Damages for Death or Injury of an Animal
Table of Contents:
· 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
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.
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.
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.
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 “out of pocket” 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 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.
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.
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
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.
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).
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.