Hounded, Cowed, & Badgered

Catchup: Court rebukes USDA on horse slaughter, NM bans cockfighting

Apologies for the old news.

The recall of cat and dog food produced by Menu Foods has generated a lot of media interest in valuation of animals. An article in the Chicago Tribune by Mary Ann Fergus does a good job of summarizing the legal landscape, namely that, because animals are legally property, individuals who keep animals as companions can generally only recover the market value of a deceased animal. Although the coverage has included some quotes from veterinarians who support the status quo (who likes to pay?), most articles appear slanted towards the view that companion animals should be valued as the family members they often are. Or, as is commonly asserted by experts, the loss of a loved animal should not be treated like the destruction of a chair or sofa. Whether the outrage over the death of these animals will lead to legislation to allow for the recovery of loss of companionship or emotional damages remains to be seen.

Other recall-related posts: a rundown of causes of action (and another) against Menu Foods by the excellent, relatively new AnimalBlawg, a 50 state guide to companion animal valuation, and one prof expressing skepticism about class actions in this case and another not forecasting weak prospects for regulatory reform.

Animal Person laments that a bill to ban dog racing in New Hampshire has failed and ably takes apart the excuses given by legislators (one of whom she corresponds with) for allowing this practice to continue.

Two out of three plants that slaughtered horses for human consumption were put out of business by a Texas court's decision in January. (See item #4 in the January roundup) The future of the remaining plant, in DeKalb, Illinois, looks grim after a federal court vacated a USDA rule allowing inspectors to be funded by the slaughterhouses themselves. Humane Soc'y of the U.S. v. Johanns, No. 06-625 (D.D.C. 3/28/07). (Hat tip: An Animal-Friendly Life; more background.) The court's holding, that the USDA violated NEPA when it issued the rule, leaves open the possibility that it could issue another rule.

With SB 10, New Mexico has amended its dog fighting statute to ban cockfighting. (Hat tip: AAFL ... Happy Birthday!) Only Louisiana allows cockfighting now, but that may change.

The Animal Fighting Prohibition Enforcement Act, which would heighten penalties for animal fighting and ban blades and hooks used in cockfighting, passed the House. The N.R.A. convinced lawmakers to puts this ban in the animal welfare part of the U.S. Code, rather than the criminal one, though the penalties section still would appear alongside the law targeting animal advocates. Meanwhile, the legislation is being blocked in the Senate; the reason given: opposition to "redundant laws". (Update 4/12/07: Add another to the books, it passed the Senate.)

In da courts, in brief

There is mostly bad news for the citizens of Prairie Grove, Arkansas who have sued corporations running poultry factory farms and feed producers, alleging that chicken litter from nearby farms is responsible for the high cancer rate in the area. The claims against the Big Poultry defendants in the case were dismissed at summary judgment. The plaintiffs did win two pretrial motions against the remaining defendants, which manufacture the feed that allegedly is responsible for the high level of arsenic in the area soil.

In Pennsylvania, a groundbreaking animal cruelty case against a 170,000-hen factory farm is ... up in the air. After testimony by a "poultry science" expert, the government and the defendant have been encouraged to settle. The defendants' mouthpiece, as quoted here, is correct that state cruelty law expressly excludes otherwise cruel acts "undertaken in normal agricultural operation." Although the government expert testified that the conditions--impaled, dirty chickens, packed so tightly they can't move--are way below the industry standard, one wonders how far this scientific ideal is from the reality of how the average (large) chicken farm is run. See, e.g., Wegmans Cruelty.

News off the farm: Dog breeders in Albuquerque, chafing from the regulation of the city's great new ordinance, are suing. A federal court has stopped the U.S. Fish & Wildlife Service's plans to kill "problem" gray wolves in Wisconsin, holding "the recovery of the gray wolf is not supported by killing 43 gray wolves."

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.

In da courts, in brief

In a cruelty case involving the killing of an opposum with a BB gun, a Florida court notes the "blurred line" between hunting and animal cruelty and suggests a legislative "fix" which would add a sadistic mindset requirement to the anticruelty statute. Bartlett v. State [pdf], No. 4D05-2232 (Fla. Ct. App. May 24, 2006).

A Washington court recently allowed damages for emotional distress arising out of the malicious injury of a companion animal. Womack v. Von Rardon,  24221-8-III (Wash. Ct. App. May 25, 2006). As the AP reports, plaintiff's attorney Adam Karp sees this as step towards the recovery of such damages for negligent injury as well. (At HC&B, Karp is a local hero.)

As another AP story notes, a federal district court recently invalidated the National Marine Fisheries Service's issuance of permits to scientists seeking to study Steller sea lions. It held that the court should have prepared an environmental impact statement, given the likelihood that such research would impact sea lion populations. HSUS v. Dep't of Commerce [pdf], No. 05-1392 (D.D.C. May 26, 2006.) Plaintiff HSUS has more info on the invasive techniques proposed by scientists in this case.

Dangit: loss of companionship claim fails in Oregon

As noted in this background post, a family who alleges their dog was intentionally run over by a neighbor was allowed to sue under for the heretofore unrecognized tort of loss of companionship. Today, however, the court overturned the ruling of a previous judge and rejected the claim. The report in the Oregonian is spare on the legal details, but says, of the trial judge:

[S]he said she didn't believe loss of animal companionship was "a viable theory under Oregon law." It's up to other courts or the state Legislature to establish that concept, she said.

There is something unsatisfying about this rationale for rejecting the claim. Accepted ideas about institutional competence support a court being wary of recognizing a new tort (or an extension of a preexisting one or an expansion of damages) because of the belief that such a drastic step is best left to elected officials. One of the institutional advantages of the common law, however, is its flexibility. With again the caveat that we are not legal historians, and are barely lawyers at that, our Googling has revealed that one arguably analogous tort--the tort of consortium--has undergone significant judicial modification, from applying only to husbands for loss of sex, to applying to both spouses, to applying for loss of emotional support, to applying to children for emotional support. Legislative action in this area, however, could limit this flexibility.

The more frustrating rationale is that "other courts" should handle this issue. If a higher court had decided the issue, the trial court would certainly be bound by it. This does not seem to be the case. (We found one case, Lockett v. Hill, where the denial of a damages for loss companionship at the trial level was not appealed.) So why not consider the issue on its merits? A trial judge should be no more or less qualified to consider the extension of the law than an appellate judge. When faced with a innovative legal theory, a trial court should take a good look and come to a decision. Just because the issue will ultimately be decided on appeal, there's no reason a court should abdicate its role. As we've noted, another Oregon trial court has examined the issue (or a similar one) in another case and allowed the claim to go forward. (That case settled.)

From a tactical (if not strictly legal) perspective, the decision is also bad for the plaintiffs. Had the claim gone to the jury, and the jury found for them, it would have given the loss of companionship claim a greater legitimacy on appeal. This is a setback, but we remain confident "the loser now will be later to win." (Happy Birthday, Bob!)

Update (6/4/06): The jury returned a verdict awarding the Greenups $56,400, of which $50K was punitives. While this verdict could not include the sort of novel relief discussed above, the award of a nice amount of punitive damages seems to have been a proxy for the value of the dog in this case.

Loss of companionship trial in Oregon

Steve Mays has a great article in today's Oregonian on a potentially groundbreaking case going to trial this week in Clackamas County. The defendant Raymond Weaver allegedly ran over the Greenup family's companion dog several times, killing him.  Weaver has already been convicted of first degree animal abuse in criminal court. What is interesting about the civil trial is that the plaintiffs may recover damages for loss of their dog's companionship.

There has been much recent legal scholarship addressing the question of how humans should be compensated when an animal they keep as a companion is killed or injured. A central idea is that animals should be valued in the legal system on a different basis than their fair market value. A few courts have considered the emotional bond between a wronged animal and its human companion in assessing damages arising from a tort. In Brousseau v. Rosenthal (one of the "Greatest Hits of Animal Law") a New York court considered the plaintiff's bond with a puppy who died as the result of plaintiff's negligence.

What the court has allowed in this case, however, is a separate tort for loss of companionship. According to Mays's article, the elements of the tort require the plaintiff Greenups to prove "Weaver acted intentionally, that he intended to destroy the relationship between the Greenups and Grizz [their companion dog] and that the relationship had a value." The Greenups's attorney, Geordie Duckler, was successful in 2001 in getting an Oregon court to recognize the tort in a case involving a plaintiff's dog who was killed with an arrow. It was the first court ever to do so. That case settled out of court but this one appears to be going to trial. Here's hoping Duckler makes history again.

For animal law fans, the Mays article is also worth reading for the impressive array of animal experts he contacted. This provides a rare opportunity for HC&B to act like A3G: All you fellows in the audience, shout out to the Practioners (Duckler! Breyer!). Ladies, let's here it for the Scholars (Favre! Wise! Waisman!). Now, everyone, for the animals! Thank you, Oregon!

Kansas court holds animal has value beyond market value

In a case of first impression in Kansas, the state's intermediate appellate court held that the proper measure of damages for an injured companion animal includes veterinary bills.  Burgess v. Shampooch Pet Industries, No 93,698 (Kan. Ct. App. Apr. 7 2006).The facts are those of a typical companion animal tort case: the plaintiff brought her dog in to be groomed and the dog was returned injured. In this case, the dog only recovered after over $1,300 in veterinary services. Although the holding only affirms the lower court's awarding of vet bills, the court's language suggests that it is embracing a view which could allow for damages based on emotional or sentimental value. To wit:

• Regarding the measuring an animal's worth as the value to the owner, "This approach is contemplated by the language in Thatcher which allows consideration of 'any special value to the owner.'"
• "[W]hen an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment." (emphasis added).
  
• "Murphy's real value to Burgess as a household pet is noneconomic and, as a result, is difficult if not impossible to appraise in the purely economic terms of market value ... "it is impossible to reduce to monetary terms the bond between man and dog." (citing Zager v. Dimilia, 138 Misc. 2d 448, 524 N.Y.S.2d 968 (1988)).

The court did not need to reject the traditional fair market value measure of damages to allow the recovery of veterinary bills. As Elaine Byszewski has noted in the Animal Law journal (pdf), the fair market value approach does allow for the recovery of consequential damages, such as vet bills. By doing so, however, the court had made a key doctrinal step away from valuing animals solely as property.

Seattle Times profiles Adam Karp

Susan Gilmore of the Seattle Times has a nice profile of animal law practitioner Adam Karp (hat tip: AnimalLaw listserv). The article hits on a number of issues related to companion animal law practice, including how difficult it is for potential clients to find attorneys willing to take their cases, and the motivations of those clients in seeking justice. Karp calls $45K+ damages awarded in one case where a dog mauled a cat a "symbolic victory." Although there is a tendency in the media, and not just the conservative parts of it, to question the motives of plaintiffs with novel legal theories, many (probably most) people whose companion animals have been injured or killed just want to "send a message" to the tortfeasor or for the court to recognize the wrong. They are not in it for the dough because, generally, there is none to be had. We wonder if this will change as animal law goes more mainstream.

The article highlights the recently decided  Mansour v. King County (Wash. Ct. App. Jan. 23, 2006), which concerned the due process rights of a man who was ordered by local animal control to remove his companion dog from the jurisdiction or give it up to be euthanized. In order to challenge a government action under the due process clauses of the Fifth or Fourteenth Amendments, you must prove you have an interest at stake, either in life, liberty, or property. Mansour argued that he had both a property interest and liberty interest in the dog, but the court found the property interest sufficient and did not reach the more interesting question of whether a liberty interest was at stake (perhaps akin to the liberty interest in family arrangements, see Moore v. East Cleveland.) In a discussion of what standard a reviewing court should use for animal control decisions, though, it treats the relationship between Mansour and the dog, named Maxine, somewhat confusingly:

A determination of removal does not sever the relationship between dog and owner; as long as Mansour moves out of King County, his relationship with Maxine can continue uninterrupted.  While this is certainly a burden on Mansour, it leaves it up to him to determine whether the relationship can continue.  Even a dependency proceeding, where a parent may lose custody of a child, requires proof only by a preponderance of the evidence. The government's decision to remove a child, even if temporary, cannot warrant less protection than the government's order to remove a dog, no matter how beloved, to another county.  And although we have recognized the emotional importance of pets to their families, legally they remain in many jurisdictions, including Washington, property.

Property, yes (in all jurisdictions), but why analogize to a child custody hearing when there a world of other hearings in the annals of administrative law?  We suspect this analogy was following the lead of counsel Karp.

Finally, Gilmore's piece notes rather prominently that Karp is a vegan. Kudos to Karp for being out about it. Given how conservative law culture is, there is a tendency among many lawyers, pony-tailed Legal Aid and PDs aside, to dress and act as if the judge is from 1955 (or 1855). Although half of HB&C has not been able to put aside his wool suit before heading into court or job interviews, he feels inspired to follow Karp's lead.