Many see this as justification to change the law regarding damages for the loss or injury to a pet. Claims for non-economic damages such as emotional distress and loss of companionship due to loss of, or injury to, a companion animal, are becoming increasingly more common. However, despite what appears to be a greater recognition by society of the significant bond between humans and animals, claims of this nature are generally unsuccessful.

Most often, these claims are invalid because the jurisdiction does not recognize the right to recover emotional-distress damages for a personal property loss. A few states allow for the claim, but the claimant may have difficulty meeting the requirements for this cause of action. Recovery is allowed only when the party claiming emotional distress for a property loss was physically injured and the injury caused the emotional distress. In other jurisdictions, a claim for negligent infliction of emotional distress requires the claimant to witness the behavior, fear for the safety of the victim, and have a close familial relationship with the victim. Since an animal is not legally a family member, the companion animal owner's claim is invalid under this rule.

Damages for intentional infliction of emotional distress are available in claims that arise out of loss or damage to personal property, including companion animals, in many jurisdictions. Intentional infliction of emotional distress requires that the plaintiff prove the tortfeasor's conduct was intentional or reckless, the conduct was intolerable and offensive to generally accepted standards of decency, there was a causal connection between the conduct and the emotional distress, and that the distress was severe. Although a claim for intentional infliction of emotional distress is likely to fail if the subject of the wrongful conduct was the animal, recovery is possible if the court's focus is on the nature of the conduct rather than on the subject of the conduct.

Loss of companionship is generally not recognized as a recoverable item of damage, and some courts have compared companionship claims to loss of consortium claims. Not surprisingly, courts likely will deny recovery for the owner's loss of animal companionship in jurisdictions that limit claims for loss of human consortium to cases involving spouses or immediate family members. Some states have looked to their wrongful-death statute as a basis for denying recovery, and if the wrongful-death statute does not allow for the recovery of loss of consortium or companionship in a case involving the death of a family member, these states also will disallow recovery in cases involving the death of a companion animal.

Undoubtedly, the largest hurdle pet owners face in receiving compensation for their loss is the law regarding animals' status as property. Historically, courts have treated pets as personal property, with no inherent rights and no status apart from their owners. Therefore, if pets are injured or killed, their owners are only allowed to recover the animals' fair market value. The animal's purchase price, age, pedigree, health, rarity, and show record are among the factors that are used to determine the amount of compensation.

All Mixed Up

The problem concerning adequate compensation arises because the majority of companion animals are mixed breeds with little or no calculated value. For the majority of pet owners, a companion animal's only “value” is in the companionship they provide, and the “animals as property” syllogism doesn't work. If a three-year-old stereo is negligently destroyed by a third party, that party will likely be responsible for damages equal to the price for which that three-year-old stereo could be sold. Apply this analysis to the loss of an animal, however, and it is likely that there will be no recovery for the owner because there may be no market for that particular breed or age of animal. Even if the value is based on the cost of a new animal, this is likely to be a nominal amount.

Many argue that the legal system's valuation of a companion animal is not in line with what an average pet owner is willing to spend on veterinary bills in order to preserve the animal. Further, awarding damages in the amount of the fair market value of a companion animal serves as little or no deterrence for a tortfeasor in a case where the animal harmed is not a pedigree and has no special training.

Should we elevate the legal status of companion animals to that of humans? Not necessarily. To allow non-economic damages for loss of a pet would give a remedy to people for pets where it doesn't exist even for some close human relationships. For example, the law does not allow a plaintiff to sue for injury to one's grandparent or best friend.

A better way to address the law's antiquated view of animals as personal property may be the approach that has already been taken by some courts. Those courts have utilized a different method to determine value, and damages are based on the animal's pecuniary value to the owner. These courts recognize that, for most individuals, a companion animal is more than a mere item of personal property, and that many pet owners consider the animal a family member. This method, typically referred to as “special value,” applies to any personal property that has no ascertainable market value, and recognizes that a companion animal's value may exceed its market value. Numerous factors are considered when determining damage awards, including specialized training, rarity of the breed, breeding potential, companionship value, and protective value.

Certainly for many pet owners, however, no amount of money could ever replace their animals or ease the suffering caused by the loss.

Kelly Maheu, JD, is a staff writer for FC&S. She may be reached at [email protected].