Section Review

Tort claims for injuries to animals: A new frontier

Mary Lou Di Angelis is a second-year law student at Massachusetts School of Law and a recent MBA legal intern.

What, if any, remedies are available to the owners of animals that are seriously injured or killed? This question has been raised recently following the death and serious injury of several dogs that suffered shocks from electrical currents on Boston streets and sidewalks. Currently, whoever wrongfully kills, maims or carries away a domesticated animal is liable in tort to its owners for punitive damages equal to three times its value.1 Since animals are recognized as property, the punitive damage award is based on market value. A mutt would, therefore, be worthless in the eyes of the law.

Although animals are still considered property under the law, society views animals much differently. In the area of tort law, the current legal system is beginning to recognize the significance of the emotional relationship between companion animals and their human caretakers. For example, Rhode Island recently passed a law that acknowledges pet owners as "guardians" of their pets in the state statute concerning animals. The aim of the legislation is to raise awareness that pets are an important part of our families and not just property, said Representative Elizabeth Dennigen.2

With that sentiment, a Massachusetts state senator has recently introduced a bill providing remedies for the wrongful injury or death of animal companions.3 Under the proposed legislation, a person who by willful, wanton, reckless or negligent act or omission kills or injures an animal companion would be liable in damages for the loss of the reasonably expected society, companionship, comfort, protection and services, veterinary care, burial expenses, court costs and attorney fees. If the animal is injured, pain, suffering, emotional distress and consequential damages sustained by the animal's human companion and pain, suffering and loss of faculties sustained by the animal would be available to the human guardian. Additionally, the punitive damage compensation would be increased to a minimum of $2,500.

The proposed legislation reflects a nationwide trend to expand remedies available for injuries to pets. The increasing number of animal law courses, animal law bar associations and increased legal protections for animals, evidences that the area of animal law is expanding rapidly. The first animal law review journal debuted in 1995,4 with the first animal law casebook published in 2000.5 Animal law is taught at such prestigious law schools as Harvard, Rutgers and Georgetown. The first National Animal Advocacy Moot Court Competitions were held in February 2004 at Harvard Law School. State bar associations have added animal law to their separate sections6 and state legislatures are reforming statutes concerning animals. In 1994, only 15 states had enacted felony animal cruelty laws. Today, 41 states and the District of Columbia all carry felony penalties for acts of animal cruelty.7 Massachusetts was the first state to pass an anti-cruelty statute in 1884 and currently has a bill pending to increase sentencing for an animal cruelty felony.8

While much of animal law is focused on wildlife, captive animals and animals used for research, entertainment and food production, a number of significant developments are occurring in the realm of tort law. A growing number of jurisdictions have moved away from market value as the measure of damages and are adopting a more substantial basis for awarding recovery for harm to a companion animal. For example, Tennessee was the first state to pass a statute allowing recovery for the "reasonably expected society, companionship, love and affection of the pet." Senator Steve Cohen sponsored the bill after his dog was killed. He explained that without such a statute, damage awards are insufficient.9

In Morgan v. Kroupa,10 the Vermont Supreme Court acknowledged "[a pet's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions…courts must fashion and apply rules that recognize their unique status." Quoting Judge Friedman in Corso v. Crawford Dog and Cat Hospital, the Vermont Supreme Court said, "'[a] pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.'"11 In addition, voluminous amounts of research detail the beneficial results of having animal companions in one's life.12 The daily social and emotional interactions create a bond. "The longer the relationship, the deeper the love and connection between animals and humans."13

Several jurisdictions have relied upon various legal rationales to value companion animals above their purported market price. Appellate courts in at least nine states have allowed recovery of the subjective or intrinsic value of a companion animal.14 These courts have established a cause of action for intentional infliction of emotional distress, expressly relying upon the tort objective of deterrence as a rationale for permitting animal caretakers to recover more than a "market value" for the tortious loss of their companion animals.

A recent Massachusetts case challenged the idea that animals are simply property. In Krasnecky v. Meffen,15 Steven Wise, a leading author, professor and animal law attorney, represented the plaintiffs against owners of a dog who entered the plaintiffs' property and slaughtered seven sheep. The defendants were aware that their dogs often ran loose and had killed a neighbor's rabbits, and the defendants had been asked to restrain the dogs. The plaintiffs learned of the killings the next day when they returned home and saw the dead sheep in their back yard.

These sheep were never used for economic purposes but were the plaintiffs' pets. Evidence indicated that the plaintiffs spent six to seven hours a day with the sheep and referred to them as their "babies," celebrated their birthdays, baked them muffins, patted, hugged and brushed them and gave them names. The sheep were bottle-fed and allowed the run of the house when they were young. Documented evidence established that the death of the sheep caused the plaintiffs to suffer severe emotional distress and physical problems.

The plaintiffs sought to recover damages for intentional and negligent infliction of emotional distress, negligence and recklessness, strict liability of the owners of the dog and trespass. Krasnecky challenged Massachusetts courts by purposely excluding market value, seeking damages for emotional distress and loss of companionship and society.

After the Superior Court entered judgment in favor of the defendants, the Appeals Court held that the plaintiffs had no cognizable claim for loss of companionship and society because there was no statutory authority for such a claim. The court ruled, if cognizable under any theory, the claim would fall under the theory loss of consortium and may not be maintained outside of Massachusetts General Laws chapter 229, section 2.16 That statute limits the right to bring a wrongful death action to those instances involving the death of a person. The court further stated any expansion is best left to the legislature.17

On the emotional distress claims, the court held that the plaintiffs could not recover because they were not present when the sheep had been slaughtered. In Krasnecky, Judge Jacobs ruled "the plaintiffs absence at the time of the killing of their sheep and the fact that they did not learn of the slaughter until the following day alone preclude any recovery for the emotional distress suffered by them."18 In Massachusetts, recovery for emotional distress has been limited to those plaintiffs who witness the injury or come upon the injured party immediately thereafter.19 This has been expanded to witnessing the destruction of property in Sullivan v. Boston Gas Co.20

It is significant, however, that Krasnecky did not rule out the award of damages for intentional and negligent infliction of emotional distress, but instead held only that the elements for emotional distress compensation were not met in circumstances of that case. Krasnecky leaves open the question of what damages are recoverable for the wrongful death or injury of a companion animal in Massachusetts.

The recent tragic incidents in Boston of owners witnessing their dog's death may be just the case to further challenge Massachusetts courts to adopt the evolving view that animal companions are not mere property and should not be valued as such. Twenty reporters, seven TV cameras and hundreds of concerned citizens packed a crowded city council hearing where tragic tales were told by dog owners whose canine companions were killed or injured.21 The owners' wrenching stories of watching helplessly as their dogs were electrocuted illustrate the significance of the emotional relationship between companion animals and their human caretakers and the need to recognize tort claims for these injuries.

Massachusetts courts may be receptive to claims for injuries to animals. As Wise says, "An overarching principle of tort law is that victims should be compensated for all damages proximately caused by a tortfeasor's wrongful conduct: human companions suffer proximately caused emotional distress and loss of society when their companion animals are wrongfully killed; therefore owners should be compensated for this emotional distress and loss of society."22

Apart from abuse and neglect statutes, private legal remedies are developing for the loss of companion animals by the conduct of others that are beginning to reflect the special status of companion animals.23 As Wise referenced in one of his numerous writings, "Responding to an argument made in 1521 that no property could exist in tamed animals, the only use of which was to give pleasure to their owners, Justice Brooks answered that he might, 'have a singing bird, though it be not pecuniarily profitable, yet it refreshes my spirits and gives me good health, which is a greater treasure than great riches. So if anyone takes it from me he does me much damage for which I shall have an action.'"24 Anyone who has ever been fortunate enough to experience a bond with an animal companion knows the significance behind Justice Brooks' words.

The practice of animal law has grown significantly and will continue to grow as these laws continue to evolve. Statutes and case law change as society demands, leading to a gradual expansion of damages available for tortious harm to animal companions. Because of this, lawyers will receive more inquires about potential claims and will need to be aware of the available remedies and be prepared to advocate for compensation of all losses sustained by a person whose pet has been harmed by the wrongdoing of another.

End notes

1. Mass. Gen. Laws ch. 272, ß 85A.[back]

2. Press Release, The Legislative Press & Public Information Bureau, Students Make History By Helping To Draft & Pass Animal Rights Legislation (Sept. 26, 2001) (available at http://www.rilin.state.ri.us/leg_press/2001/september/Dennigan%20pets.htm (last visited Apr. 29, 2004).[back]

3. S.B. 932 (Mass. 2003).[back]

4. Nancy V. Perry, Ten years of Animal Law at Lewis & Clark Law School, 9 Animal L. IX (2003).[back]

5. Pamela Frasch & Scott Beckstead, Animal Law, Cases and Materials, (Carolina Academic Press 2000) (2nd ed. 2002).[back]

6. Perry, supra note 4, at XII.[back]

7. Id. at XII.[back]

8. S.B. 198 (Mass. 2003). [back]

9. Tenn. Code Ann. ß 44-17-403 (2000); 2000 Ten. Pub. Accts, ch. 762 ß 1.[back]

10. 167 Vt. 99, 702 A.2d 630 (1997).[back]

11. Morgan, 167 Vt. at 103, 702 A.2d at 633, quoting Corso v. Crawford Dog & Cat Hospital, Inc., 415 N.Y.S.2d 182, 183 (1979).[back]

12. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059, 1059 (1995). See e.g., Odean Cusack, Pets and Mental Health, 210 (1988) (discussing correlation between degree of attachment for companion animal and morale, happiness, and optimism of animal guardian); Dogs Offer Patients Therapy, Plain Dealer, July 5, 1994, at 6E (describing program of companion animal visits to hospital patients); Sherry Stripling, The Healing Touch - Animal-Assisted Therapy is Gaining Popularity by Leaps and Bounds, Seattle Times, Dec. 10, 1993, at K1, K2 (describing use of companion animals in medical rehabilitation). See generally Boris M. Levinson, Pets and Human Development (1972) (discussing companion animals as aids to and signs of humanization of society). See Mara M. Baum et al., Physiological Effects of Human/Companion Animal Bonding, 33 Nursing Res. 126, 126 (1984).[back]

13. Debra Squires-Lee, supra note 12, at 1065, 1066.[back]

14. Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285 (1980), Corso v. Crawford Dog & Cat Hosp. Inc., 97 Misc.2d 530, 415 N.Y.S.2d 182 (1979), Animal Hosp. v. Gianfrancisco, 418 N.Y.S.2d 992 (1979), Quave v. Bardwell, 449 So.2d 81 (La. Ct. App. 1984), Brown v. Crocker, 139 So.2d 779 (La. Ct. App. 1962), Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. 1963), Richardson v. Fairbanks N. Star Bureau, 705 P.2d 454 (Alaska 1985), Gill v. Brown, 695 P.2d 1276 (Idaho Ct. App. 1085), Wilson v. City of Eagan, 297 N.W.2d 146 (Minn. 1980), La Porte v. Assoc. Independents, 163 So.2d 267 (Fla. 1964), Levine v. Knowles, 360 So.2d 37 (Fla. Dist. Ct. App. 1978), Campbell v. Animal Quarantine Station , 632 P.2d 1066 (Haw. 1981), Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Civ. App. 1994), Morgan v. Kroupa, 702 A.2d 630 (Vt. Supr. Ct. 1997).[back]

15. 56 Mass. App. Ct. 418, 777 N.E.2d 1286 (2002).[back]

16. Massachusetts General Laws chapter 229, section 2 provides in pertinent part that "[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person…shall be liable in damages… for the loss of the society, companionship [and] comfort…of the decedent…" [back]

17. Krasnecky, 56 Mass. App. Ct. at 423, 777 N.E.2d at 1290.[back]

18. Id. at 420.[back]

19. Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295 (1978), Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341-342, 450 N.E.2d 581 (1983), Nancy P. v. D'Amato, 401 Mass. 516, 522, 517 N.E.2d 824 (1988), Stockdale v. Bird & Son, Inc., 399 Mass. 249, 251-252, 503 N.E.2d 951 (1987).[back]

20. 414 Mass. 129, 140, 605 N.E.2d 805 (1993)(emotional distress claims of persons who witnessed destruction of their home permitted to go to trial).[back]

21. Mac Daniel, NStar spars with city on electric shocks, Boston Globe, at A1, A10, Mar. 9, 2004.[back]

22. Steven M. Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal L. 33, 92 (1988).[back]

23. Geordie Duckler, The Economic Value of Companion Animals: A Legal and Anthropological Argument for Special Valuation, 8 Animal L. 199, 209 (2002).[back]

24. Wise, supra note 22, at 69, citing Sir William Holdsworth, A History of English Law 489 (1926), quoting Y.B. 12 Hen. 8, Trin. Pl. 3, at 4 (1421).[back]

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