Legal and Practical Considerations of Changes in the Legal Status of Animals. Adrian Hochstadt American Veterinary Medical Association.

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1 Legal and Practical Considerations of Changes in the Legal Status of Animals Adrian Hochstadt American Veterinary Medical Association May 4, 2012 Animal Law Property law (marital dissolution) Torts (liability, bailment) Commercial use of animals (food production, research) Criminal law (animal cruelty) Contracts (landlord-tenant, condominium law) Wills and trusts (pet trusts) 1

2 Animal Law Student chapters of Animal Legal Defense Fund explode from 12 to 162 law schools in 10 years Law schools offering animal law courses jumped from 9 to 120 since Georgetown offers animal law fellowship (HSUS litigation dept., funded in part by $1M endowment from Bob Barker) Fall Lewis & Clark Law School will be first to offer advanced degree in animal law ABA TIPS, 24 state bar associations, 13 local bar associations Current Law Pets are considered property in all 50 states, but unlike unlike inanimate objects, pet owners do not enjoy unfettered use of their property. Laws to protect animals from abuse, neglect, cruelty do not extend to inanimate property = 2

3 The Human-Animal Bond The veterinary profession and others who care for animals have long acknowledged the importance of the humananimal bond and emotional attachments between pets and their owners. However, the AVMA believes the unintended consequences of any extension of potentially available damages beyond economic damages outweigh any potential benefits. Guardianship or ownership 19 cities/counties Wherever the word "owner" shall appear in this chapter it shall also mean and may be interchanged with the word "guardian" as defined in R.I. Gen. Laws, Sec (2010) 3

4 Guardianship or ownership No political subdivision of the state nor any local l government, city or county shall enact any ordinance or promulgate or issue any regulation, rule, policy, guideline or proclamation describing the relationship between persons and domestic animals as other than persons may or can own domestic animals. Mo. Rev. Stat (2010). Guardianship or ownership The American Veterinary Medical Association promotes the optimal health and welfare of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners, including "guardian," does not strengthen this relationship and may, in fact, harm it. Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering. (2003) 4

5 What are Non-Economic Damages (NED)? Soft, speculative, difficult to measure Punitive Damages Awarded to punish and deter intentional, reckless or outrageous conduct. Not generally awarded in typical negligence cases, where compensatory damages are awarded to make plaintiff whole. 5

6 Statutes IL, TN Noneconomic damages available in very limited circumstances Pain, and suffering of the animal, and emotional distress suffered by the owner but only for aggravated cruelty or torture or actions taken bad faith. 510 Ill. Comp. Stat. Title 70. Up to $5,000 in NED but only if death or fatal injury occurs on property of the deceased pet's owner/caretaker, or while under the control and supervision of the deceased pet's owner/caretaker. Actions for professional negligence against veterinarians are excluded. Tenn. Code Ann. Sec

7 Statutes NV, MD Compensatory damages beyond fair market value Cap of $7,500 in MD and $5,000 in NV per pet Statutes - CT Intentional killing or injuring a pet only Allows for recovery of expenses of veterinary care, fair monetary value of animal, burial expenses, punitive damages and attorneys fees 7

8 Case Law Courts generally have denied claims for NED in negligence cases, including recent cases such as: Goodby v. Vetpharm, Vermont Supreme Court, May 8, 2009 McMahon v. Craig, California Court of Appeals, July 31, 2009 Kaufman v. Langhofer, Arizona Court of Appeals, December 22, 2009 Case Law improper placement of tube in lungs rather than stomach plaintiffs alleged that Jack Russell Terrier had no market value, recovery should be based on intrinsic value Industrial Commission awarded damages in amount of money spent on veterinary care as well as replacement cost of the animal sentimental bond between a human and his or her pet companion can neither be quantified in monetary terms or compensated for under our current law Shera v. NC State University Veterinary Teaching Hospital, Court of Appeals of North Carolina, February 21,2012 8

9 Case Law euthanasia of a dog misidentified by a shelter employee owner can recover intrinsic or sentimental damages for the loss of the dog contrary to precedent Texas Supreme Court petition for review Medlen v. Strickland, Texas Court of Appeals, Second District, Ft. Worth, November 3, Gallup Poll Do you think a pet owner should be able to sue for pain and suffering damages, or should a pet owner only be entitled to receive actual damages of the loss of their pet? 70% 60% 50% 40% 30% 20% 10% 0% 63% 33% 4% Pain & Suffering Actual Damages No Opinion 9

10 Recent Legislative History In recent years, state legislatures have considered and rejected bills proposing noneconomic damages. Hawaii Massachusetts Missouri New York Rhode Island Washington AVMA Policy The AVMA opposes the potential recovery of non-economic damages in negligence cases 10

11 Recovery of Monetary Damages in Litigation Involving Animals The American Veterinary Medical Association recognizes and supports the long-standing legal classification of animals as the property of their owners. The AVMA recognizes that, in some lawsuits, economic compensation may exceed an animal's fair market value, which is the traditional measure of damages for property, in order for the owner to be made economically whole. Recovery of Monetary Damages in Litigation Involving Animals Any extension of compensatory remedies beyond these economic damages would be inappropriate and ultimately harm animals by reducing the availability of affordable veterinary care services. Therefore, the AVMA opposes any recovery of non-economic damages. The AVMA acknowledges the awarding of punitive damages when warranted in accordance with a state s punitive damage law. 11

12 Economic Value of an Animal In determining the real monetary value of the animal, the AVMA believes the following factors should be considered: Purchase price Special training Age and health of Veterinary the animal expenses related Breeding status to the incident in Pedigree question Economic utility Consequences Elevate the value of animals above humans Erode veterinary-client relationship New burdens on judicial system Raise cost of veterinary care Increase cost of animal ownership 12

13 Elevate the Value of Animals Above Humans In human tort law, NED damages cannot be recovered for the injury to or loss of close human friends, siblings, and nonnuclear family members It is unreasonable to expand tort laws to allow such damages for injury or loss of pets Erode Veterinarian-Client Relationship Loss of trust Trust is the single most important factor in the relationship between pet owner and veterinarian. -John Albers, DVM 13

14 In spite of the mission of malpractice law to improve the quality of care through deterrence - indeed perhaps because of it - the fear of litigation obstructs progress in ensuring patient care. -David Studdert New England Journal of Medicine New Burdens on Judicial System Increased litigation could result in additional burdens on an already strained court system More time spent on litigation Demand for more resources Raise new legal questions that have previously been undecided or unexplored 14

15 Rising Veterinary Costs Defensive medicine Increased liability insurance rates Discourage specialization Litigation burden Result: Increased costs passed on to pet owners, higher cost of care Cost as a Factor for Care 20% of pet owners use cost as a primary determinant when selecting a veterinarian AVMA : U.S. Pet Ownership & Demographics Sourcebook,

16 AP-Petside Poll, April % of owners surveyed were somewhat or very/extremely worried that they would not be able to afford veterinary care AP-Petside Poll, April % 60% 50% 40% 30% 20% 10% 0% $500 $1,000 $2,000 $5,000 Percentage of owners who would be very or extremely likely to go ahead with treatment that would cost ($). 16

17 Threshold for Pet Expenditures Stop treatment point $1,600 $1,400 $1,451 $1,407 $1,200 $1,000 $800 $595 $802 $974 $600 $400 $200 $ DVM Newsmagazine triennial survey Threshold for Pet Expenditures As care becomes less affordable, the rates of abandonment and relinquishment to shelters increase. Higher income clients are less affected Higher-income clients are less affected, but lower-income clients are significantly affected. 17

18 National Commission on Veterinary Economic Issues January 2010 Quick Poll Due to the current economic climate, veterinary clients are: Postponing wellness/preventive care Postponing care for sick pets Treating sick pets, but choosing less expensive treatment options It s More Than Veterinary Care Costs Veterinary care is just one aspect of animal care that would be affected Increased monetary liability for all animal-related services and products Drugs, food and pet supplies, grooming, boarding, insurance 18

19 Going Statutory recognition that animals are unique, living beings Allowing economic damages beyond fair market value Allowing punitive damages for intentional or criminal behavior Going Supporting and strengthening state veterinary medical boards Evaluation of veterinary curricula to ensure quality of training Emphasis on communication skills Legal/ethics continuing education courses and/or requirements 19

20 Contact Us Adrian Hochstadt, JD, Assistant Director, State t Legislative and Regulatory Affairs, , ahochstadt@avma.org Tara Southwell, JD, State Policy Analyst, , tsouthwell@avma.org Kristin Poppalardo, State Policy Analyst, , kpoppalardo@avma.org 20