February 2003

Lex Feles et Canis – Beyond Ferae Naturae: Practicing Animal Law in Washington

by Adam Karp

I believe that animals should be able to sue for heinous cruelties committed upon them. Washington law already acknowledges that animal suffering and injury are unacceptable, and that people who inflict such harm be held accountable. We have animal-cruelty laws, civil remedies for injury to service animals (RCW 49.60.370), and criminal penalties for injury to service animals (RCW 9.91.170) and law-enforcement animals. Harming an animal constitutes a class-C felony, just like an assault on a police officer (RCW 9A.76.200). Animals can be beneficiaries of trusts (RCW 11.118).

Sadly, no state grants a deceased or injured animal standing to sue in its own name for even the most monstrous torment. Humans can sue for their pain and suffering because they actually feel pain and suffer. Nonhuman animals, although they may also feel pain and suffer, cannot seek compensation for its infliction on them.

If, as an ethical society, we want a legal system prepared to rectify all illegal harms through civil redress, we must compensate for every dimension of harm unlawfully inflicted. If I intentionally pepper-spray your dog through the mail slot of your locked front door because I hate your family, I cause a number of harms, from emotional distress and economic loss to your family, to retinal burn and excruciating pain and suffering to your dog.

People who cause creatures with the capacity to feel pain or experience unnecessary hurt must pay for inflicting that harm. We will have otherwise failed to confer upon all creatures the dignity they deserve as sentient beings who ache, fear, and brave intolerable cruelties.

In short, the law must recognize that companion animals are more than mere chattel.

Skeptical? Consider an increasingly common example. Pyewacket, an aging Siamese cat, was sunning herself. Neighbors a few blocks over had been training Rottweilers to fight. Small animals and canine breeds disappeared by night, were captured, and used as bait to train Bane, Tank and Piggy. In order to instill a sense of respect for pain and domination, after Piggy whelped a litter, her owners drop-kicked her eight-week-old pups over a six-foot fence, then forced them to drag logging chains and run treadmills for hours until they collapsed. The pups slept outside in a roofless, chicken-wired enclosure.

Running loose one morning, Piggy and her pups scoured the neighborhood, yearning to quench their inculcated ire and thirst for blood.

Within moments, Pyewacket was drawn and nearly quartered by the six Rottweilers. The commotion attracted the aging feline's owners, a teenaged girl and her single father. Both ran to the sliding-glass door. In horror, the girl, who had loved her cat like a baby for 12 years, collapsed to the floor, covered her ears, and wailed for divine intervention to spare her Pyewacket's life.

Quickly, her father ran outside to disperse the canine mob. The Siamese, more dead than alive, lay motionless — her lower jaw hanging by a thread of tissue. One eye was jet black, the other a narrow slit. Blood flowed from her nose and mouth. With nearly every bone in her ravished body broken, the father could barely lift her into the car for the emergency trip to the vet's office. Pyewacket died in transit.

What does the law say about valuing this precious creature who gave solace, compassion and support to your minor client? As a kitten, Pyewacket was abandoned to a woman who gave her away. She sat cuddled around her littermates, mewing and scampering around the deep cardboard box until a three-year-old girl and her father approached and peered inside. From the first glance up at this child, she became the girl's best friend — the girl, her guardian.

At 17, the girl is now a clinically depressed teenager who suffers post-traumatic stress and endures recurrent, graphic nightmares of the violent taking of "her baby." She mourns daily, and occasionally breaks down when reality sternly contradicts her fantasy that Pyewacket will sidle up alongside her, purr with gratifying resonance, and knead her chest.

Questions arise: (1) Can I recover for the pain and suffering of this innocent feline?; (2) Can I obtain negligent infliction of emotional-distress damages for the girl, who was present during the fatal mauling of her beloved cat?; (3) What is the economic value of this cat? Is she more like a pencil (i.e., fungible), a family heirloom (i.e., intrinsic value), an automobile (which depreciates over time), an antique (which appreciates over time), or a child?; (4) What is the noneconomic value of this cat in terms of loss of parent-child consortium, mental anguish, or deprivation of companionship, friendship, protection and love?

Increasingly, across the nation, companion animal guardians are litigating the issue of damages and changing the way courts fully compensate those who lose their pets.

From the standpoint of an animal guardian, recompense for the loss of a companion should contemplate full value (i.e., beyond the depreciated market value) and explore the relationship also destroyed in the taking or impairing of the animal's life. This relationship is independent of, and engendered in addition to, the per se existence of the nonhuman animal.

A dog may, while sitting behind the bars of an animal-control shelter or pet-store glass, receive attention from many human visitors, but only a long-term caretaker truly develops a connection with that specific animal. Strangers do not know the animal's preferences, have not earned the animal's trust, and may not care for the animal's best interests. Over time, this bond takes on a life in which strangers may not share unless they, too, devote similar energy, time and love to that unique being.

It is this relationship that the law is beginning to systematically recognize as a valid element of damage. With what "property" do we so affiliate ourselves? Some "love" their cars or computers; not many equate inanimate things with animals. Books and microwaves are inherently incapable of forming relationships. Cats, dogs, birds and other nonhuman animals have identities.

Consider this: people often spend much more to keep a pet alive than the pet actually cost. Providing compensation for veterinary bills in excess of the purchase price is comparable to providing reimbursement to a parent for medical bills paid on behalf of a child. RCW 60.56.025 provides for a lien for care of animals seized by law enforcement, without concern for fair-market value.

Much is premised on the assumption that pets are property. Damage to property can be divided into economic damages and noneconomic damages.

"Fair market value," or the price a reasonable seller not obliged to sell would obtain from a reasonable buyer not obliged to buy is the status quo measure of damages for all property, including companion animals. Where your personal property is damaged but reparable, you are traditionally entitled to the restoration cost. If destroyed, you can claim replacement cost. Some states recognize that family heirlooms, which may possess a personal value to a relative or intimate friend and not to the public generally, have an "intrinsic value" that often exceeds fair-market value.

To make the human guardian whole for loss of a companion animal, many courts and legislatures have provided for recovery of loss of companionship — sentimental and aesthetic sums — as part of economic value on the following bases: that the human-companion animal bond approximates or, in some cases, bests that between humans; that inanimate objects like cars and clothing differ fundamentally from sentient beings like companion animals; and that the bonds formed are enduring, profound and pervasive, the significance of which has been documented in health studies.1 

Here's what courts have found:

As loss of companionship is a long-recognized element of damages in this State the court must consider this as an element of the dog's actual value to this owner.2 

The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live. In doing so, courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members. Indeed, for many people, pets are the only family members they have.… Even an heirloom of great sentimental value, if lost, does not constitute a loss comparable to that of a living being. This distinction applies even though the deceased living being is a nonhuman.3 

A pet is not an inanimate thing that just receives affection; it also returns it.… To say [a pet] is a piece of personal property and no more is a repudiation of our humaneness.4 

At least 14 appellate decisions from around the nation endorse the recovery of emotional-distress damages associated with the death of a companion animal.5 

Animals are inherently unique and irreplaceable — notwithstanding efforts to clone. In an important genetic and social sense, companion animals are not commercial products "manufactured" for marketing. We form relationships with companion animals, causing their value to appreciate with the deepening of the bond, in contrast to other market goods we purchase and use to obsolescence or destruction.6 

Washington cases, like McCurdy v. Union Pacific R.R. and Mieske v. Bartell Drug Co., have held destruction of personalty with no fair-market value, and incapable of restoration or replacement, entitles the owner to its "intrinsic value," which includes elements of sentimentality.7 

In Mieske, plaintiffs brought developed movie film for splicing onto larger rolls to Bartell Drug. Dozens of canisters filled with irreplaceable memories were subsequently lost or destroyed due to negligence. The defendant deemed rolls of raw negative as sufficient compensation. Plaintiffs argued that the memories, while contained on the film, had no market value and could not be replaced or restored. They added, however, that the memories were so unique that some other measure of damages must exist to ensure full compensation. The court agreed, affirming the jury's award of $7,500 as the "actual value [of the film] to the plaintiff."

This "intrinsic value" measure of damages for the loss of unique property has other names, such as "value to owner," "special value" or "sentimental value." Intrinsic value often includes elements of loss of companionship between the pet and guardian, separate and distinct from any sentiment the guardian may possess for the dog. Consider the Kentucky case where Sheba, a German Shepherd, was brought by her guardian to a Lexington veterinary hospital for a routine spay. The veterinarian erred in the procedure, resulting in Sheba's death. The plaintiff sued for negligence, veterinary malpractice, infliction of emotional distress, and breach of contract. The jury trial resulted in a $15,000 award in damages for intrinsic value.8 

In another veterinary malpractice case, a vet and his clinic caused the death of an exotic serval cat by applying a bovine flea treatment toxic to felines. The defendant agreed to perform the necropsy, but "misplaced" the body. The case settled with the insurer for $15,000.9 

Or what about Pudsy, the "wonder dog of Ireland," who had the remarkable talent of adding, subtracting and dividing in any combination of up to 20 by registering a number of barks with the audience? Pudsy could apparently bark the number of spots appearing on a playing card merely by being shown the card. While being transported by rail, the dog died from exposure to excessive heat. The defendant railroad testified that the dog was worth no more than $750, while the plaintiff's experts appraised him at over $100,000. The 1960 jury award of $5,000 in compensatory damages was held not excessive.10 

Peter the Great, on the other hand, did not fare as well. A California trial court granted a new trial after deeming a verdict of $100,000 in compensatory damages and $25,000 in punitive damages excessive. The canine Peter, who worked in the motion-picture industry, was killed when the defendant fired a weapon in the direction of the dog guardian's automobile, unaware he was inside.11 

Interestingly, while many insurance companies like to depreciate an aging dog or cat like a Buick, one New York court reasoned: "The dog's age is not a depreciation factor in the court's calculations, for 'manifestly, a good dog's value increases rather than falls with age and training.'"12

When searching for the optimal formula of recompense, one method is to assign fair-market value at time of tort, including the animal's special perspicacities, characteristics, training and accolades, plus the value of the relationship formed between the animal and its guardians. A strict valuation method, if invoked, should attribute economic value at the latter point of an ownership's tenure, as opposed to the value society assigns to ownership at the time when first established — upon purchase or adoption. At the latter point there is no market value, but rather a value arrived at by closely scrutinizing the singular union between the guardians and companion animal.

Alternatively, once incorporated into a human family, the companion animal no longer has a market value, since its value is inextricably intertwined with the family. All animals, from the genetic level, are inherently unique and not like widgets manufactured for mass consumption. Animal cloning and fertility centers are social and marketplace testaments to this fact. Intrinsic, not fair-market, value applies.

The previous two methods value the relationship and emotional investment as elements of economic damage. A third alternative is to provide compensation as noneconomic damage, including loss of companionship, friendship, love, affection, solace, protection, and emotional distress or mental anguish.

This compensatory class consists of emotional distress, mental anguish, pain and suffering, loss of consortium and the like. Whether styled as part of "intrinsic value" economic damages or an independent legal basis for noneconomic recovery, courts are increasingly honoring the poignancy and duration of the human-nonhuman bond and valuing it accordingly.

Washington courts have "liberally construed damages for emotional distress as being available merely upon proof of 'an intentional tort.'"13 Emotional distress damages may be recovered in circumstances involving intentional injury to property. "[T]his court has recognized that recovery may be had for 'sickness, suffering, mental anguish and bodily infirmities' resulting from nuisance, in addition to property damage."14 The Miotke court awarded mental suffering as an element of damage in a public-nuisance action, where the defendants' actions — namely dumping untreated sewage into the river — interfered with the Miotkes' riparian rights on their lakefront property, thereby depriving them of the use of the land and causing emotional distress.

Other instances where courts awarded emotional-distress damages from an intentional tort involving personalty include Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 602 (1977) (available for willful breach of lease) and Nordgren v. Lawrence, 74 Wash. 305 (1913) (mental suffering available for wrongful entry by landlord into tenant's premises). "In this state, mental suffering may be taken into consideration in assessing damages, where the same is a result of a wrongful act, even though there may be no actual physical injury."15 

In Birchler, the defendant, while grading and filling an undeveloped ravine, removed vegetation, destroyed fences, and encroached on the abutting properties of the plaintiffs:

A claim for damages from emotional distress is not an alternate or cumulative remedy for timber trespass that one may elect in lieu of a common law remedy or the statutory remedy, but merely another item of damages for a wrong committed as a result of the timber trespass.16

A hundred-year succession of Washington cases supports damages for emotional distress arising from intentional torts such as trespass generally. Emotional-distress damages may be recovered for intentional interference with property interests specifically.17 

How does chopping down my Japanese cherry tree or spilling sewage on my lakefront property differ, as a matter of law, from recklessly killing or maiming my six-year-old Basset Hound, Sherlock?

In a 1970s Florida case, the guardians to a dog who suffered severe burns after being placed on a heating pad at an animal hospital and left there for a day and a half received a $1,000 award for their mental suffering upon learning of the dog's injury. This award was given independent of veterinary bills.18 

A 1960s Texas case awarded the dog guardian $200 for mental pain and suffering resulting from the unlawful police shooting of his pedigreed, registered three-year-old male Boxer.19 A recent Kentucky case involving the death of a beloved horse resulted in an astounding $126,000 judgment for emotional distress alone.20 

Most states, however, restrict recovery of emotional distress for the loss of a pet, if they permit it at all, to intentional, reckless, wanton, malicious or outright criminal behavior. Mere negligence rarely suffices, particularly if the symptoms of emotional distress do not amount to a diagnosable mental disorder such as clinical depression, post-traumatic stress disorder, or shock.21 

The independent tort for loss of companionship is similar to causes of action recognizing an impairment of a relationship, such as for intentional interference with contract or business expectancy.22 Oregon plaintiffs recently forwarded the theory of loss of companionship as a stand-alone tort in the 2000-filed case Brock v. Rowe on the basis that the relationship between a person and companion animal has at least as strong a claim to tort protection as commercial dealings.23 King County District Court Judge Richard Bathum recently denied defendants' motion for partial summary judgment to dismiss the tort of loss of companionship.24 This is Washington's first case permitting the plaintiff to advance this theory of recovery.

Loss of companionship suffered as a natural consequence of the reckless destruction of a companion pet is a tort that has come of age under common law. Tort development is a dynamic enterprise, not fixed with unwavering rules. Rather, it reflects the best product of human reason and intellectual development as applied to ordinary and extraordinary social phenomena presented before the courts.

One may plausibly seek to extend the concept of loss of consortium provided by Washington statute and case law to companion animals. The Supreme Court has allowed a wrongful-death action for parental bereavement in the loss of a viable human fetus.25 In light of Moen, a viable, indeed alive, sentient dog with a present attachment to the plaintiff should confer upon the bereaving guardian a status comparable to or greater than that given to a parent grieving over a fetus without an extant personalty or similarly cognizable relationship.

From a statutory perspective, one must review RCW 4.24.01026 and RCW 4.20. 020.27 The intent of RCW 4.24.010 is "to provide a civil cause of action for wrongful injury or death of a minor child to a mother or father, or both, if the mother or father has had significant involvement in the child's life, including but not limited to, emotional, psychological, or financial support."28 

By liberally interpreting the language of RCW 4.20.010 and .020, one might construe the plaintiff as a parent or sibling of a deceased companion dog with no living canine "spouse" or children. RCW 4.24.010 explicitly allows for "damages for medical, hospital, medication expenses, and loss of services and support," as well as compensation "for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship in such amount as, under all the circumstances of the case, may be just."

Provocative questions, these. There are more. If animals have rights or cognizable interests, those rights have implications in administrative, creditor-debtor, family, civil rights, veterinary, criminal, consumer protection, estate planning, insurance and constitutional law.

In April 2002, after petition by the required number of WSBA members, the WSBA Board of Governors approved the formation of the third state-bar animal law section in the nation, following Michigan and Texas. Active attorneys may become voting members, while nonlawyers in the animal-services professions (such as veterinary, grooming, professional pet-sitting and training, animal control, humane societies, rescue organizations and cloning facilities) may join as nonvoting associate members. Section dues, which are $25 per year, provide access to the Animal Law Section list serves (attorney members on one; attorneys and nonattorneys on the other), a quarterly newsletter, discounts at ALS seminars and CLEs, and plenty of intellectual stimulation. (The next section meeting will be January 30, 5:30 to 7:30 p.m., at Perkins Coie, 1201 Third Avenue, 48th Fl., Seattle.)

In July 2002, the New York State Bar Association created the fourth such section. Animal law sections at the county level have been created in San Diego and Los Angeles. As of August 2002, lawyers in Arizona, Connecticut, Florida, Illinois, Oregon and Pennsylvania were petitioning for creation of animal law sections.

Washington's first all-day Animal Law CLE, sponsored by the Animal Law Section and WSBA-CLE, will take place March 7, 2003, during "Super CLE Day" at the Washington State Convention and Trade Center in Seattle.

NOTES

1. See Sonia S. Waisman & Barbara R. Newell, "Recovery of Non-Economic Damages for Wrongful Killing or Injury of Companion Animals: A Judicial and Legislative Trend," 7 Animal L. 45 (2001).

2. Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y.C. Civ. Ct. N.Y. County 1980).

3. Bueckner v. Hamel, 886 S.W.2d 368, 376-78 (Tex. App. 1994) (Andell, J., concurring).

4. Corso v. Crawford Dog and Cat Hosp., Inc., 415 N.Y.S.2d 182 (N.Y.C. Cir. Ct. 1979).

5. See Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981); Peloquin v. Calcasieu Parish Police Jury, 367 S.2d 1246 (La. App. 1979); Lincecum v. Smith, 287 S.2d 625 (La. App. 1973); Gill v. Brown, 695 P.2d 1276 (Idaho App. 1985); Knowles Animal Hosp. v. Wills, 360 S.2d 37 (Fla. Dist. App. 1978); Animal Hosp. v. Gianfrancisco, 418 N.Y.S.2d 992 (N.Y. Dist. Ct. 1979); Richardson v. Fairbanks N. Star Bureau, 705 P.2d 454 (Alaska 1985); Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. 1980); La Porte v. Associated Independents, Inc., 163 S.2d 267 (Fla. 1964); Corso v. Crawford Dog and Cat Hosp., Inc., 415 N.Y.S.2d 182 (N.Y.C. Cir. Ct. 1979); Morgan v. Kroupa, 702 A.2d 630 (Vt. 1997); Paul v. Osceola County, 388 S.2d 40 (Fla. Dist. App. 1980); Soucek v. Banham, 524 N.W.2d 478 (Minn. App. 1995); Johnson v. Wander, 592 S.2d 1225 (Fla. Dist. App. 1992).

6. See Geordie Duckler, "The Economic Value of Companion Animals: A Legal and Anthropological Argument for Special Valuation," 8 Animal L. 199 (2002).

7. Mieske v. Bartell Drug Co., 92 Wn.2d 40, 45, 593 P.2d 1308 (1979) (excludes the type of sentiment "indulging in feeling to an unwarranted extent" or "affectedly or mawkishly emotional").

8. Stephanski v. Wimpy.

9. Rappaport v. McElroy.

10. Mitchell v. Union Pac. R. Co., 188 F.Supp. 869 (S.D. Cal. 1960).

11. Dreyer v. Cyriacks, 112 Cal. App. 279 (1st Dist. 1931).

12. Brousseau v. Rosenthal, 443 N.Y.S.2d 285, 287 (N.Y.C. Civ. Ct. N.Y. County 1980) (citing Stettner v. Graubard, 82 Misc. 2d 132 (1975)).

13. Birchler v. Castello Land Co., Inc., 133 Wn.2d 106, 116 (1997) (citing Cagle v. Burns & Roe, Inc., 106 Wn.2d 911, 916 (1986)).

14. Miotke v. Spokane, 101 Wn.2d 307, 332 (1984) (citing Riblet v. Spokane-Portland Cement Co., 45 Wn.2d 346, 353 (1954) (embracing the majority rule articulated by ALR annotators and stating that elements of personal damage, even absent actual bodily injury, indicate only a "difference … in the degree or amount of damage sustained")).

15. Id., at 308.

16. Birchler, at 112-13.

17. Id., at 117. See cases collected at Annot., "Recovery for Mental Shock or Distress in Connection with Injury to or Interference with Tangible Property," 28 A.L.R.2d 1070, 1091-93 (1953); Restatement (Second) of Torts sec. 929 (1977) (emotional distress damages permitted for trespass to land).

18. Knowles Animal Hospital, Inc. v. Wills, 360 S.2d 37 (Fla. Dist. Ct. App. 3d Dist. 1978), cert. den'd, 368 S.2d 1369 (Fla. 1979).

19. City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. Eastland 1963), writ refused n.r.e. (Oct. 2, 1963).

20. Burgess v. Taylor, 2001 Ky. App. Lexis 26.

21. Hegel v. McMahon, 136 Wn.2d 122 (1998).

22. "The elements of the tort of interference with business relationships are: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination thereof; (4) resultant damage." Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 602 (1977).

23. Brock v. Rowe, No. C002535CV, Washington Co. Cir. Ct. Or. (tort of loss of companionship allowed; based on dicta in Norwest v. Presbyterian Intercommunity Hosp., 652 P.2d 318 (Or. 1982)).

24. Spencer v. Tostenrude, No. Y201329, King Co. Dist. Ct. Wash. Aukeen Div. (involving plaintiffs' 12-year-old feline mauled by defendants' four pit-bull dogs).

25. Moen v. Hanson, 85 Wn.2d 597 (1975).

26. Action for wrongful death of child reserved for mother or father, if parent regularly contributed to support of child.

27. Spouses, children, and stepchildren are first-tier beneficiaries of the statute and may sue for wrongful death without establishing dependency; siblings and parents of deceased are second-tier beneficiaries and may sue if dependent on decedent and if no first-tier beneficiaries exist.