Rabideau turned in on itself

We've mentioned before the "Greatest Hits of Animal Law," cases where judges have used the power accorded them by our common law system to expand liability for torts involving animals, usually companion animals. Read any article on emotional damages or the legal implications of the human-animal bond (e.g., this recent article on standing by student scholar Lauren Magnotti) and you'll come across  Corso v. Crawford Dog & Cat Hospital and Burgess v. Taylor, for instance. The import of these cases is as much the relief granted human companions of animals as it is the frank way in which the courts in these cases deal with, and often criticize, the property status of animals. Such language, perhaps surprisingly, also appears in cases which go against human and animal companions.

One such case is Rabideau v. City of Racine, in which the Wisconsin Supreme Court observed: "A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog." Yes! But no--the court then went on to rule against the plaintiff, who had watched her dog get shot and killed and was claiming negligent infliction of emotional distress as a bystander. The court's earlier cases had limited bystander recovery to a fairly small group of close family members, and Rabideau did not depart from this. We think this result a shame, especially given that the court was only limited by broad "public policy" concerns. It arguably would meet such concerns by expanding bystander liability only to, say, any animal which lives with a human and is not used for commercial ends.

In the recent case of Camp v. Anderson, 2005 AP 2407 (Wisc. Ct. App. 7/25/06) the defendant argued that Rabideau precluded relief, and, as in that case, the court came to an unsatisfying decision. In Camp, however, the court did not acknowledge the human-animal bond and then screw the human companions; it did the opposite. This is one of those tort cases where the tortfeasor and the victim are both kids, with the parents suing. Here are the facts:

On July 17, 2000, thirteen-year-old Anthony and four-year-old Steven were playing in the Camps’ yard with Steven’s dog. An eyewitness who had a view of the Camps’ yard stated he saw a “white thing flying through the air and landing in some tall grass.”  The “white thing” was Steven’s dog.  The eyewitness saw Anthony pull some tall reeds or cattails out of the ground, shove them at the dog, and chase Steven with the cattails with what appeared to be feces on the end.  The eyewitness later saw Anthony jump and land with both feet on the dog.  The dog was severely injured and was later euthanized.

The court straightforwardly applies Rabideau, holding that there can be no recovery for a bystander who sees an animal harmed under an NIED theory. But then it goes on to allow a claim based on the (non-bystander) harm caused when Anthony chased Steven with a cattail with feces on it. We know this calls for more extensive analysis but our first thought was: C'mon! If the chasing wasn't preceded and followed by acts of violence against the family pet, it seems very unlikely that any court would recognize this as any legally cognizable harm. Instead the death of this unnamed deceased dog (a contrast with the Rabideau, where the animal is named and initially humanized) is something to be recited but ignored. This is the flip-side of the talk-nice/act-mean approach of Rabideau and seems almost worse, from our perspective. We'll leave the topic of the power of language to oppress to other smarter commentators, but suffice it to say we can't wait to see the next addition to those rare "Greatest Hits," which both speak and act nicely to animals.