Recovering for the loss of a beloved pet: rethinking the legal classification of companion animals and the requirements for loss of companionship tort damages.

• Author: Sirois, Lauren M.

Under U.S. law, animals are considered the property of their human companions. With this classification, individuals are granted the right to own, use, and control their animal property as they see fit. To many, though, the relationship between man and his companion animal fits uncomfortably within the idea of property ownership. To these individuals, companion animals, such as dogs and cats, are more than property: they are best friends, confidants, and integral parts of the family. However, unlike certain familial relationships--such as that of a husband and wife or a parent and child--the bond between a human companion and his or her companion animal is devalued under tort law. When a companion animal is negligently or intentionally injured or killed, no matter how beloved the animal is to his or her human companion, the animal is still only viewed as property under the law. Because of the companion animal's classification as property, emotional damages related to the bond between the animal and the plaintiff are unavailable, preventing those who have been harmed from fully recovering for their loss.

INTRODUCTION I. COMPANION ANIMALS AS PROPERTY UNDER U.S. LAW A. The History of Property and the Classification of Animals B. How the Property Classification Impacts Human Companions II. THE RECOVERY OF LOSS OF COMPANIONSHIP DAMAGES UNDER U.S. TORT LAW III. THE EVOLUTION OF LOSS OF COMPANIONSHIP DAMAGES FOR COMPANION ANIMALS A. Legislative Developments 1. Tennessee 2. Illinois 3. Connecticut B. Common Law Developments 1. The Acceptance of Loss of Companionship Damages as Part of the "Actual Value" of a Companion Animal 2. The Rejection of Loss of Companionship Damages Under the Actual Value Test and Due to the Property Classification of Animals 3. The Acceptance of Other Emotional Damages IV. THE MINORITY TREND: ARGUMENTS FOR EXPANDING LOSS OF COMPANIONSHIP DAMAGES TO COVER COMPANION ANIMALS A. Expansion Promotes the Goals of Tort Law B. Expansion Is a Natural Next Step C. Expansion Is Rational Because Companion Animals Already Receive Protection Unique to "Property" Under the Law V. PROMOTING THE MINORITY VIEW: APPROACHES TO EXPANDING TORT RECOVERY TO INCLUDE LOSS OF COMPANIONSHIP DAMAGES TO HUMAN COMPANIONS A. Where Should Change Occur? Advocating for the Legislature B. A Special Status of Companion Animals: Creating a Unique Semi-Property Classification 1. A New Semi-Property Classification 2. Oppositional Arguments and Responses in Rebuttal C. A New Subset of Loss of Companionship Damages Claims 1. Description of a New Recovery Statute 2. Oppositional Arguments and Responses in Rebuttal CONCLUSION INTRODUCTION

The bond between a human and a dog or a cat, the two most accepted species of "companion animal," (1) is anything but novel. The domestication of animals is estimated to have occurred 12,000 to 14,000 years ago. (2) Specifically, the domestication of dogs is thought to have occurred during this time period, (3) while it is estimated that cats became household animals roughly 4500 years ago. (4) Today, over 68 million domesticated dogs are living in U.S. homes, (5) with 39% of the U.S. population owning at least one dog. (6) Many companion animals are "named, nurtured, and treated like children, siblings, or best friends" (7) and provide their human companions with "faithful, intimate companionship that is unconditional and nonjudgmental." (8) Companion animals are more than just pets; to many, they are part of the family. (9) Margit Livingston, Professor of Law at DePaul University College of Law, argues that human companions build "sentimental attachment" to their companion animals, an emotional connection based upon the appreciation of their companionship--"their loyalty, their physical proximity, [and] their dependence upon us"--which is similar to the attachment one would have toward another human being. (10)

The death of a companion animal can be emotionally and psychologically devastating for a human companion. (11) In fact, human companions can experience a sense of loss similar to the loss felt when a human family member passes away. (12) Even so, when a companion animal dies due to the negligent or intentional acts of another, the U.S. tort system inadequately compensates the human companion. U.S. law almost universally denies recovery for loss of companionship damages in tort actions when the injured or deceased victim is a companion animal. (13) Why? First, companion animals are classified as the property of their human companions, even though human companions do not think of their companion animals as property, (14) leaving plaintiffs with limited recourse to recover for their loss. (15) Restricted by the property classification, plaintiffs can only recover the "fair market value" of their companion animals, (16) and loss of companionship claims are almost always unanimously dismissed. (17)

Second, under the history of loss of companionship and its predecessor, loss of consortium, recovery is limited to specific relationships. Most states have limited loss of companionship recovery to husbands and wives, with a few providing recovery for parents and children. (18) This treatment contradicts how many humans view their companion animals and the bonds between them. Consequently, it fails to fully compensate those who have been injured. (19)

Fortunately, a minority position is slowly gaining steam. In recent years, a small number of state legislatures and courts have allowed individuals to receive compensation for the loss of companionship of their injured or deceased companion animal. For example, Tennessee's "T-Bo Act" allows for recovery of up to $5000 in noneconomic damages for the negligent or intentional killing of a domesticated dog or cat under certain conditions, (20) while an Illinois statute allows plaintiffs to recover emotional and punitive damages for certain acts toward their animals. (21)

Additionally, some courts have also departed from the common law's market value recovery limit for the loss of a companion animal. In Brousseau v. Rosenthal, the New York County Civil Court acknowledged that "actual value to the owner" must be assessed, and in doing so, the court must consider loss of companionship. (22) Courts have also expressed their discontent with the property classification of companion animals: in Corso v. Crawford Dog & Cat Hospital, Inc., a New York trial court recognized that "[a] pet is not an inanimate thing that just receives affection[,] it also returns it." (23)

While still a minority position, (24) what do these legislative and judicial actions mean for the legal classification of companion animals as property and the scope of loss of companionship damages claims? Can we justify the minority position within our current legal framework or must we rethink the law? This Comment will explore the recent minority developments, argue that they reflect a growing movement towards recognizing that companion animals are more than just property and that human companions deserve just compensation from our legal system, and consider two proposals outlining how the law could better address the loss of a companion animal.

Part I will review the classification of companion animals as property under U.S. law. After introducing the general concept of legal property, it will address the history and reasoning behind the property classification. Part I will then describe what this categorization means legally for human companions, including what happens during a tort suit for the injury to or killing of a companion animal and how human companions are compensated.

Part II will explore the development of and the intention behind loss of companionship damages claims in tort. This Part will include an overview of the recovery's origin, as well as the majority view of how it extends (or does not extend) to companion animals.

With the important background information covered in Parts I and II, Part III will discuss the recent evolution of loss of companionship damages claims for companion animals across the United States. First, Part III will focus on specific laws enacted by state legislatures in Tennessee, Illinois, and Connecticut. Second, Part III will discuss common law court decisions covering both the acceptance and rejection of loss of companionship damages as well as the acceptance of recovery for other emotional damages.

Part IV will introduce popular arguments for the expansion of loss of companionship damages to compensate human companions. In support of the minority position are the arguments that awarding loss of companionship damages promotes the goals of tort law, is a natural next step, and is rational because companion animals currently receive different protections and treatment under various laws.

Finally, Part V will discuss two proposed solutions that will allow human companions to recover loss of companionship damages. First, this Part will consider a new special "semi-property" classification for companion animals, including oppositional arguments and responses in rebuttal. Second, it will explore a statutory scheme promoting the expansion of loss of companionship, including oppositional arguments and responses in rebuttal.

1. COMPANION ANIMALS AS PROPERTY UNDER U.S. LAW

   Animals are defined as property because it is convenient--and profitable. This [definition] allows them to be exploited, harmed and used for experimentation and entertainment, all with impunity (.25)

   Whether or not you agree with this statement, animals, including companion animals, are indisputably categorized as property under the law. (26)

   1. The History of Property and the Classification of Animals

      Property law in the United States is tied to the common law. (27) Under the common law, individuals have a "natural" right to their property, a right of absolute possession limited only by a few restrictions. (28) Property, as defined by Black's Law Dictionary, is "[a]ny external thing...