Not Your Coffee Table: An Evaluation of Companion Animals as Personal Property

AuthorCasey Chapman
Pages187-227
NOT YOUR COFFEE TABLE: AN EVALUATION OF
COMPANION ANIMALS AS PERSONAL PROPERTY
CASEY CHAPMAN*
I. INTRODUCTION
Often when a chair or coffee table gets too old o r out o f style, we toss
it t o the curb or give it away, glad that we had made good use of it. W e
then run do wn to our local Pottery Barn an d get a new one, with that old
table long forgotten. It is only propert y after all. Why is it t hen, when o ur
pets get too old we do not toss th em to the curb an d replace them without
second thought? As man y state l aws and many courts have stated, animals
are merely personal property, and thus, should be treated no differently
than a coffee table.1 Yet to most peo ple, their pets are much more than
personal property.2 Peop le have willed their estates to their pets upon
Copyright © 2009, Casey Ch apman
* I chose to write this comment based on a personal expe rience involving a defective
product tha t injured my animal. Luckily, my animal was fine, but after further research I
discovered th at many anim als have died or been seriously injured due to this product, and
yet i t is still on the she lves. Because there are virtually no damages available to animal
owners whose pets are injured or k illed by third parties, culp able offenders often go
unpunished and animal o wners uncompensated. Although a defective product prompted me
to write on this topic, the article itself is more general and broa der in scope. I hope to
reflect my sincere b elief that animals occupy a special place somewhe re between humans
and personal property, and that societal values support an expansion of rights for animal
owners.
1 See, e.g., CAL. PENAL CODE § 491 (West 1997); MD. ANN. CODE art. 2 4, § 11-506
(2005); OHIO REV. CODE ANN. § 955.03 (West 1994); W. VA. CODE ANN. § 19-20-11
(LexisNexis 2007); Gluckm an v. Am. Airlines, Inc., 844 F. Supp. 151, 15 8 (S.D.N.Y. 1994)
(holding there is no independent cause of action for loss of th e companionship of a pet,
which is personal pro perty); Mi tchell v. Heinrichs, 27 P.3d 309, 313–14 (Alaska 20 01)
(holding dogs have th e legal status of personal property and recovery for the wrongful death
of a dog is limited to its market value); Pantelop oulos v. Pantelopoulos, 86 9 A.2d 280, 284
(Conn. Super. Ct. 2005) (ho lding the owner of an intentionally killed animal could n ot
recover for emotion al distress); Lockett v. Hill, 51 P.3d 5, 7–8 (Or. Ct. App. 200 2) (holding
the owner of a negl igently killed animal could not reco ver for emotional distress); Carbasho
v. Musulin, 618 S.E.2d 368, 371 (W. Va. 2 005) (holding sentimental value and emotional
distress are not recoverable w hen a pet is killed because pets are perso nally property).
2 See, e.g., Carbasho, 618 S.E.2d at 371 (recognizing the emotional attachment people
have to their pets).
188 CAPITAL UNIV ERSITY LAW REVIEW [38:187
death,3 engaged in custod y battles ov er pets when a marriage ends,4 and
even fought sharks and alligators to save their pets .5
However, when a third party’s conduct injures an animal, many states
do not allow for r ecovery beyond the market value of the animal. 6 This
means that an animal owner can recover only what a person would pay for
an ani mal of similar breed, age, and health in the marketplace.7 For most
owners of mutts, s trays, or rescue animals , this means l ittle, if any,
recovery. Initially, this d oes not seem completely outrageous, but upon
greater examin ation of the issue, it i s. For exa mple, under th e law of many
states, an angry neighbor can walk in to your yard, shoot your dog before
your eyes, an d you can r ecover only the fair ma rket value of your dog Fido
(depreciated of co urse). Onl y after some st ates’ legi slatures began to
realize the unfairness of this situation did these states begin to pu t statu tes
on the boo ks, all owing and expanding both damages and causes of action
available to animal owners.8
It is well establi shed in many states t hat damages for sentimen tal
value, m ental suffering, and emotional distress are not recoverable for the
loss of a pet dog or cat .9 Although this is a rule in th e majority of
jurisdictions , there are man y adam ant, w ell-reasoned, and pas sionate
decisions that more approp riately reflect the value society has placed on
3 E.g., Alan Feuer, Helm sley, Through Will, Still Calling the Shots, N.Y. TIMES, Aug.
30, 2007, at B2 (bequeath ing twelve million dollars to a dog).
4 E.g., Hannah Sel igson, Couple Splits Up—Pe t Custody Battle Begin s, CNN.com, Oct.
2, 2008, http://www.cnn. com/2008/LIVING/wayoflife/10/02/lw.pet.cus tody/index.html.
5 E.g., F lorida Man Punches Shark to Save His Dog, CBSNews.com, Sept. 30, 2008,
http://www.cbsnews.com /stories/2008/09/30/national/main44902 83.shtml; Man Sacrifice s
Finger to Save Dog from Alligator, WPBF.com, July 21, 200 9, http://www.wpbf.com/news/
20136681/details.html.
6 See sources cited supra no te 1.
7 See, e.g., Mitchell v Heinri chs, 27 P.3d 309, 313–14 (Alaska 2001).
8 See, e.g., CAL. CIV. CODE § 3340 (West 1997); CONN. GEN. STAT. ANN. §§ 2 2-351 to
22-351a (West Supp. 2009); MD. CODE ANN., CTS. & JUD. PROC. § 11-110 (LexisNexis
2006); TENN. CODE ANN. § 44-17-403 (2007).
9 E.g., Mitchell, 27 P.3d at 31 3–14 (ho lding dogs have the legal status of personal
property and recovery for the wrongful death of a dog is lim ited to its market value);
Pantelopoulos v. Pantelopo ulos, 869 A.2d 280 , 284 (Conn. Super. Ct. 2005 ) (holding the
owner of an in tentionally killed animal could n ot recover for emotional di stress); Lockett v.
Hill, 51 P.3d 5, 7– 8 (Or. Ct. App . 2002) (holding the owner of a negligently killed animal
could not recover for emotional distr ess); Carbasho v. Musulin, 618 S.E.2 d 368, 371
(W.Va. 2005) (holding neither sentimental value nor emotional distress are recoverable
when a pet is killed becaus e pets are personally property).
2009] ANIMALS AS P ERSONAL PR OPERTY 189
animals.10 One example is Just ice Starcher’s dissenting opinion in
Carbasho v. Musuli n.11 Her dissenting opinion outlined th e points that I
will explore in this arti cle, including why the stat us quo is inap propriate
and why we, as part of a more comp assionate civilization, need new
judicial and statutory standards that abandon the concept of animals as
mere pers onal property. Just ice Starcher t ook i ssue wit h th e court’s
decision statin g:
This opinion is simply medieval. The majority blithely
says that “our case law categorizes dogs as p ersonal
property”—that “d amages for sentimental value, mental
suffering and emotio nal dis tress are not recoverable” . . . .
In coming to this conclusion, the majority overlooks the
fact that the “law” i n question is the common law which i s
controlled by this Court . . . . When t he common law of
the past i s no long er in har mony with the institutions or
societal conditions of the present, this Court is
constitutionall y empowered t o adjust th e common law to
current needs.12
The above quote illustrates the val ue society places on animals, and it i s
this societal val ue which necessitates a change in the general rule. Courts
and legislatures need a clear set of guidelines that give animal own ers a
cause of acti on t o bri ng against offenders and allow f or damag es for their
genuine and socially understood mental anguish. Although many authors
have examined th e treatment o f companion ani mals in the law,13 this article
10 See, e.g., Co rso v. C rawford Dog & Cat Hosp., Inc., 415 N.Y.S .2d 182, 183 (N.Y.
Civ. Ct. 1979) (“[A] pet is not just a thing but occupie s a special place somewhere in
between a person and a piece of person al property.”); Bueckner v. H amel, 886 S.W.2d 368,
374 (Tex. App. 1994) (Andell, J., concurring) (“People who love and care for animals
should not be forced to accept as compensation for the ir loss the amount that the animal
would bring in the m arket.”); Carbasho, 618 S.E.2d at 37 2 (Starcher, J., dis senting)
(arguing that th e continued refusal of recovery for sentiment al value and emotional distress
resulting from the loss o f a pet maintains “primitive limits o f the common law” and fails “to
adjust to the realities of the modern world”).
12 Carbasho, 618 S.E.2d at 372 (Sta rcher, J., dissenting).
13 See, e.g., M ary Margaret McEachern Nunalee & G. Robert Weedon, Modern Trends
in Veterinary Malpractice: How Our Evolving Attitud es Toward Non-Human Animals Will
Change Veterinary Medicine, 10 ANIMAL L. 125, 127 (2004); Amie J. Dryd en, Comment,
Overcoming the Inadequacies of Animal Cruelty Statutes and the Property-Based V iew of
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