Measuring Damages for Tortious Injury to Companion Animals
| Publication year | 2013 |
| Pages | 21 |
By Katherine A. Burke
Articles The Civil Litigator
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Bryan Cave HRO—(303) 417-8510, timothy. reynolds@bryancave. com
About the Author
Katherine A. Burke owns and practices law with Colorado Animal Law, LLC in Durango. She will be co-chair of the CBA Animal Law Committee—(970) 385-7409, kburke@coloanimallaw.com, www.coloanimallaw.com.
Animal injury cases present unique difficulties in measuring damages. Legally considered personal property, companion animals are unlike other pieces of chattel and usually cannot be valued in traditional ways. For this reason, economic, non-economic, and emotional distress damages have unusual features in animal cases. To properly compensate plaintiffs whose animals have been wrongfully injured, killed, or taken, practitioners should carefully evaluate the types of compensatory damages available in these special property cases.
The loss of a pet may be as heart-rending and life-altering as the loss of a home, especially when caused by someone else’s wrongful conduct. Eighty-six percent of Americans view their companion animals as part of the family.[1] As a nation, we spend billions of dollars on pets annually.[2] Reacting to natural disasters, pet owners or rescue workers often take great risks to save animals. However, because companion animals are legally classified as personal property, [3] courts have a difficult ? time identifying and compensating the devastation when they are injured or killed. These issues are reaching the courts, albeit still rarely, [4] and are sure to increasingly grab public and legal attention.
Animal law is a growing specialty. Currently, 142 law schools in the country offer courses in the subject.[5] Thousands of law students are members of student chapters of the national attorneys’ group, the Animal Legal Defense Fund.[6] Numerous national conferences are held each year for animal law practitioners. The American Bar Association and several state bar associations have animal law sections or committees, and the CBA is forming an Animal Law Committee.[7] This flourishing interest in the legal status and treatment of animals brings animal-related legal issues into the spotlight.
Animal law touches on almost every aspect of the legal profession. For example: all states have criminal prohibitions on animal cruelty; animals can be implicated in estate planning;[8] animals often are at issue in dissolution of marriage cases; contracts can cover animals in a variety of contexts; and animals in agriculture, entertainment, and science are covered by a complicated network of state and federal law. In all of these areas and when animals are injured or killed, civil litigators may get involved.
Despite social recognition of the importance of companion animals in our lives, defining and measuring adequate damages when they are lost or injured is an uphill battle. Rules of recovery for property damage can be stringent and, in the view of those suffering loss, starkly inappropriate when the property at issue was a living, breathing, companionable family member. Without legislation or common law creating new categories of damages for harm to animals, or simply a new legal status for animals, parties and attorneys seeking damages for losses from wrongful injury to a companion animal must tread a complex path.
The Claims Asserted Set the Stage
Torts against animals arise in a number of factual contexts. Neighbors or strangers might maliciously or accidentally injure or kill animals. The animals might be on their owners’ properties or at large, and they might be causing damage or simply be idle. Groomers or boarders might negligently injure or kill animals left with them on a bailment. Veterinarians can commit professional malpractice. Animals of particular value might be stolen or "kidnapped." As many Colorado municipalities experiment with allowing traditionally agricultural animals—such as chickens and goats—in suburban areas, nuisance issues arise and traditional pets come into conflict with these newcomers. Pet dogs and cats can be pitted against each other, or against livestock and wildlife, with disastrous results. Thus, any number of legal claims might be found to fit the circumstances of a tortious animal injury.
To a large extent, the legal theories of the case determine the types of damages available. Typical claims might include common law claims, such as negligence, conversion, trespass to chattels, and infliction of emotional distress. There also may be statutory claims, such as "civil theft, "[9] consumer protection claims, and professional negligence. Such statutes may set forth particular categories or computations of damages available, including treble damages and attorney fees.[10] Setting aside specific statutory damages provisions for the purposes of this article, in most instances, the damages available for torts to companion animals can be sorted into four categories: (1) economic damages; (2) non-economic damages; (3) emotional distress damages; and (4) punitive damages.
Despite the apparent simplicity of this list, the application of these principles in animal cases is challenging because of the uneasy legal status of animals. An exception is punitive damages, which have no special features in animal cases. As in any other civil matter, punitive or exemplary damages are available on a showing of malicious or willful and wanton conduct beyond a reasonable doubt.[11] However, the three remaining categories must be carefully examined in animal loss cases. Litigants must ask which of these categories is available, with a careful eye to the subcategories within each area.
The following sections of this article discuss various approaches to valuing economic damages for loss and injury to pet animals. The discussion includes the complexity of two related but distinct categories of damages as relevant to animal tort cases—non-economic damages and emotional distress damages. The final section points out potential ambiguities and pitfalls in this area.
Economic Damages—The Value of an Animal
Economic damages typically are easier to measure than the other types of damages mentioned above. However, in animal cases, even this relatively simple damages determination is not always straightforward.
Economic compensation for property loss generally is measured by the diminution in the value of the property after the damage, or the cost to repair or replace the property, all with reference to the fair market value.[12] Importantly, most companion animals have negligible economic value—there is no marketplace for someone else’s family pet.
Nonetheless, courts and litigants are aware that society places great value on its companion animals—$50.96 billion in 2011, to be specific.[13] We can presume that the financial importance of companion animals is a reflection of their social and emotional importance.[14] This social reality chafes against courts’ application of a replacement or fair market value measure for household pets. This is not a new issue. As early as 1957, Colorado courts puzzled over how the legal system should accommodate the special place of dogs in the community’s esteem.[15] Fifty-six years later, pet owners and attorneys continue to press the question.
The Unremarkable Actual Value Rule
Seeking to ameliorate the conflict between property loss rules and social reality, several states have adopted a test referred to as the "actual value" or "special value" measure for tort cases involving animals.[16] At least six states have overtly adopted a rule that companion animals will be valued with regard to their actual value to the owner, rather than by a market value measure alone.[17] At least three other states have discussed the issue with general approval but have not yet expressly adopted it.[18] Factors generally part of the actual value test include: usefulness and services provided; age and condition of the animal; original purchase price; cost to repair or replace; time and money invested in training and medical care; and duration of the relationship.[19]
The actual value test is unremarkable. Although Colorado courts have not discussed the issue in a published decision, the test is compatible with existing state law. For example, The Restatement (Second) of Torts § 911, comment e, discussed with approval in Webster v. Boone, [20] clearly recognizes
various standards for measuring damages for the loss of . . . personal property which either [has] no market value or whose value to the owner is greater than [its] market value.
In particular, usefulness is an established aspect of an animal’s value. As early as 1900, the Colorado Court of Appeals looked at a cow’s usefulness as a measure of damages in a replevin case.[21] In 1957, the Colorado Supreme Court observed in dicta that dogs are "justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and above all, for their natural companionship with man."[22] Enacted in the 19th Century, CRS § 13-21-104 recognizes the value of animals’ "uses" by imposing a fine on a bailee who impermissibly uses someone else’s animal—as opposed to harming or stealing the animal —during the bailment.
Thus, it appears uncontroversial that economic damages for lost or injured pets include factors such as usefulness and services provided, age and condition of the animal, original purchase price, cost to repair or replace, time and money invested in training and medical care, and duration of relationship. More controversial subcategories of...
To continue reading
Request your trial