Feature |
Nature of the BeastIs animal law nipping at your heels? |
By Geordie L. Duckler and Dana M. Campbell |
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? 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 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):
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):
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 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 CONTRACTS:
PETS IN OUR DAILY TRANSACTIONS 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 |
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. + |
ABOUT THE AUTHORS
Geordie
L. Duckler is a partner at Blake & Duckler, Portland. A significant number
of his clients are companion animal owners, and his practice focuses on civil
litigation involving animal-related injuries and issues. He authored a nationally
recognized law review article on laws applying to zoo animals and has recently
contributed a chapter to an upcoming popular book surveying the future of zoos.
He received his doctorate in biology from UCLA in 1997; as an active research
scientist with that institution, he published numerous academic articles in
several professional scientific journals assessing the role of disease in ancient
and modern animal populations. He has taught anatomy and physiology at colleges
in both California and Oregon and is licensed to practice law in both states.
Dana M. Campbell of Portland is a staff attorney with the anticruelty division of the Animal Legal Defense Fund, a national nonprofit organization that works to enforce and enhance laws pertaining to the welfare of animals. Campbell is an adjunct professor teaching Animal Law at Northwestern School of Law at Lewis and Clark College, and travels around the country speaking to law enforcement officers, judges and community groups about preparing animal abuse cases for court, and the connection between violence against humans and animals. She was a deputy district attorney in Salem and in Maui, Hawaii.