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Sherry F. Colb

The Vermont Supreme Court Considers "Loss of Companionship" Damages for a Dog's Death


Wednesday, January 20, 2010

The Vermont Supreme Court is currently considering the question whether plaintiffs may recover damages for emotional distress and loss of companionship from a defendant who shot the plaintiffs' dog to death. Some proponents of animal welfare argue that such an award would represent progress for the status of non-human animals, perhaps leading some day to a world in which nonhuman animals have rights. In this column, I will evaluate the strength of this argument.

The Facts

The story of this case began when the plaintiffs, Denis and Sarah Scheele, were visiting relatives, and they allowed their dog, Shadow, to wander into the yard of the defendant, Lewis Dustin. Upon seeing Shadow in his yard, Dustin shot the dog, who died of his resulting wounds on the way to the veterinarian.

Dustin subsequently pleaded guilty to misdemeanor animal cruelty and received a year of probation, 100 hours of community service, and an order to pay $4000 in restitution to the Scheeles.

In their separate civil suit against Dustin, the plaintiffs claim that reimbursement for Shadow's adoption fee, veterinary bill, and the cost of cremation would fail to take adequate account of what the loss of their dog has meant to their lives. On a web site devoted to Shadow's memory, the Scheeles reportedly wrote, "Every day without you running and playing and cuddling with us is more difficult than the day before. The loss of your presence in our every moment is unbelievably painful. Not a moment passes that you are not in our thoughts, our hearts, and our prayers."

Now, the Vermont Supreme Court will have the opportunity to decide whether a claim for emotional distress in these circumstances is legally cognizable.

The Legal Claim

In some ways, the civil damages remedy that the Scheeles are requesting for their suffering as a result of Shadow's death resembles the relief available to parents in Vermont (and elsewhere) when someone kills their child – a damages award that includes the emotional distress and grief that follows from a wrongful death.

One might ask what greater evidence there could be that the law values a nonhuman animal than a requirement that a defendant pay a plaintiff substantial money damages for the loss of the animal's company? Indeed, as some critics of the "loss of companionship" claim have pointed out, grandparents in Vermont are unable to recover emotional distress damages for the loss of their grandchild. Could it be, then, that Vermont law might value dogs more than it does grandchildren?

One might characterize Vermont law in this way, but only if one were to ignore virtually everything about how human beings treat nonhuman animals – including dogs – and focus exclusively on the potential award of damages for the loss of companionship.

That is, imagine that we were opening a time-capsule and knew nothing about the society that existed at the time the capsule was filled, other than the fact that plaintiffs whose family dog was killed were able to collect a large sum of money from the dog's killer to compensate for the loss of companionship. Under these circumstances, we might conclude that the society in question ascribes great value to dogs. But we would have, at best, an incomplete picture of the society in question. And if the society that had provided the contents were our own, that picture would be misleading indeed.

The Reality

In reality, we know a great deal more about this society – our own. We are aware, first, of what happens to a dog who lacks an owner in almost every city in the U.S. (Notably, as I write this, I just now received a grammatical error message from MS Word for using "who" rather than "that" in modifying "a dog.") A homeless dog will be picked up by some version of "animal control" and taken to a "shelter." At the "shelter," the dog will be placed inside a cage and kept there for some period of time, in case an owner comes forward to claim the dog or in case someone from the public decides to adopt him or her.

If no one claims the dog, then the "shelter" employees will, after some designated period of time has passed, take the dog into a "euthanasia room" and inject the dog with a deadly chemical to end his or her life and thus make space in the dog's former cage for the next nonhuman animal to be "sheltered." If we were discussing humans, we would not likely refer to a place where inhabitants find themselves caged and then killed if no one wants them as a "shelter."

To be sure, there are some "no-kill" shelters around (though I must say that the very title "no-kill shelter" brings to mind such seemingly redundant concepts as "no-rape loving relationships" and "no-battering-the-patients hospitals"). But no-kill shelters are in the minority and generate much controversy among institutions supposedly dedicated to the protection of animals (like the ASPCA and the Humane Society). PETA ("People for the Ethical Treatment of Animals") – often but mistakenly referred to as an animal rights organization – reportedly "euthanizes" nearly all of the companion animals it takes in.

We are aware, as well, that despite this country's professed affection for dogs and cats, large numbers of people abandon or otherwise "give away" their dogs and cats after a few years, frequently leaving them on the road to the euthanasia room. Consider the fact that Petfinder, a web site dedicated to providing information about adoptable nonhuman animals (who are searchable on the site by breed, size, age, location, etc.) currently has almost 300,000 animals listed, in need of a home. And even as people have the option of adopting a dog, as the Scheeles did in the case of Shadow, other people continue to buy dogs – just as they might buy bananas or a couch – from people who breed them. As a result of the large "supply" which such purchases feed, three to four million dogs alone are "euthanized" every year in shelters. Dogs (and other nonhuman animals) are also routinely subjected to painful medical experiments (i.e., vivisection) – to test drugs, cosmetics, and other items that human beings use.

And then there is the "elephant in the room": the fact that human animals kill and consume the bodies and bodily discharges of tens of billions of nonhuman animals every year. If there were a singular indication of how little inherent value we attribute to nonhuman animals, it would be the fact that we are prepared to hold them captive – a group of individuals, each capable of suffering – in the tens of billions so we can slaughter them and eat their muscles, their killed babies' milk, and their eggs, and wear their skins and their hair. Though they are living, feeling beings, we treat them as things that we are free to manufacture, use, and discard at will when they are no longer useful to us.

How, Then, To Understand Damages for Emotional Distress When a Companion Animal Is Killed?

In sum, nonhuman animals are "things" in the eyes of the law and, more generally, in the eyes of society. Given this reality, what are we to make of a possible ruling by a court that permits the award of substantial damages to a man and a woman who suffered the loss of their dog to a shooter? I would suggest that such a ruling likely reflects one or both of two distinct phenomena.

The first is a recognition that some people place a value on "things" that other people do not value at all – that is, an understanding that the market does not necessarily capture what a piece of property means to its particular owner. In the case of a person who lives with a companion animal, that person might love the animal in the way that human beings love other human beings. Though society does not love animals in this way (as evidenced by its use of them in medical research, its dispatching them to – and in – "shelters," and its permitting the "breeding" of them for sale), it might still respect the right of the individual human being to choose a different path. You are free, in other words, to treat your dog as a member of the family, even though you have no obligation to do so (and even though people might remark – if you seek medical treatment for your companion – on how you could "replace" the dog for much less money than it takes to heal "its" medical problems).

When a defendant violently disregards the plaintiff's fondness for a dog by killing that dog, the law may be more willing to take the perspective of the owner-plaintiff than the perspective of the killer-defendant in the dispute. Were the very same dog living in a medical research facility, however, people could subject him to painful experiments and then "sacrifice" (a.k.a. kill) him when he outlived his utility to the experimenters, without triggering any right to recover damages of any kind. Stated differently, the loss-of-companionship claim honors the feelings of the property owner, rather than any inherent value that the law sees in the "property" – in this context, the animal himself.

If an owner loved a special heirloom – say, a lamp – very much, then a court might similarly compensate him for its destruction, despite its limited value in the market. That would not represent the recognition of "rights" for lamps, nor would it suggest any general embrace of the proposition that lamps, as a class, are entitled not to be destroyed. Many people seem to love their electronic gadgets, but this does not indicate an "iPhone rights" movement on the horizon.

The second phenomenon that could manifest itself in a decision to award emotional-distress damages to the dog owners is the desire to demonstrate that our society does not tolerate the infliction of "unnecessary" suffering and death on nonhuman animals. When a defendant commits an act of violence against a nonhuman animal, and the act does not fall within the (many) socially-approved categories of such violence, then the law will, on occasion, express outrage. We saw a similar narrative in the criminal prosecution of Michael Vick for his involvement in dog-fighting, a prosecution the hypocrisy of which was very salient, as an op/ed article by Professor Gary Francione and another one by me discussed at the time.

By intermittently (and arbitrarily) acting as though animal interests count, we permit ourselves to nurture the delusion that we do, in fact, draw meaningful lines and prohibit (or punish) unjustifiable violence toward animals. In truth, however, we do not.

Would a Victory for the Scheeles in the Vermont Supreme Court, Overall, Be Good or Bad?

In sum, I believe that a victory for the Scheeles would not alter the current status of nonhuman animals. Yet my inclination, if I were among the Vermont Supreme Court's Justices, would be to side with the plaintiffs, if only because what the defendant allegedly did to the plaintiffs (putting aside what he did to the dog) is, in fact, terrible. As people who have lost beloved companion animals can attest, it is very painful to see that loved one die, and civil lawsuits ought accordingly to acknowledge that pain. Like the proverbial tree that falls in the forest when no one hears it, however, the death and suffering of nonhuman animals who do not have the good fortune to find love in the eyes of their human owners will continue to make no sound, no matter how the Vermont case is resolved.

There have been, and likely always will be, people who feel strong love and attachment to the particular nonhuman animals who live with them and share their homes. Such love, however – whether it is legally honored or not – does not alter the truth about what human beings do to our fellow earthlings simply because they are not human, any more than Thomas Jefferson's professed love for Sally Hemings in any way vitiated or mitigated the institution of race-based, chattel slavery.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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