An Open Letter to a Saddened Dog Owner

“I am very sorry to hear about the loss of your Rexie. I know that when our Sheltie Pete died, I mourned and felt the loss, just as you are going through now.”

The law has not yet caught up to the feelings of modern humans. Although there are a few jurisdictions that recognize the loss of a family companion animal as an emotional loss, most do not. Most jurisdictions consider the loss of a pet to be a loss of a “chattel,” that is to say, personal property. Most jurisdictions allow only for the recovery of the value of the property at the time of the negligence. Delaware is among those.

In Naples v. Miller, 2009 Del. Super. LEXIS 173 (Del. Super. Ct. Apr. 30, 2009), Judge Ableman analyzed the damages caused to a dog, Peanut, by another dog, Ricky.

• Section 1708 of Title 7 clearly defines a dog as personal property, which makes it subject to the same measure of damages as a sofa, a car, a rug, a vase, or any other inanimate item of property. If Ricky had chewed Plaintiff’s $4,000.00 oriental rug, she may recover the value of the rug – or if he had broken a vase, the value of the vase. However devoted Plaintiff may be to Peanut, under Delaware law, Peanut is no different from any other item of personal property, and thus, provided a market value can be established, the proper measure of damages for injury to Peanut cannot exceed Peanut’s market value.

Judge Ableman was not unsympathetic, noting:

• Plaintiff could not find a more avid dog lover than the Judge assigned to this case. Notwithstanding my strong personal emotional attachment to my own pet, I am still duty-bound to apply the law that establishes that a dog – or any pet for that matter – is personal property, not a person. And while a dog may be loved as any other family member, in the eyes of the law, this case is no different from any other property damage claim.

Judge Ableman noted that the market value of the dog before its injury is a well-established criterion. Moreover, the Court held:

• Plaintiff’s claim for past and future veterinary expenses is simply not recoverable under Delaware law because our law does not consider Peanut as a living thing, but only as a chattel. Accordingly, the types of expenses recoverable in personal injury actions are not included in the measure of damages. Veterinary expenses may be relevant in pet injury cases as a form of “repair” cost offering a measure of the plaintiff’s property damages, but they are not directly recoverable by analogy to a claim for medical expenses in a personal injury action. See, e.g., Nichols v. Sukaro Kennels, 555 N.W.2d 689, 692 (Iowa 1996)

It may be true, as Immanuel Kant claimed, that we can judge the heart of a man by his treatment of animals; nevertheless, the man who causes an animal to be injured is not necessarily judged liable for the full costs of treatment.

Judge Ableman summarized:

• While the Court is mindful that dogs are often beloved family members, and that many owners will spend inordinate sums of money to keep their pets healthy, the law in Delaware has not advanced to the point where it has carved out a personal injury action for injured dogs, wherein expert veterinary witnesses would testify, medical expenses would be placed in evidence, and pain and suffering and the degree of permanency would be measured by a jury. Obviously, the animal cannot be deposed, there is no provision for independent veterinary examinations, a pet dog is not likely to have lost earning capacity, and there is no loss of consortium claim (as dogs do not marry), nor are there any other similarities between a personal injury case involving an injured human plaintiff and an owner’s loss of her dog, as in this case. If a change in the law is to occur, it is up to the Legislature, not the Courts, to decide that a dog named Fido, a cat named Boots, a hamster named Harry, or a fish called Wanda can have some new species of personal injury action brought on their behalf’. Plaintiff’s efforts to anthropomorphize Peanuts are simply unavailing.

Veterinary Malpractice

As with any professional malpractice action, a professional in the same specialty would have to say that the treating veterinarian not only was negligent, but that his negligence caused or contributed to the injury. A jury would have to decide what damage the delay in treatment caused and what the damage was worth. From a practical point of view, the element of damages would produce a small verdict. It would also require paying a veterinarian to serve as an expert witness, a cost most attorneys would not be willing to advance because of the low probability of success on the complaint.

Delaware is not among the states that recognize a cause of action for mental anguish or emotional distress for the loss of a companion animal. Animal Cruelty is the only statute dealing with companion animals; it is a Class A misdemeanor to cause the death of a listed animal.

Change May Be Coming

In an article in the American Bar Association’s Animal Law Committee’s spring 2006 newsletter, these matters were discussed by Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, who is Chair of the International Society for Animal Rights and a trustee of Institute for Animal Rights Law:

• Once virtually unheard of, in the past two decades the number of civil lawsuits brought against veterinarians for negligent or intentional harm to companion animals has soared. Various reasons have been proffered for this phenomenon, among them the information explosion, a more litigious culture, a burgeoning literature on the subject, more lawyers willing to take such cases, the development of new causes of action, a greater awareness of the importance of companion animals to their caretakers’ quality of life, and a greater willingness on the part of legislatures and courts to treat seriously the harm to companion animals.
• But to say that “the number of civil lawsuits brought against veterinarians for negligent or intentional harm to companion animals has soared, is not to say that such litigation is succeeding. In fact, despite the occasional anecdotal story that makes the wire services and a few seconds of mention on local TV news, much of the litigation is not succeeding – not if success is measured by achieving the lawsuit’s primary goal: imposing a financial penalty on the veterinarian so he or she will be more careful next time. In other words, behavior modification through pain – specifically financial.

Holzer concludes:

• While legislative and judicial reform can result in a demise of the “animals as property” principle and accord companion animals and their custodians the legal protection they deserve, and so much need, we must ask what will cause that reform. The answer is a simple one: a cultural and social change in thinking about the nature of companion animals, and their importance to the well-being of their human friends.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.