Feature

Nature of the Beast

Is animal law nipping at your heels?

Quick, what do each of the following lawyers have in common? A lawyer who drafts a revocable living trust with clauses providing money and instructions for the ongoing care of the trustor's pet cat after the trustor's death; a criminal defense attorney representing a fraternity member charged with microwaving his roommate's pet dog; a litigator bringing a tort suit for the roommate's loss of companionship of the microwaved dog? They are all practicing animal law, and you may be doing so too without even being aware of it.

In fact, animal law is one of the fastest-growing emerging practice areas in the country today. Over the last few years the number of law schools now offering an animal law course has grown to about a dozen and includes such prestigious schools as Harvard, Georgetown, Hastings, Rutgers and Portland's Northwestern School of Law at Lewis & Clark College, which is also where Animal Law is published, the nation's only law review journal on the subject. January 2000 also brought the publication of the first Animal Law case book, a 780-page volume published by Carolina Academic Press and co-authored by Oregon attorneys Pamela Frasch and Scott Beckstead.

In addition, some states, including New York, have already established animal law sections of their bar associations, and others (including Oregon) are in the works. Section members usually include full-time practitioners and law school professors dedicated to advancing the field, part-timers who wander into it as part of an existing area of practice as mentioned above, and pro bono practitioners who have an interest in animals and want to incorporate this exciting field into their legal experience. These bar sections have been busy organizing meetings and continuing legal education courses on the myriad legal and ethical issues surrounding animal law. The Oregon State Bar will be sponsoring its first Animal Law CLE, intended to be a broad overview of the topic, on July 27 at the OSB Center.

But what is animal law, exactly? According to the first case book on the subject, 'Animal law is, in its simplest (and broadest) sense, statutory and decisional law in which the nature - legal, social, or biological - of nonhuman animals is an important factor.1 Does this then include any case with an animal in it? Of course not. For example, if greyhound dogs are simply the chattel in a dispute over the delivery or financial terms in a breach of contract action involving the dogs' sale, it is probably not an animal law case. If, however, the case focuses on the dogs' inability to perform (e.g., to race or breed), it might be an animal law case. An animal law case, like the Supreme Court's definition of obscenity, may be yet another legal concept that eludes certain definition but is one that, over time, we learn to ''know it when we see it.''2 Much easier to identify and define is animal law in its statutory form. Innumerable local, state and federal statutes and regulations that affect the welfare, use and abuse, sale and management, protection and killing of animals are all part of animal law.

WHAT IS AN ANIMAL?
Shifting definitions continue throughout the field of animal law, even in the seemingly simple question 'What is an animal?' Take a goldfish, rat, deer, cat or chicken. Which of these is an animal according to legal, not scientific, definitions? None of them, depending on where you look. A brief review of the states' anti-cruelty laws, for example, reveals that goldfish, or fish of any kind, are not included in Delaware's3 or Missouri's4 definitions of animal, whereas Oregon's definition says an animal is 'any nonhuman mammal, bird, reptile, amphibian or fish.'5 New York's definition includes 'every living creature except a human being,'6 and California's says an animal is 'every dumb creature.'7 In Hawaii's anti-cruelty statute,8 rats would be considered 'vermin or other pests' and therefore not an animal protected from mutilating, poisoning or killing. Surprisingly, the federal Animal Welfare Act's definition of animals9 subject to government protection and monitoring excludes the millions of rats, birds, and mice used in scientific research, along with livestock and poultry.

Whether a deer is an animal may depend on whether he or she is considered wild or domestic. A glance at Texas' tortured definition reveals that 'Animal does not include an uncaptured wild creature or a wild creature whose capture was accomplished by conduct at issue under this section.'10 Delaware's statute discussing animals to be protected from dangerous dogs has a definition of domestic animal that seemingly does not include cats.11 Louisiana and South Carolina's anti-cruelty statutes specifically exclude chickens and other fowl from their animal definitions, while Virginia specifically includes them.12 In Oregon 'commercially grown poultry is excluded, as are most other kinds of livestock.13 (See sidebar on this page.) Beware if you are in South Dakota, because even if you are sure you are dealing with cruelty involving a non-domestic animal, you may still need to check the statute's accompanying definitions to see if you've got either an exotic, captive wild, non-domestic, other livestock, wild, or a zoological animal.14 Perhaps it is Maine that has the most sensible definition: 'Animal means every living, sentient creature not a human being.'15

Although animals' definition under today's law remains fluid, their status under the law has remained unchanged; animals are considered property, in many ways no different than a chair or car or other chattel. Oregon, like many states, even goes out of its way to declare that dogs, in particular, are property under ORS 609.020. However, there is a growing body of law and increasing discussions among animal lawyers concerning the idea that animals may have a special status in the law that is not exactly on a par with humans or with property either. The best and one of the earliest examples of these types of cases is Corso v. Crawford Dog and Cat Hospital, Inc., 415 NYS 2d 182 (NY 1979), in which a woman arranged for an elaborate funeral for her beloved 15-year-old dog, only to arrive with her friends and discover a dead cat in the dog's casket. In deciding that the plaintiff was entitled to special damages beyond the market value of the dog, the court stated '...a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property. ... A pet is not just an inanimate thing that just receives affection, it also returns it.'

THE DEVELOPING TORT LAW ON ANIMALS
Presently, the area of animal law undergoing the most drastic transformation is that of tort. When a companion pet is damaged or destroyed by other's misconduct, a variety of tort remedies have traditionally been available to address compensation. In Oregon, owners have sued and won on behalf of injured pets since the beginning of last century,16 no differently than have owners around the country in the same period.17

In addition to these traditional avenues, a new tort, that of 'loss of companionship,' has developed. That tort has been recently promoted by animal law lawyers in circumstances where there has been intentional or reckless misconduct that has destroyed, not just an animal itself, but an objectively perceived and valuable relationship between an animal and its owner. The genesis of the tort's evolution in Oregon came from dicta in Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543 (1982):

This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently…Under these principles, to use a simple illustration, a child might well have a cause of action for solely emotional distress if someone, in order to cause that distress, injured not the child's parents but a favorite family pet.18

Most recently, and most importantly, the tort was given its first official imprimatur of approval by a Washington County Circuit Court in a pending civil case, Brock v. Rowe (Washington County C002535CV). Ruling on motions against the complaint to dismiss all causes of action, including a claim for loss of companionship, Judge Marco Hernandez denied the motions and allowed the tort to go forward to a trial for the first time anywhere in the nation. The ruling is a unique comment on the developing field that the law now recognizes that pet owners and their pets can have a 'relationship,' and that that relationship has an intrinsic worth which can be valued and compensated if destroyed. Should the destruction of a relationship between an animal and a human now be treated and protected in the exact same manner as a relationship between humans that has been destroyed? The answer to that question is slowly but surely being pulled into focus by litigation under the new tort.

In conjunction with the legal recognition of animal/human relationships, jurisprudence on the valuation of animals has been rapidly progressing. Many state courts have thus more readily acknowledged that the damage and destruction of companion animals reflects on their special status as items of personal property. The idea of 'special status' has flourished on the East Coast, where courts have held that the restriction of the loss of a pet to its intrinsic value alone is unacceptable, and that a pet is not just a 'thing' but in reality occupies a special place somewhere in between a person and a piece of personal property.19

The idea has therefore been forwarded that the real 'worth' of a companion pet is not primarily financial but emotional, its value deriving from the animal's relationship with its human companion. As to the evolving valuation of companion animals, it has been true for more than a century in Oregon at least, that courts have allowed the injured party, the animal's owner, to plead and recover the 'special value' of the animal that was harmed as opposed to recovering only its 'market value'. The rule was first stated in McCallister v. Sappingfield, 72 Or. 422 (1914):

[P]roperty may have a value for which a recovery may be had if it is destroyed, although it may have no actual market value…It is not necessary in any case that there should be an actual market value for an article in order to entitle the owner thereof to a recovery for its destruction…[T]his principle of law has been applied in actions to recover for the destruction of a dog. The true rule being that the owner of a dog wrongfully killed is not circumscribed in his proof to its market value, for, if it has no market value, he may prove its special value to him by showing its qualities, characteristics and pedigree, and may offer the opinions of witnesses who are familiar with such qualities.20

McCallister has been confirmed21, and its reasoning remains current in Oregon as to valuing companion animal deaths.22 Market value, that is, that amount for which an animal would sell as a product on the open market, is not the standard - special value is specifically allowed, and nearly every jurisdiction in the nation is in agreement at present.23

In addition to assessing the special value of the animal, animal lawyers hope to further the possibility that emotional distress damages suffered by the owner resulting from the loss of an animal may be available under a trespass to chattels theory, as a direct and natural result of a conversion, and as a component of loss of companionship.24 At least 15 separate and well-reasoned decisions within the last three decades have indicated that the emotional distress associated with the death of a companion animal is a properly considered measure of damages.25 Oregon may well soon follow that trend.

CRIMINAL LAW QUICKLY EVOLVING
Anti-cruelty laws can be generally summarized as those in which it is illegal to either intentionally, knowingly or recklessly hurt or kill an animal, or to neglect it in terms of failing to supply adequate food, shelter, water or veterinary care. Every state in the U.S. has some form of anti-cruelty law as a misdemeanor offense, and a bare majority make aggravated cruelty, in which torture or malicious or sadistic intent is involved, a felony. In 1995, when Oregon's felony anti-cruelty law26 was passed, just nine other states had felony provisions in their abuse laws; currently 31 states do so.27 Most states also have criminalized animal abandonment and animal fighting, including Oregon.28

Typically, sentences for anti-cruelty statutes can include limited jail time, fines, restitution to the owner of the affected animal or, if appropriate, the shelter housing the animal from time of seizure until sentencing, community service, counseling and forfeiture of the injured animal to the local humane society shelter or other authority for permanent adoption to a safer home.

Interestingly, the passage of Oregon's Ballot Measure 3 in last November's election has left Oregon's pre-conviction forfeiture statute, ORS 167.347 in legal limbo. Measure 3, called the Property Protection Act, prevents the government from permanently forfeiting property seized in criminal cases until the property owner has been convicted of a crime. Designed to apply primarily to drug cases involving cash, cars or houses, the measure inadvertently affects animals that have been seized for their protection and as evidence in animal abuse investigations because, say it with me: animals are also considered property under the law. Before Measure 3, a pre-conviction forfeiture hearing could be held shortly after the animals were seized, to determine if the abuse occurred, and if so, if the abuser could either post a bond to cover the animal's costs of care in custody until the trial or forfeit the animals for permanent placement, instead of having them languish in a shelter kennel for months or years until the trial date.

In December, Washington County Circuit Judge Mark Gardner said Measure 3 does apply to prevent any more pre-conviction forfeitures,29 while Marion County Circuit Judge Pamela Abernethy said the opposite in April.30 A lawsuit challenging Measure 3's constitutionality is currently wending its way through Oregon's appellate courts, while at press time the legislature was considering whether to refer the measure back to voters in the next election to clarify whether they intended Measure 3 to impact animals along with other forms of property. Measure 3 has no effect on Oregon's courts' ability to order forfeiture of abused animals after a conviction, so they do not have to be returned to their abuser.

WILLS AND TRUSTS: RECOGNIZING PETS
The notion of providing for the care of an animal after a testator's death has been capturing an increasing amount of attention lately both from the media and from lawyers. Companion animal trusts are now being included in estate plans, and a recent bill under consideration by Oregon legislators would allow courts to intervene when a pet trust's instructions are not properly executed.

CONTRACTS: PETS IN OUR DAILY TRANSACTIONS
In contract law, landlords and tenants often deal with animal-related issues, particularly in the arena of lease agreements concerning the presence or prohibition of pets.31 Landlords may find that their exposure to liability for maintaining a dangerous condition has broadened recently should they permit tenants to maintain vicious pets, regardless if the pets are on or off the premises.32 The classic doctrine of bailment addresses questions and disputes arising between those who board or treat animals and the animals' disgruntled owners.33
CONCLUSION
Clearly, the 'legal, social, or biological nature of animals' is an important element of cases and statutes in nearly every category of the law. Space constraints prohibit exploring here the intersection of animal law with - for example - constitutional law, family law and federal laws like the Endangered Species Act, Marine Mammal Protection Act, Wild Horses and Burros Act and the Humane Slaughter Act among others.

On a regular basis, animal law attorneys are challenged by fascinating legal issues. They may have to consider whether a client should seek custody of a family pet in the course of a divorce, whether animals as sales goods can be the focus of products liability actions,34 whether animal cells may be protected by patent, whether an animal represents the 'patient' of a veterinarian sufficient to heighten the standard of care in a malpractice action35, or whether a vicious pet may constitute a 'dangerous condition' for premises liability purposes.36 The most current spate of cases struggle to gauge the value of animal companionship, forcing judges and juries to confront the very boundaries of what comprises human/animal relationships. +

ENDNOTES
1. Pamela Frasch et al, ANIMAL LAW xvii (2000).
2. Jacobellis v. State of Ohio, 378 US 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Justice Stewart concurring)
3. Del. Code Ann. section 1325
4. Mo. Ann. Stat. 578.012
5. ORS 167.310(1)
6. N.Y. Agric. & Mkts., Art. 26 section 350
7. Cal. Penal Code section 599B
8. Haw. Rev. Stat. section 711-1109(b)
9. Animal Welfare Act regulations at 9 C.F.R. 1.1
10. Tex. Penal Code Ann. section 42.09
11. Del. Code Ann. Title 7 section 1730(5)
12. La. Rev. Stat.Ann section 102.1, S.C. Code Ann. section 47-1-40, Va. Code Ann. section 3.1-796
13. ORS 167.335(3), (5), (4).
14. S.D. Codified Laws section 40-1-1
15. ME. Rev. Stat. Ann. Sections 4011, 1031
16. See, e.g., McCallister v. Sappingfield, 72 Or. 422 (1914); Stull v. Porter, 100 514 (1921).
17. See, e.g., Melton v. South Shore U-Drive Inc. 303 N.Y.S.2d 751 (N.Y. App. Div. 1969); Stettner v. Graubard 368 N.Y.S.2d 683 (N.Y. Town Ct. 1975); Rimbaud v. Beiermeister 154 N.Y.S. 333 (N.Y. App. Div. 1915); Kling v.US Fire Ins. Co. 146 So.2d 635 (La. App. 1962); Blauvelt v. Cleveland 190 N.Y.S. 881 (4th Dept. 1921); Gluckman v. American Airlines, Inc. 844 F.Supp. 151 (SDNY 1994); Daughen v. Fox 539 A.2d 858 (Pa. Super.1988); Roman v. Carrol 621 P.2d 307 (Ariz. Ct. App. 1980); Jankoski v. Preiser Animal Hospital 510 NE2d 1084 (Ill. App. Ct. 1987); Fowler v. Ticonderoga 516 N.Y.S.2d 368 (N.Y. App. Div. 1987); Julian v. DeVincent 184 SE2d 535 (W.Va. 1971); Smith v. Palace Transportation Co. 253 N.Y.S. 87 (N.Y. Mun. Ct. 1931); McKinney v. Robbins 892 S.W.2d 502 (Ark. 1995); Bueckner v. Hamel 886 S.W.2d 368 (Tex.App. 1994); City of Canadian v. Guthrie 87 S.W.2d 316 (Tex.App. 1932).
18. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543 at 547 (1982) (emphasis added).
19. Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d. 182 (N.Y. 1979) Morgan v. Kroupa 702 A.2d 630 (Vermont 1997); Brousseau v. Rosenthal, 443 N.Y.S.2d 285 at 286-287 (N.Y. 1980).. La Porte v. Associated Independents, Inc., 163 So.2d 267 at 268 (Fla. 1964).
20. McCallister v. Sappingfield, supra, 72 Or. 422 at 427 (1914) (citing to Prettyman v. Oregon R. & N. Co., 13 Or. 341 (1886) (emphasis added).
21. See, Barber v. Motor Investment Co., 136 Or. 361, 366 (1931); Mattechek v. Pugh, 153 Or. 1, 11 (1936).
22. See, Green v. Leckington, 192 Or. 601 (1951).
23. See, Stull v. Porter 100 Or. 514 (Or. 1921); Fredeen v. Stride, 269 Or. 369 (Or. 1974); Jones v. Craddock 187 SE 558 (N.C. 1936); Griffin v. Fancher 20 A.2d 95 (Conn. 1941); Hyland v. Borras 719 A.2d 662 (NJ Super AD 1998); Soucy v. Wysocki 96 A.2d 225 (Conn. 1953); Wertman v. Tipping 166 So.2d 666 (Fla. App. 1964); Levine v. Knowles 197 So.2d 329 (Fla. App. 1967); Brown v. Crocker 139 So.2d 779 (La. App. 1962); Quave v. Bardwell 449 So.2d 81 (La. App. 1984); Fritts v. NY and NER Co. 26 A. 347 (NY 1902); City of Garland v.White 368 S.W.2d 12 (Tex. Civ. App. 1963); Wilson v. City of Eagan 297 N.W.2d 146 (Minn. 1980); Paguio v.Evening Journal Assn. 21 A.2d 667 (N.J. 1941).
24. McGregor v. Barton Sand & Gravel, Inc., 62 Or.App. 24 at 31 (1983); Fredeen v. Stride, 269 Or. 369 at 372-373 (1974).
25. Campbell v. Animal Quarantine Station, Etc. 632 P.2d 1066 (Haw. 1981); Peloquin v. Calcasieu Parish Police Jury 367 So.2d 1246 (La. App. 1979); Lincecum v. Smith 287 So.2d 625 (La. App. 1973); Gill v. Brown 695 P.2d 1276 (Idaho Ct. App. 1985);Knowles Animal Hospital v. Wills 360 So.2d 37 (Fla. Dist. Ct. App. 1978); Animal Hospital v. Gianfrancisco 418 N.Y.S.2d 992 (N.Y. Dist. Ct. 1979); Richardson v. Fairbanks North Star Bureau, 705 P.2d 454 (Alaska 1985); Broussaeu v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. 1980); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964); Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d. 182 (N.Y. 1979); Morgan v. Kroupa 702 A.2d 630 (Vermont 1997); Paul v. Osceola County 388 So.2d 40 (Fla. Dist. Ct. App. 1980); Soucek v. Banham 524 N.W. 2d 478 (Minn. Ct. App. 1995); Johnson v. Wander 592 So.2d 1225 (Fla. Dist. Ct. App. 1992); Burgess v. Taylor 2001 WL 236172 (Ky. App.).
26. ORS 167.322.
27. The states are: Alabama, Arizona, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, Washington, Wisconsin.
28. ORS 167.340, 167.355, 167.365
29. State v. Hagen, Washington County Circuit Court No. D0008124M, Dec. 8, 2000.
30. Lincoln Interagency Narcotics Team et al v. Kitzhaber et al, Marion County Circuit Court No. 00C-19878, April 13, 2001.
31. Relative Rights and Liabilities as Between Landlord and Tenant with Respect to Keeping of Dogs, Birds, or Other Pets, 18 ALR 2d 880, section 6 (1951).
32. See, Park v. Hoffard, 315 Or. 624 (1993).
33. See, e.g., Gebert v. Yank, 172 Cal.App. 3d 544 (Cal. App. 1985).
34. See, Sease v. Taylor's Pets, Inc. 74 Or.App. 110 (1985).
35. Compare Southall v. Gabel 277 N.E. 2d 230 (Ohio App. 1971) and Hudson v. McDaniel 1989 WL 1650 (Ohio App. 9 Dist.) with Price v. Brown 680 A.2d 1149 (Penn. 1996).
36. See, Park v. Hoffard 315 Or. 624 (1993); Jeffrey v. Caesar 1998 WL 106240 (Terr. V.I.).

AND ON THE FIFTH DAY...

Oregon statutory law distinguishes between several different classes of animal. Livestock are defined as those domestic animals that include horses, mules, cattle, sheep, pigs and fowl. ORS 596.010(3). (But compare ORS 596.615, referring to livestock as animals raised for consumption.) Exotic animals are defined as those cats and dogs (except domestic cats and dogs), primates, wolves and bears not indigenous to the state. ORS 609.305. Predatory animals are defined as coyotes, rabbits, rodents and birds that are destructive to agricultural crops. ORS 610.002. Game animals include detailed lists of certain birds, fish and mammals commonly hunted for sport in the state. ORS 496.004 et seq. Pets are defined as those animals, other than livestock or poultry, owned by a person. ORS 167.310(4). (Pets are sometimes described in the alternative as 'companion animals.') Still other smaller and more specialized categories exist as well. +