Damages for Death or Injury of an Animal

Table of Contents:

·  Introduction

·  Recovery of Damages in Criminal Prosecutions

·  Recovery of Damages in Civil Lawsuits

·  Recovery of Damages in Small Claims Court

·  Amount of Damages

·  Establishing the Animal’s Value and Proving Other
Damages


·  Secondary Sources

·  Glossary of Common Terms

Introduction

This memorandum is designed to provide a general introduction to handling
companion animal wrongful death or injury cases both for caretakers of animals who
have been injured or killed and for attorneys handling these cases for their
clients. Because each state and, in some cases, each county has its own rules
and procedures, it is important to be mindful of local practices that may
affect the ability to successfully recover damages for the death or injury of
an animal companion. An attorney (if you have one) or the local court clerk can
provide more information on the local rules of the jurisdiction.

When a companion animal has been killed or injured, there are generally
three ways of gaining monetary redress: (1) if the local prosecutor files a
criminal charge of cruelty to animals and the perpetrator is convicted, the
court may award compensation for economic losses as part of the perpetrator’s
sentence or punishment; (2) the caretaker of the companion animal can file a
civil lawsuit (usually with the help of an attorney); and/or, (3) the caretaker
of the companion animal can file a lawsuit in small claims court (which are
streamlined and simplified so that people can sue without an attorney).

The biggest problem with bringing a lawsuit is that even if you win, you
usually do not recover very much money because most courts limit recovery to
the cost of replacing the companion animal with another animal. Because of the
low potential for a large recovery, some lawyers are unable or unwilling to
take these cases on a contingency basis (which means they get a certain
percentage of any damages awarded by the court). It is possible, therefore,
that you could invest more money in legal fees than can be recovered even if
you win.

On the other hand, if the perpetrator’s conduct was intentional and
malicious, it may be possible to seek punitive damages. In some states, courts
have also recognized that companion animals are unique and cannot simply be
replaced. These courts may permit caretakers to recover the "reasonable
sentimental value" of the companion animals, as long as the sentiment is
not "excessive." In addition, the court may also allow damages for
emotional distress. One or more of these factors can increase the potential
recovery from a few hundred dollars to perhaps several thousand depending upon
the facts and circumstances of the case. (Damages are discussed more fully below.)
In addition, caretakers who face limited damages can choose to file in small
claims court, an inexpensive and simple forum designed for people to bring
cases on their own without attorneys.

Recovery of Damages
in Criminal Prosecutions

The first way to recover damages involves a criminal prosecution of the
perpetrator. The local prosecutor (often called the “district attorney” or
“county attorney”) can file a criminal complaint charging the perpetrator with
a violation of the state’s
anti-cruelty laws
if the injury or killing of a companion animal was willful or purposeful.
(Obviously, if the injury or death was a mere accident, no crime is likely to
have occurred, and redress can be sought only through a civil lawsuit or action
in small claims court.) Most, if not all, states have anti-cruelty statutes
that will not only punish the perpetrator, but allow you, the human victim, to
recover damages. For example, in Alabama,
the anti-cruelty statute provides that

[a]ny person, who unlawfully,
wantonly or maliciously kills, disables, disfigures, destroys or injures any
animal or article or commodity of value which is the property of another must,
on conviction, be fined not less than twice the value of the injury or damage
to the owner of the property nor more than $1,000.00 and may also be imprisoned
in the county jail, or sentenced to hard labor for the county for not more than
six months, and so much of the fine as may be necessary to repair the injury or
loss shall go to the party injured. (Alabama Code Section 3110, emphasis
added.)

In virtually all states, even where an anti-cruelty law does
not mention damages, the caretaker can still generally be compensated for the
injury or death of the companion animal if the defendant is convicted. In California, for example,
restitution is mandatory for all persons convicted of any crime, and cruelty to
animals is no exception. You, or your attorney should contact the local
prosecutor’s office, probation department or clerk of the criminal court for
more information. For information on related statutes, see www.animallaw.info.

Purposely injuring or killing a companion animal is a crime. You should call
the local police department or sheriff’s office and file a complaint just as
you would if someone stole your car, robbed you, or assaulted you. The police
officer, sheriff’s deputy, or humane officer will generally take a report and
file the case with the local prosecutor. Citizens are also entitled to file
complaints directly with the county prosecutor, which is useful if the local police
do not respond as thoroughly as the situation may warrant.

Prosecutors have wide discretion in whether or not to file a criminal
complaint. If a complaint is filed and the defendant is convicted, the animal’s
caretaker should be able to recover damages. It is important to keep in contact
with the local police and prosecuting attorney to help ensure compensation for
losses. In some states, the district attorney’s office has a person who is
assigned to victims of crimes and will be the primary contact. In California, for example,
this person is called the “victim-witness advocate.” In other states, it will
simply be the prosecuting attorney to whom the case is assigned, or the
probation officer after conviction.

If the prosecutor determines not to file a case, it is important not to get
discouraged or give up. There are many reasons why prosecutors refuse to file
cases; some of them are good reasons, others are not. In some cases, the
prosecutor may determine that there is not enough evidence to sustain a conviction
because of the relatively high burden of proof (he or she must establish the
defendant’s guilt “beyond a reasonable doubt”). In other cases, the prosecutor
may simply not think the case is important enough. For a better understanding, see: Why Prosecutors Don’t Prosecute. Unfortunately, an all-too-common reaction
from prosecutors or police is “it’s just a dog.”

Because the standards of proof and recovery are completely different in
criminal actions, regardless of whether the prosecutor files a case or not, the
caretaker can still recover damages by suing the perpetrator in civil court. As
a general rule, the person whose animal has been injured or killed should also
not forego a lawsuit just because a criminal case has been filed. All states
have what are called “statutes of limitations” which require the lawsuit to be
filed within a certain period of time from the date of harm, generally (but not
always) as little as six months to one year.

Meanwhile, criminal cases can drag on for long periods of time, they can
ultimately be dismissed, defendants can be found “not guilty,” or the jury may
simply fail to reach a verdict. (Caretakers should keep in mind that because of
the different standards of proof between criminal and civil cases, a verdict of
“not guilty” does not necessarily hinder recovery of damages in a civil case.)
In such cases, it may be too late to file the civil case. Even if the defendant
is convicted, a civil suit will allow the caretaker to seek punitive damages
and perhaps damages for emotional distress which are generally not available
under criminal restitution statutes. And a criminal conviction will provide the
requisite finding of malice for proof of punitive damages. (Punitive damages
are discussed more fully below.) The caretaker should therefore give serious
consideration to pursuing both the criminal case and a civil case
simultaneously.

Recovery of Damages
in Civil Lawsuits

If someone has injured or killed your animal companion, you may be entitled
to damages regardless of whether the animal was injured or killed on purpose or
accidentally so long as the conduct was at least negligent. When an animal is
injured or killed, you are generally entitled to compensation for the “market
value” of the animal, veterinary bills and possibly punitive damages, mental
anguish and loss of companionship. What compensation is available depends
entirely on the facts and circumstances of each case, and differs significantly
from state to state.

A growing number of lawyers specialize in cases involving animals, and some
of them may be willing to handle the case. However, people often mistakenly
assume that when their animal is injured or killed they need the help of an
attorney who specializes in animal-related cases. When someone kills or injures
your animal, the law primarily (although not exclusively) sees this as an
injury to property. A lawyer who specializes in personal injuries or injury to
property (called “torts” in the law) should be able to handle the case.
However, due to the limited potential for recovery of damages it is possible to
pay more for an attorney’s services than you are likely to recover if you win
your case, barring an award for punitive or emotional distress damages.

Recovery of Damages
in Small Claims Court

If the caretaker is unable to afford a lawyer, or cannot find one willing to
handle the case, he or she should consider going to small claims court
(sometimes called “district,” “magistrate,” or “municipal” courts depending on
the state) where the caretaker can sue without an attorney.

The procedures followed in small claims courts vary by state, including the
maximum amount for which one can sue, who can sue, and what papers must be
filed where and when. Although it is important to be prepared and follow the
rules, there is no need to feel overwhelmed. This court is specifically
designed for citizens to bring cases on their own, and citizens are not
expected to have legal experience. Your local court clerk will provide a copy
of the small claims court rules for a particular jurisdiction, as well as any
necessary paperwork. In addition, there are several legal self-help books on
suing in small claims court, such as those by Nolo Press and others, which may simplify
matters even more.

While the details of using small claims court vary from state to state, the
basic approach necessary to prepare and present a case properly is remarkably
similar everywhere. It is important to note at the outset that recovery will generally
be limited to "outofpocket" expenses. This includes what are termed
“general and consequential damages,” such as the money lost as a result of
veterinary bills or the cost of replacement of the animal if the pet has been
killed. In small claims court, you generally cannot be compensated for the loss
of your animal companion’s sentimental value, pain and suffering, or punitive
damages, an important consideration depending on the jurisdiction and facts of
the case.

The maximum amount of money for which one can sue in small claims court also
varies, but typically ranges from about $2,000 to $10,000. It is important to
verify the maximum amount with the court clerk prior to filing the case.

There are several advantages to small claims court. To begin with,
caretakers whose animals have been injured or killed do not need an attorney
(in some states, like California,
attorneys are not allowed during the hearing). Second, procedures are usually
simple and straightforward. Often, the form merely requires a brief statement
of the “wrong” such as “John Doe injured my dog, which cost me $3,000 in
veterinary bills.” Finally, aggrieved caretakers do not have to wait a long
time to get their case heard and resolved. Most disputes are heard within a
month or so, the hearing itself seldom takes more than an hour, and a judgment
is usually pronounced either right there in the courtroom, or by mail within a
few days.

Amount of Damages

There are different types of damages that can be recovered when an animal
has been injured or killed. These include the market value of the animal
companion, as well as consequential damages (“out-of-pocket” expenses such as
veterinary bills). If the conduct was particularly egregious, the caretaker may
also seek punitive damages. Finally, in some jurisdictions, courts will allow
damages for emotional distress, often called “mental anguish” or “pain and
suffering.” To the extent that the law allows and the facts of the case are
sufficient, individuals should consider seeking all types of damages.

Unfortunately, while the law generally allows compensation for many
different types of injuries, courts have not unanimously extended those
remedies to cases where animal companions have been injured or killed.
Traditionally, many courts have restricted the measure for loss of an animal to
the animal’s market value. This has been determined by looking at the animal’s
“commercial” qualities such as breed, pedigree, service, particular traits and
profitability. Under this approach, courts will award the amount of money
necessary to replace the pet in the market place and may also award
consequential damages to the extent that they are reasonable. The myopia of
courts in this regard results from the view that the law regards animals as
mere “property,” no different than if the perpetrator injured someone’s car or
other piece of personal property.

Fortunately, some states have understood that animals occupy a unique place
in our society and within families, and that their value in our lives far
exceeds that of mere property. These courts have allowed recovery for emotional
distress.

Depending on the facts of the case and type of damages being
sought, there is much disparity and uncertainty among the states.

However, no matter which state one lives in, no matter what
type of proceeding (criminal, civil, small claims) is involved, no matter what
type of damages is being sought (market value, consequential, punitive,
emotional distress), the burden is always on the plaintiff, the person bringing
the suit, to prove damages with some degree of certainty.

It is therefore important to keep a file or folder with all the evidence to
prove damages, including such obvious things as veterinary bills and records
(past and present, including routine check-ups and vaccinations), training
certificates, purchase receipts, pedigree papers, proof or examples of unique
or special qualities, photographs of the animal (before and after) and the
like. The file should also contain evidence showing your relationship with and
attachment to the animal. This would include, for example, photographs of time
spent with your animal companion, names and addresses of witnesses who can
testify about her importance to your family, how much it will cost you to
replace her, or any other evidence that is helpful in establishing her value.
As a general rule, the more proof of damages you have, the more you are likely
to recover within legal limits; and the more organized you are, the better the
chance of success if the case has merit.

Establishing the
Animal’s Value and Proving Other Damages

Assuming that an animal has been wrongfully injured or killed, a very
important issue arises as to the method of calculating the monetary damages to
compensate the caretaker. Establishing proof of damages is likely to be the
most difficult task for the attorney at trial or for the citizen suing in small
claims court.

As noted previously, some states limit recovery to the market value of the
animal and completely disallow damages for “pain and suffering.” In many cases,
the issue turns on whether the theory of recovery involves only consequential
or also punitive damages, and therefore depends on the “wrongfulness” of the
perpetrator’s conduct. In short, although a state-by-state review of the
leading cases follows, it is not a substitute for good lawyering or proving all
types of damages as the law and facts allow. It is highly advisable to leave no
evidence as to value unproven.

One should consider the companion animal’s market value as well as the
actual value to the human companion and establish the animal’s desirable
characteristics, such as disposition, qualities and traits, and level of
training. From a practical standpoint, the lawyer or caretaker should also
provide evidence of breed, intelligence, pedigree, registration, services,
health, purchase price, veterinary costs, etc. Finally, the lawyer or caretaker
should provide evidence of sentimental value especially since in emotional
distress cases it is relevant to show extent of injury.

To establish the market value of your companion animal, the court determines
the amount that will return you to your status prior to the injury or death.
The calculations must be done on a case-by-case basis and may include pedigree,
purchase price, special abilities or training of the animals, and the age and
general health of the animal.

In addition to market value, plaintiffs should seek (“plead and prove”) consequential
damages, the normal and foreseeable losses that arise from the injury. To
recover consequential damages, the caretaker must show that the expenses would
not have been incurred if not for the injury. An example of consequential
damages is the veterinary costs of trying to help the animal. If these are
reasonable, courts will normally award them. These may also include costs for
care and treatment of your animal companion, increased expenses for special
diets, special training for a replacement animal consistent and the like.

You should also not forget about seeking punitive damages, where
appropriate. Punitive damages are not meant to compensate you for injury to
your property, but to punish the person causing the injury. The actions of the
perpetrator must be malicious, willful, or show reckless disregard of the
rights or safety of others. In determining the appropriate amount for a
punitive damage award, courts may consider the degree of malice, the amount
needed to deter such conduct, the wealth of the perpetrator, the cost of
bringing the lawsuit, the sentimental value of the animal, and the degree of
pain and suffering of the victim.

This not only opens the case to evidence about the animal-victim, but also
gives one a new angle to punish animal abusers. Where the criminal system
breaks down, this is where the human advocate can redress the injury to the
animal-victim. Also, cases hold that even if there is a criminal conviction and
restitution is awarded, the caretaker may still seek a civil damages action.
Your chances of recovery and being able to submit evidence related to mental
suffering are increased if you can demonstrate that the act was wanton, willful
or malicious.

If the court allows a claim for emotional distress, types of proof are similar
to punitive damages with particular focus on the sentimental value of the
animal and the extent to which the animal and human victim have suffered or
continue to suffer.

To prove value, the best evidence is testimony by an expert in the area of
that particular breed of the animal. Anyone, however, with some amount of
knowledge and experience in this area could provide good evidence of the
animal’s value. You should also testify as to your opinion of the value of your
animal companion. Both you and the expert witness should describe how you
determined the animal’s value. To determine value, caretakers and others may
consider veterinary expenses, attachment to the animal, and evidence of love
and sentimental value to the extent that the law and/or jurisdiction allows.
Also, pedigree, registration, purchase price, offers to purchase, income
produced by the animal, characteristics, training, awards, expenses and other
materials need to be made available to the court to establish value.

The defense strategy will likely include factors that reflect unfavorably on
the value of your animal companion. These may include poor training,
viciousness, lack of registration and lack of pedigree, as well as testimony of
people who claim to have had bad experiences with your animal.

Secondary Sources

Burton, Peter & Frances Hill, “How Much will you Receive in Damages
from the Negligent or Intentional Killing of your Pet Dog or Cat?, “New York
Law School Law Review, 34 NYLSLR 411 (1989).

King, Joseph H., “The Standard of Care for Veterinarians in
Medical Malpractice Claims,” Tennessee
Law Review, 58 TNLR 1 (1990).

Squires-Lee, Debra, Note: “In Defense of Floyd: Appropriately
Valuing Companion Animals in Tort,” New
York University
Law Review, 70 N.Y.U.L.Rev. 1059 (1995).

Wise, Steven M., “Recovery of Common Law Damages for
Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful
Death of a Companion Animal,” Animal Law Journal, 4 ANIMALL 33 (1998).

Glossary of Common
Terms

An attorney should be able to explain the legal process in layman’s terms,
without legal jargon. If damages are part of a criminal case, the local
prosecutor, probation officer, victim advocate or even the judge can help the
caretaker understand the process without the need to learn the technical
language of attorneys and courts. However, if you decide to sue in small claims
court, you should familiarize yourself with some of the more common terms.
Because these courts are designed to be simple, straightforward, and assume
most citizens do not have legal experience or training, there is not a lot of
technical language used. However, understanding the more common terms may make
the process go more smoothly and seem less overwhelming.

Abstract of Judgment: The document provided to
you by the court clerk’s office if you win your case that says your have a
money judgment against another person.

Calendar: List of cases to be heard by a small
claims court on a particular day.

Commissioner: A court employee designated to hear
Small Claims cases. A commissioner has the same powers as a judge to hear and
decide cases.

Continuance: A court order that a hearing be
postponed to a later date.

Default Judgment: A court decision given to a
plaintiff (the person filing suit) when the defendant fails to show up for
court after having been served with a notice to appear.

Defendant: The person being sued. In this case,
the person who injured or killed the companion animal.

Hearing: The time when the judge hears the
evidence including any witnesses, photographs and/or other documents provided
by the plaintiff and the defendant.

Judgment: The decision rendered by the court.

Magistrate: Another name for a judge or
commissioner.

Mediation: Many small claims courts recommend or
require parties to meet with a neutral third party (called a “mediator”) to try
to work out a settlement.

Plaintiff: The person suing. In this case, the
person whose animal has been injured or killed.

Statute: A law.

Statute of Limitations: The law designating a
time period in which a plaintiff must file a lawsuit. It is normally figured
from the date the defendant injured or killed the animal, and varies depending
on the type of suit, but is generally six months to one year for these types of
civil lawsuits.

Tort: Injury to a person or property for which a
civil (money) remedy may be obtained. In the United States, companion animals
are considered the property of their caretakers. When someone has injured or
killed someone else’s companion animal, it is called a “tort” case, which is
abbreviated from the word “tortuous” (wrongful) interference with some personal
or property interest.

* In our country’s legal system,
animals are considered mere property – legal “things.” When an animal is killed
or injured, most courts see this as an injury to property, no different than
damage to a car or other personal property. For this reason, courts and legal
cases refer to the “owner,” rather than “caretaker,” of an animal. ALDF
believes that animals have intrinsic value as well as value to people far
beyond mere “property.” Indeed, many people consider animal companions as
cherished friends and even members of the family. Therefore, even though the
law considers people as “owners” of their animals, they will be referred to as
“caretakers” in this memorandum. Note: At least one court has recognized that
animals have value in their own right, in addition to their special value to
their human companions. (Bueckner v. Hamel (1994) 886 S.W.2d 368, Andell, .,
concurring.

Attorneys Nathan J. Winograd, Shawn
Thomas, Valerie J. Stanley, David S. Favre and Murray Loring contributed to the development
of this memorandum. © February, 2001, Animal Legal Defense Fund.

The Animal Legal Defense Fund continues
to fight to strengthen state anti-cruelty statutes. For information on how you
can work to improve the anti-cruelty laws in your state, see ALDF’s Model
Laws
.

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