Depending where on the animal rights spectrum your opinions fall, legislation before the New York State Legislature establishing the right to sue for the wrongful death or injury of a pet is either frightening or evolutionary.
Suing for monetary damages over a deliberate or negligent act that harms a pet isn't new to civil law. Animals are personal property and when that property is damaged or lost, owners can sue. In most states, plaintiffs can hope to recover a pet's market value, although courts in a handful of states accept claims that a pet had special value to an owner.
But a law proposed in New York goes beyond animal jurisprudence known anywhere in the United States. Most notably, in addition to entitling a pet owner to recover damages, the pet itself has the right to be compensated for its pain, suffering, and loss of faculties.
David Favre, a professor of animal law at Michigan State University-Detroit College of Law, explained that in civil suits involving the wrongful injury or death of a pet, it is the pet owner—not the actual harmed party, as it were—who can recover damages.
"The idea that the pet itself could be compensated for the pain and suffering, that is breakthrough," said Favre, also a national officer of the Animal Legal Defense Fund.
The legislation grants only dogs, cats, and domestic animals receiving regular care the right to recover damages. Poultry, cattle, horses, and other "farm animals" are specifically excluded. Introduced in March 2003 in the New York Assembly (AB 6340) and Senate (S 2791), the proposed law was referred to the Judiciary Committee in each house in January.
Nearly identical legislation has lingered in the Massachusetts Senate since January of 2003, but it isn't expected to go anywhere.
The legislation authorizes the courts to appoint guardians to sue on a pet's behalf and sets punitive damages at a minimum of $2,500. Awards go into a trust administered by the guardian to care for the pet for the rest of its life. When the animal dies, the remainder of the trust is to be donated to a nonprofit organization dedicated to protecting pets.
Favre said at least 20 states already make provisions for guardians to be appointed for pets, but only in cases when owners have willed money to a surviving animal. No state allows for guardians to sue on behalf of animals, he added.
A memo included in the New York bill explains that it's meant to provide state courts with legislative guidance "to relinquish the common law's antiquated, scientifically obsolete assumption that animals are just 'things.'"
"This bill is scary, " said Thomas Gosdeck, legislative representative for the New York State VMS, which strongly opposes the proposal. "This is the first real characterization of animals in some ways as being entitled to the same treatment as humans."
If the bill were to become law, Gosdeck foresees a flood of frivolous lawsuits. "If your next-door neighbor doesn't like the way you're trying to housebreak your puppy, presumably, they could go to court and try to get themselves appointed the guardian of your dog and sue you for damages," he said.
Gosdeck also takes issue with awarding plaintiffs damages for pain, suffering, and emotional distress caused by the death or injury of a pet. The state's civil law doesn't even entitle people to such awards in wrongful death cases involving a spouse, he noted.
Equally troubling to Gosdeck is the provision in the bill mandating punitive damages. Gosdeck said this is the first time in his legal career that he's seen such a requirement. State and federal laws are designed to leave such awards to the discretion of a judge or jury to punish particularly heinous conduct, he explained.
Neither Favre nor Gosdeck knew what, if any, person or group convinced state legislators in New York and Massachusetts to sponsor the bills.
Favre sees the proposals as a positive step toward granting animals legal personhood. "What we're doing is creating a hybrid of live property," he said. The legislation is limited to dogs and cats rather than farm animals because political support exists to protect pets, and fewer economic interests are at stake.
Several legislators have criticized aspects of the New York bill, and its fate is uncertain, Gosdeck said. That it got as far as it has in the state legislature has him concerned. "I don't think it's a this-year bill," Gosdeck said, "but I think it's something we're going to continue to see in the years to come."