A Texas appellate court recently ruled that owners of a wrongfully euthanized dog may recover “sentimental” or “intrinsic” damages. While this interpretation of state law might result in an award greater than an animal’s “fair market value” (which, in many cases, can be next to nothing), it still puts companion animals in a category closer to a family heirloom than a living, sentient being. The property status of animals remains a hot topic, so thanks to Jennie for her guest-blog today!

guest blogger: Jennie Schenck

When choosing a topic for my Law Review note, I was asked to consider a legal concept I had learned during my 1L year that I found strange or inconsistent with reality. I came up with a topic rather quickly: I wanted to write about animals as property—and why they ought to have a higher legal classification than that.

I remember writing “WTF?” in the margins of my torts book next to the case that explained why animals are considered property in the eyes of the law. I remember wondering if the judge who wrote the opinion could honestly sit there and analogize animals to inanimate possessions like cars or furniture with a straight face.  It doesn’t take studies and statistics to show that people regard their animals more as family members and less as mere property (though statistics do support that point time and time again). I grew up in a family that gave our pets Christmas and birthday gifts, spent thousands of dollars on our pets’ medical care when necessary, and took more pictures of our pets than the rest of the family combined.  Low and behold, we didn’t do this with our cars or our furniture. And I had a feeling my family was more of the rule than the exception.  In my note, I decided to focus on why the law is so stagnant in this area and what can be done to give animals a higher legal status.

I started by examining case law. Soon, I found a pattern—judges and juries really were sympathetic to pet owners whose pets had been injured or killed due to the tortuous conduct of another, but were almost always unwilling to award anything but economic damages, reflective of animals’ property status.  When they did award noneconomic damages, they were often very small and the court was careful to limit the award to the facts of that specific case. One involved an old lady whose dog was killed and whose house was subsequently burgled—the court awarded damages for the worth of the dog as a guard against intruders, but made sure to limit the award to the facts of that case.  I eventually decided the answer was with the legislature.  Courts would not be willing to extend noneconomic damages in tort cases involving animals unless they had some sort of clear vehicle for doing so.

As of a year ago, when I completed my Law Review note, three states—Tennessee, Illinois, and Connecticut—had enacted statutes that allowed for certain types of noneconomic damages in cases involving the loss or injury of a pet.  I examined two of these in detail (because the Illinois and Connecticut statutes were very similar). One specified that noneconomic damages were to reimburse the owner for the loss of companionship he suffered due to the loss of or injury to the pet.  The other gave the court more leeway in deciding the nature of noneconomic damages. Both were limited in the amount of damages that could be awarded.

Based on the two statutes and my perception of the amounts and types of noneconomic damages necessary to deter inhumane conduct toward animals and adequately reimburse pet owners, I created my own noneconomic damages statute.  I specified that damages should be to reimburse the owner for loss of companionship and for the owner’s foreseeable emotional distress. I included a limit on the amount of damages available (higher for intentional conduct than for negligent conduct), exemptions for governments and veterinary businesses, and a broad definition of “pet” (“pet” being an animal that would qualify his owner for damages under the statute).  My statute was meant to serve as a general template for states to use for their own pet-loss statutes.

Now that I have taken an animal law class and have had about a year to think about the note, I wish I had focused more on the suffering of the animal rather than the loss of companionship and suffering of the animal’s owner.  I now believe that this would get us closer to giving animals a higher legal standing than the statutory remedy I set forth.  However, this comes with a whole new host of problems, of which my note only skims the surface.

Also, ultimately, such a statutory remedy would only be a small step toward giving animals a more deserving legal status.  My note addressed only tortuous interference with pets—there are hundreds of other areas of law which would have to be tweaked to truly recognize animals as having a higher legal standing.

Jennie Schenck is a third-year law student at the University of Arizona James E. Rogers College of Law. She is a board member for law school’s student chapter of the Student Animal Legal Defense Fund. Her legal experience includes family law, personal injury, estate planning, and federal contracts.