Pet Injury Cases Hold Animals Are Sentient Beings

Three recent cases in California have held that damages for injury to domestic pets are not limited to the market value of the animals. Historically damages for destruction of or injury to domesticated animals have been limited to the value of the animal.  Several recent appellate cases in California have adopted a different rule for domestic pets. The underlying analysis in at least one of these cases may have adverse implications for the zoo and aquarium industry since the case appears to be based in part on the premise that animals should be treated differently from other forms of property because of their “sentient” nature.

In Kimes v. Grossner (2011) 195 CA4th 1556, the plaintiff claimed that his cat “Pumpkin” had been shot with a pellet gun while perched on the fence to his property. The plaintiff incurred $6000.00 in veterinary bills. In addition, because the cat was partially paralyzed the Plaintiff incurred an additional $30,000.00 in bills for caring for the cat.  The Plaintiff sued for his veterinary bills and the cost of caring for the cat, as well as punitive damages.  The Defendant tried to have the case dismissed arguing that the cat was simply a stray cat which had been adopted by the Plaintiff and had no monetary value. The Court held that the economic value of the animal was not the appropriate measure damages in this instance, and the cost of veterinary bills and care was a reasonable basis for calculating damages. In addition, because of the alleged intentionally wrongful conduct of the defendant, the Court allowed punitive damages.

The second recent California case (Martinez v Robledo (2012) 210 Cal app 4th 384) actually involved two consolidated cases with somewhat different issues. The first case was essentially veterinary malpractice. A veterinarian conducted surgery on a golden retriever, but nicked the animal’s intestine and left gauze inside the animal. When the animal failed to heal, the Plaintiff took the animal to an animal emergency center where plaintiff incurred nearly $40,000.00 in additional medical costs for additional surgery to save the dog’s life.  The veterinarian attempted to defend on the grounds that the additional medical costs that the Plaintiff had incurred exceeded the value of the animal (estimated by the parties at $1000.00). 

The second consolidated case in Martinez involved a German shepherd which had escaped from its owner's property. The dog entered the property of a neighbor and began barking at the neighbor and the neighbor’s dog. The neighbor shot the German Shepherd (the neighbor claimed he was defending himself from a dangerous dog). The Plaintiff incurred approximately $21,000.00 in veterinary bills and also asserted a claim for punitive damages.  The Court in Martinez held that both Plaintiffs were entitled to pursue their claims for the cost of veterinary bills.

The court's ruling in Kimes can arguably be justified under existing California law. Assuming that the act of shooting the cat was intentional, punitive damages might be available under normal legal doctrines for intentional infliction of emotional distress to the animal's owner. Separately while the veterinary bills and the cost of caring for a paralyzed cat seem excessive, those damages also might be warranted as compensation for intentional misconduct in deliberately shooting a pet. 

The court's analysis in Martinez, however, goes far beyond that necessary to reach its holding.  The court stated that the establishment of animal protection laws in California shows that “the Legislature has recognized … that animals are special, sentient beings…”   Separately the Court stated that “given the Legislature’s historical solicitude for the proper care and treatment of animals, and the array of criminal penalties for the mistreatment of animals, as well as the reality that animals are living creatures, the usual standard of recovery for damaged personal property - market value -is inadequate when applied to injured pets”.  It is this additional language regarding the special nature and in particular the sentient nature of animals which is potentially of concern to the zoo and aquarium industry.

These cases change existing California law in two respects. First, both cases appear to establish a new standard of damages for injury to domestic pets (the cost of veterinary care). Second, Martinez appears to establish a new negligence standard for liability for veterinary care, or at least a new and higher measure of damages for negligent veterinary care in the pet industry.   It is unclear if these cases will stand after further scrutiny.  Existing case law in other California appellate districts still limits damages for injury to domestic pets to the fair market of the animals.  It remains to be seen whether the Supreme Court will consider this issue and allow these recent cases to stand in light of their conflict with other pre-existing California law. 

If these cases do remain good law, there are significant potential implications. The creation of a new and higher measure of damages for veterinary negligence in the pet industry may well increase the cost of insurance to veterinarians and by extension the cost of caring for pets.  In addition these cases could result in higher homeowners insurance premiums in California.  If homeowners are liable for potentially tens of thousands of dollars in damages for accidentally running over the neighbor’s dog, homeowner’s insurance premiums in California will probably increase to cover the additional liability.

These cases raise troubling public policy issues generally.  Many pet owners will go to extraordinary lengths to care for ill or ailing pets. It is not unusual for pet owner to spend tens and sometimes hundreds of thousands of dollars on cancer care, surgery and other medical treatments which only extend a dog or cat's life by months or at most several years. These are personal choices, and for those pet owners who can afford to spend their money in this fashion it is certainly their right to do so. However imposing the cost of caring for an injured pet on other persons who may accidentally injure that animal is a different matter. 

The implications these cases have for the zoo and aquarium industry are less straightforward but still troubling. The Court’s analysis in Kimes appears to be based in part on the intentionally wrongful act of deliberately shooting a cat, and can be reconciled with standard principles of damages for intentional misconduct. However, the comments made by the Court in Martinez to justify its ruling and in particular the reliance upon the “special, sentient” nature of animals goes beyond existing case law and appears to create a special (if somewhat vague) status for animals beyond other forms of property.   Since animals are living creatures, they are appropriately protected by various animal welfare and anti-cruelty statutes. However those statutes have not in general been the basis for damages claims, and instead animal abuse is governed by criminal and civil penalties imposed by governmental organizations.   Attempts to grant direct rights of recourse to animals have been rejected by the Courts that have considered these issues.

Giving the right to pet owners to sue for damages for injury to pets based upon their “special sentient” nature is a step in the direction of broader rights for animals. Several recent cases brought by more extreme animal rights groups have attempted to establish direct rights, including constitutional rights, for animals. While these recent California cases do establish claims directly by the animals themselves, they do establish a different standard for treatment of animals which may provide support for later cases by animal rights extremists. Any case which establishes a special standard for the treatment of animals based upon alleged cognitive, sentient or other similar bases should be of concern to the zoo and aquarium industry. 

 The Animal Legal Defense Fund was an amicus in the Martinez case and its brief likely was the basis for some of the more extreme statements contained in the Court’s opinion.  These three cases form a potential building block for new and different claims against zoos and aquariums based upon the special status of animals as “sentient beings”.    Even if claims attempting to expand upon these cases are not successful, the cost of defending against these sorts of cases can be a significant financial burden on the zoo and aquarium industry.

SeaWord Slavery of Whales - Revisited

Possibly the most entertaining case of 2012 was the lawsuit instigated by PETA alleging that SeaWorld’s Orca exhibits constitute slavery under the 13th amendment to the United States Constitution. This action was actually filed in 2011 with a decision issued in February of 2012. This was not the first lawsuit ever filed attempting to obtain constitutional rights for animals. A similar unsuccessful lawsuit was filed in Australia on behalf of a chimpanzee in 2008.

A successful ruling would have had a tremendous impact on the zoo and aquarium industry. If Orcas had been deemed to have constitutional rights, then other animals almost certainly would be entitled to the same protections.  Providing any form of constitutional or other similar legal rights to animals would have opened a Pandora's box with ramifications for agriculture, pets and almost any aspect of today's life (imagine being required to give rats -which are highly intelligent animals- a trial before exterminating them for invading a home).

 It is unlikely that PETA actually believed that its lawsuit against SeaWorld would be successful. This action was filed shortly after a highly publicized incident in which one of the Orcas at SeaWorld killed a trainer. This action was probably filed by PETA in an attempt to continue the adverse publicity which SeaWorld suffered as a result of this unfortunate death. In that regard, this case is an important reminder of the importance of following proper safety protocols and properly maintaining animals in zoos and aquariums in order to avoid giving animal-rights activists the opportunity to generate publicity from bad outcomes.

In its complaint PETA described the social habits of Orcas in the wild and attempted to analogize those to cultural traits. In addition, PETA described SeaWorld’s breeding program for Orcas as further evidence of voluntary servitude and bondage.  The Complaint reads in part like a bodice-ripper novelized description of the treatment of female slaves in the Old South.

In the substantive portion of its Complaint PETA argued that the 13th amendment to the United States Constitution which prohibits slavery should be applied to the Orcas.  In support of that argument, PETA relied upon cases which have held that the 13th amendment prohibition against slavery is not limited to descendents of African slaves. However those cases simply applied the 13th amendment to other oppressed minorities. PETA was attempting to extend the logic which was used to extend anti-slavery concepts from African slaves to Chinese and Mexican immigrants, to apply to animals. PETA also argues that because the 13th amendment does not specifically uses the word “person”, it should not be so limited and should be applied to a non-person or animal.

The District Court had very little difficulty in rejecting PETA's argument. Both historic and contemporary sources analyzed by the Court made clear that the terms “slavery” and “involuntary servitude” as used in the 13^th Amendment apply only to persons. Furthermore prior U.S. Supreme Court cases (including some of the same cases PETA attempted to rely on) have made clear that the term involuntary servitude can only be applied to human beings.   The Court also relied upon the language of the Emancipation Proclamation to support its conclusion that the terms “slavery” and “involuntary servitude” only apply to persons.  The Emancipation Proclamation states in relevant part that it applies to “all persons held as slaves within the State or designated part of the State”.  While noting that animals may be entitled to protection under certain animal-rights statutes and that the goals of PETA to protect Orcas might be laudable, the Court made clear that the protections available to or for the benefit of animals are limited to those arising under specific animal protection statutes, and that non-persons are not entitled to constitutional protection.

In an interesting twist, a separate animal-rights activist group known as “The Center for the Expansion of Fundamental Rights, Inc.” (“CEFR”) attempted to intervene in the case as an amicus curiae on behalf of the Orcas.  Apparently, the position argued by CEFR was too extreme even for PETA.  PETA opposed CEFR’s motion to intervene and asked the Court not to consider its arguments. 

 

In effect CEFR argued that because the whales in question had been captured in Iceland (and one in British Columbia) and had been forcibly removed from their country of “residence”, that their rights should be decided under the laws of their countries of residence.  In other words, CEFR argued that the laws of Iceland and British Columbia should be applied in deciding the rights of these whales. While the Court granted CEFR’s request to intervene as amicus curiae and allowed it to file its brief, it otherwise ignored CEFT.   The Court did not allow CEFR to appear at oral argument and did not respond to the arguments set forth in CEFR's brief in its ruling.