Advocates say the term promotes animal welfare, but critics worry it opens the door for lawsuits
Posted Feb. 15, 2003
San Francisco recently joined a growing number of cities that think of their animal-owning population also as pet guardians. The first city to change its ordinance was Boulder, Colo., followed by Berkeley and West Hollywood in California; Sherwood, Ariz.; Amherst, Mass.; Menomonee Falls, Wis.; and the state of Rhode Island.
Animals are defined as property, according to state and municipal laws. Advocates of the pet guardian term say the designation is used interchangeably with "pet owner" but promotes greater responsibility and respect for pets without granting them additional protections or changing their legal status.
"Animals need to be regarded as more than the material property of an owner," Dr. Elliot Katz, president of In Defense of Animals, said in January after the San Francisco Board of Supervisors voted 8-3 in favor of the measure.
As part of the "They Are Not Our Property, We Are Not Their Owners" campaign, IDA, a California-based animal rights organization, tried unsuccessfully in 1999 to get the city ordinance changed to recognize pet owners as guardians also. Their effort was widely publicized, however, and led to similar initiatives across the country (see JAVMA, April 15, 2001, page 1240).
"The term 'guardian' denotes a positive relationship and mutually beneficial bond between two living beings, where constant care, attention, and affection are necessary for a thriving relationship," Dr. Katz explained. "It instills respect for and appreciation of our companion animals.
"One reason city councils and Rhode Island's legislature have opted for the pet guardian language is that they think it codifies what many pet owners already believe to be true about their relationship with their furry friends. What's more, they consider the measure is considered a nonbinding means of educating the public and promoting animal welfare.
Kelley Filson, director of humane education for the San Francisco SPCA, says the guardian language will help children understand that animals are more than property and deserve kindness, compassion, and respect. "Use of the term 'guardian' keeps us from sending mixed messages to our children," Filson said.
But city councils and state legislatures aren't rushing to adopt the new language. It took more than three years for San Francisco to make the change. In Los Angeles, animal services officials voted against adopting the term in city documents, stating it was confusing and could lead to frivolous lawsuits. Critics of the term note that "guardian" is not clearly defined.
Dr. Duane Flemming, a lawyer and owner of a veterinary ophthalmology practice in Pleasant Hill, Calif., believes that by changing the legal terminology, animal rights groups such as IDA are laying the groundwork for an eventual legal challenge to the status of pets as property.
"There is an underlying goal here, and that is to attain standing at court," Dr. Flemming explained, while noting that animal rights groups have so far been unsuccessful in their attempts to sue for the interest of an animal.
"You have to do that outside the property laws," Dr. Flemming continued. "So if you can get the language changed from 'owner' to 'guardian,' then you've got a greater chance at getting one of these cases before a court and (arguing) that it's the interests of the animal that need to be protected, not the interest of the owner."
There are implications for the practice of veterinary medicine, too. Tinkering with the legal status of pets might make veterinarians vulnerable to malpractice suits brought by aggrieved owners and lawyers all too eager to cash in on an overemphasis on the human-animal bond.
Civil and criminal laws pertaining to animals are regularly revised to reflect the importance of companion animals in society. Indeed, surveys show that pets are often thought of as family members and children. Some courts are awarding damages above and beyond an animal's market value for emotional distress resulting from negligence leading to injury or death of a pet.
Relatedly, at least two states—Tennessee and Maryland—have capped damages awarded for the loss of a pet. But a law pending in Michigan proposes a $250,000 limit, the highest such cap and no small sum for the average practitioner.
Dr. Richard Schumacher, executive director of the California VMA, worries about the unintended costs to pet owners and, ultimately, the animals themselves. Faced with increased litigation and bigger awards, malpractice premiums will go up, resulting in more expensive veterinary care that pet owners might not be able to afford.
"To totally remove pets as property," Dr. Schumacher said, "seems to us that it's to the detriment of the pet owner."