Dogs are commonly referred to as “man’s best friend,” the companion animals that for centuries have provided owners with unconditional love, dedication and protection. In the United States today, there are approximately seventy-eight million owned dogs and thirty-nine percent of U.S. households own at least one dog (forty-five million households). Dogs are generally regarded not just as companions, but as family members and best friends. Research has shown that dogs experience emotions such as happiness and sadness like their human counterparts. In fact, it is not unusual for some people to choose to care for a dog as an alternative to having children. In addition to companionship, studies have demonstrated that humans can derive health benefits from their relationship with pets. However, despite a dog’s ability to experience emotion and provide pleasure and health benefits to their owners, New York State common law continues to refer to dogs as “personal property,” no different legally from the recliner in your living room or the lawn mower in your garage, and as a result improvements in animal treatment rights are challenging to achieve.
A strong argument can be made that pets which are sold for profit, and presently defined in the law as “property” and/or “goods,” are rather to be considered a “living being,” and not an inanimate object. Modifying the legal definition will allow for more effective judicial cognizance of animal rights which could include a pet owner’s ability to recover damages for past and future pain and suffering, and loss of enjoyment of life when a pet is inhumanely and unlawfully treated, injured, or killed.
New York State already has numerous civil and criminal laws protecting pets, or as better stated “companion animals” from harm and abuse, and even permits trusts and dispositions in a will for the benefit of a family pet. These laws provide penalties for animal cruelty, neglect, and abandonment. However, because there is no current distinction between property and living human beings with regard to pets, more essential tort protections are not available. The following sections discuss relevant statutes and NY common law making the case for defining and categorizing dogs or companion pets as “living beings” as opposed to “personal property.”
II. NEW YORK STATE LEGISLATION FOR THE PROTECTION AND HUMANE TREATMENT OF PETS
New York State common law currently defines pets as “property;” however, this definition is illogical since state law also provides for civil remedies and criminal punishment solely protecting animals and not property. There are several sources of New York State law that collectively strengthens the case for defining pets as “living beings.” Some of these include the New York State Lemon Law, Agriculture and Markets Law, General Business Law, General Municipal Law, General Obligations Law, and Public Health Law.
The State of New York’s Department of Agriculture and Markets imposes, enforces and collects monetary fines as a civil penalty against Pet Dealers who do not maintain proper standards of care for pets. The New York State Pet Lemon Law is “designed to safeguard the public and to ensure the humane treatment of dogs and cats by requiring pet dealers to guarantee the good health of any such animal sold by a pet dealer to a consumer.” New York State Attorney General Eric Schneiderman’s Pet Lemon Laws brochure affirmatively states “[p]ets are truly members of the American family. It is estimated that approximately 60% of households have at least one pet.” Schneiderman also states, “[p]ets offer unconditional love and their companionship can provide important physical and emotional benefits to us.” As a result of the Pet Lemon Law, consumers who purchase an unfit dog or cat may be entitled to a refund, reimbursement for veterinary expenses or a replacement animal. The Pet Lemon Law pitfall, however, is that the consumer must obtain a veterinarian’s certification that the animal is unfit a mere 14 days from the date of purchase or of receipt of the written notice of the owners’ rights under the law, whichever is later. Alone, the Pet Lemon Law is insufficient to protect consumers from congenital defects that can go undetected and arise months or even years after the purchase of a new pet. Another potential pitfall is that pets, including dogs and cats, are considered “goods” under the New York Uniform Commercial Code, therefore providing a market value price tag limitation on each pet sold to consumers.
There are numerous New York State Agriculture and Markets Laws that demonstrate that pets, notably dogs, should be defined as “living beings” and not “personal property.” Section 350 of the Agriculture and Markets Laws actually defines certain pets as a “companion animal,” i.e., any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal . . . “pet” or “companion animal” shall not include a “farm animal”. . . The statute demonstrates that domesticated animals, such as dogs, are “companion animals,” as distinguished from farm animals or wild animals. Further, the statute establishes that a companion animal is a friend, partner, or mate, deserving of greater rights and protection and the title, “companion.” Section 401 of New York’s Agriculture and Markets Law provides for the minimum standards of animal care that pet dealers must comply with. The statute specifically addresses housing, sanitation, handling, veterinary care, and humane euthanasia requirements which are many of the basic requirements necessary for any “living being.” By contrast, items of “personal property” do not require housing, and provisions for sanitation, handling and medical care. For violations of §§ 401-406, a pet dealer may be subject to “denial, revocation, suspension, or refusal of renewal of his or her license,” and “violation of any provision . . . is a civil offense.” Finally, § 410 of New York’s Agriculture and Markets Law (“Establishment of Animal Response Teams”) provides that “[t]he commissioner is hereby authorized to establish state and county animal response teams to support the prevention of, preparedness for, response to, and recovery from emergencies and disasters affecting animals in New York State.” Although the statute does not specify that “companion animals” are to be rescued, a reliable assumption can be made that the government affords animals greater protection and security than “personal property” such as furniture or a personal computer.
As discussed above, animals and pets have certain legal rights and protections, and are also entitled to benefits from willing owners to ensure the animal’s well-being. The New York State Estates, Powers and Trusts Law § 7-8.1 (“Honorary Trusts for Pets”) provides:
A trust for the care of a designated domestic or pet animal is valid. The intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to it by an individual, or by a trustee. Such trust shall terminate when the living animal beneficiary or beneficiaries of such trust are no longer alive.
The significance of §7-8.1 cannot be understated. The statute establishes that a domestic or pet animal is eligible as a trust beneficiary. In contrast, an inanimate object, or items of personal property, such as one’s personal automobile, cellular phone, or flat screen television can never be the beneficiary of a trust, demonstrating that companion animals should be identified as “living beings” that have certain rights and defining them as “personal property” is contrary to their statutory rights and protections, and their treatment under the law.
III. NEW YORK STATE CASE LAW DEMONSTRATES THE NEED FOR STRONGER LEGISLATION FOR THE PROTECTION AND HUMANE TREATMENT OF PETS
“Pets are treated under New York law as personal property, and the loss of a dog by reason of negligence will not support claims by the animal’s owners to recover for their resulting emotional injury.” This statement by the New York Supreme Court continues to reverberate in many related pet injury lawsuits. In countless cases, courts have held that a pet owner may recover the market value of a deceased pet; however, damages may not be recovered for an owner’s emotional distress and loss of companionship, or the pain and suffering of pets. For instance, where an airline passenger sued American Airlines for damages arising from the death of his dog after it suffered heat stroke in the cargo hold of an airplane, the court held that “under New York law, there is no independent cause of action for loss of companionship of a pet,” and no cause of action is recognized for the pain and suffering of animals.” Additionally, in Fowler v. Ticonderoga, the New York Supreme Court held that plaintiff’s claim for damages for psychic drama resulting from the shooting of his dog by a Town Dog Control Officer unrecoverable. The Court explained that “although plaintiff may have observed the killing of his dog, he was not in the zone of danger, was not himself physically injured, and the alleged tort ‘involved personal property, not a family member’.” However, the New York Agriculture and Markets Law § 350 defines a domesticated pet, such as a dog, as a “companion animal.” The plain language of the statute clearly identifies dogs, as “companions”, yet courts nonetheless treat pets as “goods,” “personal property” or “inanimate objects” and have not expanded legal interpretations to make any further and obvious distinctions.
Significantly, not all courts uniformly believe that a pet is “personal property.” Some courts have held that “a pet is not an inanimate thing that just receives affection, it also returns it.” In a 1979 Civil Court case in New York, the plaintiff Kay Corso, owner of a pet poodle, sought damages for mental anguish against a funeral arranger for pets when she found the remains of a cat in the casket that was supposed to be holding the remains of her deceased pet poodle. One legal issue faced by the court was whether the plaintiff was entitled to damages beyond the market value of the dog. In its decision the court first held that a pet “is not simply an item of personal property, but occupies a special place somewhere in between a person and a piece of personal property.” Additionally, the court believed that “in ruling that a pet such as a dog is not just a thing . . . the plaintiff is entitled to damages beyond the market value of the dog . . . A pet is ‘not an inanimate thing’ that just receives affection, it also returns it.” One year later, in a 1980 Civil Court tort lawsuit in New York, plaintiff’s eight-year-old trained watchdog died while boarding in the defendants kennel. Plaintiff received the pet as a gift and therefore it had no ascertainable market value. The court held that “to this retired woman, who lived alone, this pet was her sole and constant companion,” and plaintiff “is not limited to a nominal award merely because the mixed breed dog was a gift and had no ascertainable market value, but instead entitled to damages for loss of companionship and protection since such factors are elements of the dog’s actual value to her.” The court in these cases recognized that regardless of “market value,” a pet is a living being that offers invaluable companionship, protection, love and support, the loss of which causes an owner grief and emotional distress.
In 2009, the Medlen family’s dog Avery escaped from their backyard in Texas and was picked up by animal control. When the Medlens went to pick up Avery from the shelter, they were notified that Avery was accidentally euthanized. The sole issue in the case was whether a party can recover intrinsic or sentimental damages for the loss of a dog. The Texas Court of Appeals overruled a 120-year-old case, and held that “an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the sentimental value of a dog is considered damages.” In her opinion, Justice Lee Gabriel said “[d]ogs are unconditionally devoted to their owners. Today, we interpret timeworn Supreme Court law in light of subsequent Supreme Court law to acknowledge that the special value of ‘man’s best friend’ should be protected,” and “[b]ecause an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens’ action against Strickland.”
During June of 2011, Jan Elizabeth Van Dusen successfully petitioned the Internal Revenue Service for the redetermination of an income tax deficiency arising from the disallowance of charitable-contribution deduction for her unreimbursed volunteer expenses while caring for about seventy foster cats in her private residence. The Tax Court had to determine whether Van Dusen had provided services to a particular charitable organization for which she may deduct expenses. The Tax Court ultimately held that Van Dusen may take charitable deductions for the expenses she incurred, while looking after the cats in her home. According to the Wall Street Journal, “the decision . . . paves the way for volunteers of animal-rescue groups like the ASPCA and Humane Society of the U.S. to deduct unreimbursed expenses that further the groups’ missions, such as fostering stray animals. It also clarifies rules for anybody deducting unreimbursed charitable expenses of $250 or more, especially if they involve use of a home.” The outcome of Van Dusen’s case is enormously significant for organizations dedicated to the protection of animals, prospective and current pet foster parents, as well as for establishing the concept that pets are actual living beings.
The legal rights of animals, pets and pet owners in the United States are a work in progress. Improved legislation is necessary both on the federal and local levels. As this memorandum demonstrates, a pressing issue requiring legislative reform concerns pets sold for profit. Presently defined as “property” and/or “goods,” legislation is needed to categorize pets or companion animals as “living beings,” and not inanimate objects. Modifying the definition in the law will allow for expanded rights including the recovery of damages for past and future pain and suffering, and loss of enjoyment of life when a pet is inhumanely and unlawfully treated, injured, or killed. New York State statutes afford an abundance of protections for animals including civil and criminal penalties for violators, however courts have primarily been reluctant to recognize the pain and suffering of a pet and consequently, its owner. Hence, clarifying the legal definition and categorization of animals is necessary.