Tuesday, 17 August 2010 10:12


Written by  Kenneth C. Sandoe, Attorney-at-Law
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Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.


Sit back, relax and read for enjoyment. This column will review some recent cases considered to be on the fringe of domestic animal law. Domestic animals are defined essentially as horses, dogs and cats. Other pets may be included but for purposes of this article we are basically speaking about horses, dogs and cats. (Livestock for agriculture and human consumption and wildlife are not discussed in this article and are topics for a later time.)

Can you sue for pain and suffering that your animal has experienced? How do you determine if your animal has experienced pain and suffering? Can you sue for emotional distress for losing an animal which you own? Can you sue for the loss of companionship of your horse, dog or cat? Can your animal sue, in its own right, for pain and suffering? We will review recent decisions answering many of these questions.

The first case to be reviewed is Joy v. Niagara Mohawk Power Corporation, 2004 WL 3019167, New York Appellate Division, decided December 30th, 2004. A horse owner sued the Power Company to recover damages for loss of horses. The horses were electrocuted when wires belonging to Niagara Mohawk fell onto a fence around the property where the horses were kept. The interesting point about this suit was that the owner not only sued for the value of the horses but also sued for “loss of companionship and bond between horse and owner.” The Power Company filed a motion to dismiss the case claiming the owner’s request for loss of companionship and bond was not covered by New York Law.

Citing numerous cases, the New York Appellate Division agreed and held that an animal owner in New York may not recover damages for loss of companionship of an animal which was viewed as the legal equivalent to emotional distress. Thus, in New York, one cannot recover emotional distress for the loss of a domestic animal.

The second case is from California and in Bluestone v. Bergstrom, Case No. 00CC00796, CA. Superior Court, February 6th, 2004, the issue involved a veterinary malpractice suit. The Plaintiff, an owner of a labrador retriever, sued his veterinarians after the dog, named Shane, died of liver failure. The owner paid the veterinarians over $20,000 for Shane’s care and treatment and the owner alleged veterinary negligence and accused the veterinarians of misdiagnosing the dog and giving unnecessary treatments that resulted in the dog’s death.

After a trial, the jury awarded the dog owner $39,000 in damages. Interestingly, the jury found the market value of the dog to be $10. However, the jury assessed a “special value” to the dog in the amount of $30,000 and awarded $9,000 to the Plaintiff for overpayment to the veterinarians.

This case is interesting in recognizing a human bond with domestic animals. Under California law, animals are considered personal property and a person can recover loss of property damage if the person can prove an item has “peculiar value” to the person. While the award in this case is significant, it must be emphasized that the award is characterized as “special value.” The award specifically did not include emotional distress or loss of companionship.

This case represents the trend toward damages for emotional distress and loss of companionship but the Courts have not arrived at that point as yet. The Bluestone case has been appealed.

The next case to be reviewed is also out of New York State, People v. Garcia, 2004 WL 524653 (New York Superior Court). Mr. Garcia was involved in a dispute and assault on a woman and her three children. During the dispute, Mr. Garcia picked up a goldfish tank containing the children’s goldfish and smashed it into a television. Not satisfied that he had done enough, Mr. Garcia then took one of the goldfish and crushed it with his shoe in front of the children. Mr. Garcia was prosecuted for animal cruelty under New York’s Agriculture and Markets Law.

Mr. Garcia moved to dismiss all charges arguing that a goldfish is not a companion animal as defined by Statute nor is a goldfish a domesticated animal. The defendant further argued that a domesticated animal must be a mammal, that a fish does not feel pain, that a fish cannot be trained, that an owner cannot interact with a fish and that a fish cannot provide companionship to an owner.

The Court convicted Mr. Garcia and stated that an animal is defined as a living creature and that there is no requirement in the law that an animal be defined as a mammal. The Court further pointed out that the children had named their goldfish and that the children were very upset after seeing Mr. Garcia crush the fish. The Court concluded that the goldfish were domestic animals and met the statutory requirement.

The final case to be reviewed is from the State of Ohio where a dog sued its vet for emotional distress. In Oberschlake v. Veterinary Associates Animal Hospital, 151 Ohio App. 3rd 741, 785 N.E. 2d 811 (2003), dog owners sued their veterinarian on behalf of their miniature poodle, Poopi, for emotional distress that Poopi had suffered after the vet attempted to spay the dog. Poopi was taken to the vet for a tooth-cleaning procedure. While Poopi was under anesthesia, the vet tried to spay her even though she had already been spayed. As a result, Poopi came out of the anesthesia not only with clean teeth but also with a three-inch incision and scar on her abdomen. The owners sued the vet for malpractice and sought damages for Poopi’s physical pain, suffering, and emotional distress. Curiously, the owners also sought compensation for Poopi’s psychological care.

This is one of the few cases where a pet is seeking damages for its own physical and emotional problems. The Ohio Court held that one cannot recover physical pain, suffering and emotional distress for injury to or loss of personal property. Since domestic animals are considered personal property no recovery was permitted for Poopi’s physical pain, suffering, emotional distress and psychological care. The Court further held that the case was not appropriate to re-examine the status of pets as personal property and further held that a domesticated animal, as property, does not have standing or the right to sue on its own behalf.

It is clear that the Courts are being asked to review the status of domestic animals as they relate to their owners. Presently, the law views domestic animals as personal property and the only damages which can be recovered in a lawsuit for personal property would essentially be out-of-pocket costs and the value of the animals. Recovery is not permitted for pain and suffering, emotional distress and the like.

Some Courts, however, acknowledged the unique nature of domestic animals as not-quite-people and not-quite-property. Some judges are even recommending that the legislature acknowledge a bond between domestic animals and humans and adopt laws allowing damages as claimed in the cases reviewed above. Considering these arguments along with the expanding animal rights advocates, the trend appears toward establishing morelegalrightsin regardtoan owner’s relationship with domestic animals. This is certainly an area of the law whichbears scrutinyand updating.

Enough legal talk—it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of hispracticein-volves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the east.

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