the enactment of damages statutes.