By Marianna R. Burt, J.D.
Those who have experienced the richness and complexity of the human-animal bond, describing a pet as a piece of property seems woefully inadequate. Yet that is its position, at least officially; according to black letter law, an animal has no status apart from its owner. In rejecting a claim concerning a dog killed by a train, the United States Supreme Court wrote in 1897:
... They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual.
But that statement is itself puzzling, for it implies that a particular breed or individual can have significant value, and this idea is strengthened by the courts further comment:
... While the higher breeds ranks among the noblest representatives of the animal kingdom and are justly esteemed for their intelligence, fidelity, watchfulness, affection, and above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance ...
Confusing ? This opinion carries the seeds of several inconsistent, even contradictory assessments of animal worth accepted by the Courts in our own century. The denial of intrinsic worth means that an animal is simply a thing whose life has no independent significance. Its value will always be measured, in some way or other, in terms of its utility to people. Yet the ways in which this utility is defined have changed greatly over the years, and some developments, such as the protection of endangered species, suggest a recognition that at least some animals have value in their own right.
Farm animals, with their clearly defined functions, proved the basic model of animal value in Anglo-Saxon law. Productive cattle and poultry, strong ploughhorses--all came to command a good price in the marketplace. Their qualities could be compared and prices adjusted accordingly. Their market value came to be seen as an objective measure of worth.
The law called them useful animals and came to distinguish them from other creatures, such as cats, birds, and non-working dogs, which had no discernible utility. With the developments of distinct breeds of such non-useful animals, beauty and conformity to standard became key elements in determining worth, and a parallel system of market value grew up, one which also included some utility factors such as capacity for reproduction.
But where does that leave the qualities of intelligence, fidelity, watchfulness, affection, and companionship cited by the Supreme Court in its otherwise discouraging 1897 opinion? One can view the puzzling line of 20th century cases as a series of attempts to obtain recognition and compensation for these intangible qualities, with varying degrees of success.
Consider the case of a negligent owner whose dog attacks and injures another. In one jurisdiction, the owner may be liable for veterinary bills up to and including the market value of the injured animal, but no more; in others, the owner may have to pay reasonable veterinary costs to restore the animal to its previous condition, irrespective of its monetary worth.
In the case of an animal's death, the contrast in outcomes is even more extreme. Punitive damages have sometimes been awarded when malicious conduct was involved, and courts in New York, Florida, and Hawaii have in exceptional cases entertained claims for emotional distress. However, in 1987 an Illinois court sternly turned aside a claim for loss of a dogs companionship by restating the classic position that a dog is an item of personal property and that the ordinary measure of damages is fair market value of the object at the time of loss.
A mongrel dog cannot be a unique chattel, the Pennsylvania Superior Court declared in 1988. Yet as early as 1964, a Florida Court has awarded damages based on the peculiar value of a pet dog to its owner. In 1979, a New York Court declared:
... the court must first decide whether a pet such as a dog is only an item of personal property as prior cases have held ... This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property ...a pet is not an inanimate thing that just receives affection; it also returns it ...
This decision is not be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom, while it might be the source of good feelings, is merely an inanimate object and it is not capable of receiving love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which is turn causes a human response. Losing the right to memorialize a pet rock, or a pet tree of losing a family picture album is not actionable. But a dog--that is something else. To say it is a piece of property and nothing more is a repudiation of our humaneness. This I cannot accept.
The courts have begun to recognize this relationship within certain contexts other than damage suits. In 1981, a tenant with a disability living in low-income housing successfully challenged summary eviction proceedings which arose from her failure to give up her pet as required by the lease. Presenting letters from her physician and several social workers confirming the mental disability which required the companionship of her small dog, she argued that enforcement of the no pets rule deprived her of the benefit of the federally funded housing program. The court found that the rule was reasonable but declared:
... nothing in the record rebuts the reasonable inference that the Authority could easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires (as has been stipulated) the presence of a dog. Such accommodation falls well within the kind of reasonable accommodation required by the regulation ...Here plaintiff had presented herself as a handicapped person under Section 504 of the Rehabilitation Act of 1973, now superseded by the Americans with Disabilities Act. But it has not always been necessary to show the presence of a clinical disability. In 1985 a New Jersey landlord purchased five units occupied by tenants who had maintained pets for years with the consent of the former landlord, despite boiler-plate lease provisions forbidding them to do so. He sought eviction when they refused to give up the pets. The court found:
At the trial, defendants presented testimony from Dr. Aaron Katcher, an Associate Professor of Psychology at the University of Pennsylvania and a specialist concerning the influence of companion animals on the mental and physical health of their owners. His testimony established that the loss of their pets to people such as defendants would cause significant health problems, especially if the loss is due to a defendant being forced to give up his or her pet as opposed to the pets dying a natural death. Defendants could be expected to suffer grief and depression as great as that suffered at the loss of a family member and, in addition, suffer from a sense of guilt and loss of self-esteem. On a positive note, the witness testified to studies showing that the presence of a pet lowers blood pressure, decreases anxiety, combats depression and generally increases the owners health. In fact, the presence of pets generally lowers the rate of mortality. As to Mrs. Savignon, and defendants Possumato and Brosonski, Dr. Katcher testified that one would be increasingly unwilling to leave her home, another would suffer a worsening in her cardiovascular system and increased hypertension and the third would experience severe grief, especially since this woman would not only grieve for the loss of her dog but suffer a reawakened grief for the loss of her sister, the dogs former owner ...
Of course, these suits sought prospective relief rather than damages in tort, so only prospective rather than actual injury had to be shown. Yet the relevance of such testimony to tort liability is apparent. If, e.g., someone killed the dog of the woman suffering from a pet-dependent disability in the first case, she could claim that her injury was a particularly grave one, since she had been deprived of an animal which performed a unique service, much as guide dog does for a person with a visual disability.
Some clues to a possible cause of action by persons not suffering from a clinical disability are suggested by the testimony in the second case. As data continues to grow concerning the health benefits of companion animals, they will come to be more recognized as highly useful creatures whose loss or impairment should be amply compensated. Indeed, Congress has already recognized the utility of companion animals, at least for certain vulnerable segments of the population, by making provision for service dogs in the Americans with Disabilities Act and permitting private pet ownership in federally assisted housing for elderly and handicapped persons.
Society is taking animals more seriously in other contexts as well. Although one cannot leave money or property directly to a pet (how would he endorse the check?), devoted pet owners have often tried to set up a trust for the care of an animal after their death. Traditionally, such honorary trusts were not legally binding and depended completely upon the honesty and good will of the trustee, but recently a number of states have passed laws making them legally enforceable.
At least in some jurisdictions, there seem to be limits on the disposition one can make of an animal in a will. In 1980, the celebrated California case of Sido struck down a will provision requiring euthanasia of an otherwise healthy, adoptable dog upon the owner's death. This ruling clearly treated the dog as something other than disposable property. The fact that there have not been many other Sido cases is a reminder that such changes remain isolated unless they are actively applied to new situations.
This fact has not been lost upon those concerned with the problem of animal cruelty. It is noteworthy that no cruelty law, even the old ones, was based on whether the animal was owned or valuable. However, in the past, prosecutions have often been hampered by limited investigative resources and outmoded state laws requiring a showing of malicious intent. Some of these laws have been streamlined, and 16 states now treat animal cruelty as a felony rather than a misdemeanor. An aggressive Zero Tolerance for Cruelty campaign by Animal Legal Defense Fund seeks to educate prosecutors and investigators on how to use their local laws successfully.
What conclusions can we draw from all these changes? We have seen that the concept of an animal's value has been expanded to include newly-recognized skills and abilities to assist his owner in modern life. As a practical example, this means that a certified service animal has significant monetary worth and should be insured for a figure reflecting the cost of its training and the value of the services it performs (i.e., what it would cost to hire someone else to carry out those tasks). In the future, we can also expect to see damage suits for the loss of less formally trained animals, based on new formulations of the emotional benefits they provide.
And we will continue to see recognition, as in the laws protecting endangered species and severely punishing animal cruelty, that an animal does not have to have an owner in order to be important. This belated acknowledgment that animals do have a measure of intrinsic worth should have beneficial long-range effects for owned and unowned animals alike.
