CONSIDERING THE PRIVATE ANIMAL AND DAMAGES.

• Date: 01 April 2021
• Author: Cupp, Richard L., Jr.
• Published date: 01 April 2021
• Author: Cupp, Richard L., Jr.

ABSTRACT

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have--in dramatic fashion--moved from academic debate to high-profile litigation. Focusing on two recent cases, this short Article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse's owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications of seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern about animal welfare is rapidly increasing, although more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases may continue to fail in the short term, but regardless of short-term failure or success, analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high--success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the possibility of misguided rulings creating dangerous animal legal personhood through such lawsuits is real.

INTRODUCTION I. JUSTICE K VERCHER: VICTIMHOOD, PERSONHOOD, AND A RENAMED HORSE A. Dangerously Bad Facts B. Distinguishing Victimhood and Legal Personhood C. A Horse is a Horse, of Course, of Course--but It Is Not a Table or a Chair 1. Inviting Potentially Massive, Unmanageable, and Societally Harmful Litigation 2. Legislatures and "Extraordinary Steps" 3. Animals as Property, but Not "Mere" Property 4. Discouraging Animal Protection Reforms by Legitimizing Slippery Slope Concerns 5. Legal Personhood's Connection to a Norm of Moral Agency Sufficient to Bear Legal Accountability 6. A Straightforward Animal Welfare Solution D. Oral Argument Before the Oregon Court of Appeals II. NARUTO v. SLATER: DAMNING ANIMAL PLAINTIFFS, BUT PRESENTING MIXED POTENTIAL IMPLICATIONS A. Naruto's Negative Implications for Animal Plaintiff Damages Lawsuits 1. Likely Destroying the Possibility of Animal Plaintiffs in Copyright Lawsuits into the Foreseeable Future 2. Highlighting the Connection between Rights and a Norm of Duty that Plagues Animal Personhood Lawsuits 3. Strongly Condemning the Assumption that Animal Rights Groups May Effectively Serve as Animals Next Friends 4. Criticizing the Cetacean Decision and Calling for a Ninth Circuit En Banc Decision or for the Supreme Court to Overrule It 5. Equating "Persons" with Humans and Their Proxies B. Naruto's Nuanced Potential for Emboldening Animal Plaintiff Damages Lawsuits 1. Bad Publicity as Good Publicity? 2. Power to File--and Lose--Lawsuits Claiming to Represent Animals CONCLUSION INTRODUCTION

This short article analyzes the policy implications and potential impact of two highly publicized recent cases seeking to make animals private law damages plaintiffs. (1) Part I addresses potential implications of Justice v. Vercher, (2) an Oregon case filed in 2018. In Vercher an animal rights organization put forward a neglected horse as a plaintiff to sue its former owner for tort damages in Oregon. This Part addresses why this lawsuit, although still in progress, presents dangerously sympathetic facts and is a particularly significant innovation by animal rights activists. This Part also articulates how allowing the horse to serve as a tort damages plaintiff would greatly harm society and why the radical step of making the horse a plaintiff is unnecessary to obtain justice in the case.

Part II addresses how the Ninth Circuit's 2018 ruling in the famous--or perhaps infamous--"monkey selfie" copyright case, Naruto v. Slater, (3) implicates the viability of future private law animal plaintiff damages lawsuits. This Part analyzes several ways in which the Ninth Circuit's decision will appropriately impede future efforts to make animals damages plaintiffs, both in copyright and in other areas, such as torts. However, the enormous publicity generated by the facts and legal claims in Naruto is something of a wild card, and it is possible that this publicity could in some respects benefit animal plaintiff damages claims over time.

The Conclusion concludes that--although future animal plaintiff copyright claims and future animal plaintiff tort claims are likely to follow somewhat different trajectories--they are related in the sense that they represent private law damages actions as a potential path to breaching the legal barrier between humans and animals. Attaining legal personhood for animals is perhaps the "holy grail" for some animal rights activists, and because the societal implications of success would be so dramatic, it seems likely that both Vercher and Naruto will serve as trailblazers for a growing wave of dangerous animal plaintiff damages lawsuits.

1. JUSTICE V. VERCHER: VICTIMHOOD, PERSONHOOD, AND A RENAMED HORSE

   At first blush, asserting that abuse victims who can establish a sufficient degree of fault and reasonably foreseeable causation of harm should be entitled to tort damages from their abusers hardly seems controversial. But when the "victim" is a horse, allowing such a lawsuit would signal a dramatic change in our tort system and have societal implications well beyond tort law.

   In 2018 the Animal Legal Defense Fund (hereafter "ALDF") filed Justice v. Vercher in Washington County, Oregon. (4) After being dismissed by a trial court for lack of standing, the lawsuit is now progressing through the state's appellate system. (5) In the lawsuit, the ALDF asserts that a criminally neglected horse should be permitted to recover tort damages against its former owner.

   Scholars have previously debated the idea of tort damages lawsuits naming animals as plaintiffs, (6) but the Vercher case is the most significant effort to date to shift the concept from the academy to the courthouse. For several reasons, the lawsuit has weighty implications.

   First, the context is novel and explosive. Most of the controversial lawsuits that have thus far unsuccessfully sought animal legal personhood in the United States in recent years--some of them still working their way through appellate courts--have focused on the particularly strong cognitive abilities of species kept by humans only in relatively small numbers (specifically, chimpanzees, cetaceans, and elephants), rather than focusing on the much broader capacity to suffer that creates the basis for identifying abused animals as victims for some purposes. (7) If the Vercher claim were to succeed, potentially millions of animals' legal status might change, with enormous financial and societal implications. (8)

   Second, the media have highlighted the case due to its unsettling facts and its novel legal theories, enhancing its potential for broad influence. (9) Third, Oregon's legislature and courts have evidenced distinctive enthusiasm for legal reform that would provide better protection for animals. (10) Thus far the state's evolution has been positive, but this case will test whether Oregon's courts might be tempted to step beyond animal welfare to accept radical animal rights dressed in the comfortingly routine language of following precedents.

   Fourth, the ALDF is perhaps the nation's largest and most influential legal organization pressing for animal legal rights. (11) The ALDF likely has the resources to pursue this case and perhaps future analogous cases aggressively, and it may have less of a credibility problem with the courts than would some other animal rights groups.

   Some jurisdictions have expanded civil remedies against animal abusers in recent years. However, this expansion has focused on awarding damages to pets' owners against third parties who have intentionally abused the owners' pets, rather than on providing civil remedies for the animals themselves. (12) An overwhelming majority of courts deny pet owner emotional distress damages when a pet is negligently harmed or killed by a third party. However, some courts now allow such damages for intentional and malicious harm to another's pet. Although rejecting owner emotional distress damages is wise in negligence cases, (13) allowing such damages when a pet is, with malice, intentionally harmed represents good legal reform. (14)

   In Vercher the ALDF is--with much fanfare--urging Oregon's courts to push the envelope much further. Utilizing Oregon legislation and case law, the ALDF contends that an animal's purported "guardian" should be permitted to pursue damages against an animal's abuser in the animal's own name. (15) In other words, the lawsuit in effect seeks to treat an animal as a legal person with a right to pursue civil remedies for tortious harms inflicted upon it.

   1. Dangerously Bad Facts

      Vercher's facts are appalling. According to the complaint, defendant Gwendolyn Vercher owned the horse named as the plaintiff. At that time the horse was named Shadow. (16) A neighbor called a horse rescue organization, requesting that the organization "take custody of [Shadow] because he was underfed and emaciated." (17) The neighbor also urged Ms. Vercher to take Shadow to a veterinarian to be evaluated. When Ms. Vercher took Shadow to a veterinarian, the veterinarian "observed that [Shadow]'s penis had prolapsed and could not retract because it was so swollen and heavy." (18) The veterinarian described the horse's penis as "red [and] raw" and "oozing serum," and the "skin was chapped and scabbed." (19)

      Ms. Vercher later "surrendered" the horse to an organization named Sound Equine Options for care. (20) The organization's...