Justice

Animal Law Update

Advocating for Justice in Oregon: Neglected Horse Sues Former Owner

by Nicole Pallotta, Academic Outreach Manager

[This] claim simply weaves together two uncontroversial, well-established legal principles: first, that animals are properly considered the victims of animal cruelty crimes, and second, that victims of crimes have a right to sue their abusers in civil court for damages for injuries caused by the defendant.

— Response to Defendant’s Motion to Dismiss, JUSTICE, an American Quarter Horse, by and through his Guardian, Kim Mosiman, Plaintiff, v. GWENDOLYN VERCHER, Defendant (filed September 4, 2018)

Summary

In May 2018, the Animal Legal Defense Fund filed a unique lawsuit in Oregon on behalf of a severely maltreated horse named Justice. Justice suffered starvation, frostbite, and other grave injuries due to his owner’s failure to provide him with basic care, including food and shelter. As a result of the defendant’s criminal neglect, Justice has permanent injuries that will require ongoing and costly medical care for the rest of his life.

What makes this lawsuit unusual is that Justice is named as the plaintiff.

Justice brings a negligence per se claim, based on Oregon’s anti-cruelty statute, against the person who caused his injuries — his former owner, Gwendolyn Vercher, who pled guilty to misdemeanor animal neglect. Any damages awarded in this action will be placed in a trust, of which Justice is the sole beneficiary.

Although the first of its kind, this case is grounded in established Oregon law, which recognizes animals as “sentient beings” who can also be “victims” of a crime. Under Oregon law, victims also have a right to sue the party who has inflicted harm.

If successful, this would be the first case to establish that animals have a right to sue their abusers.

Background

Disregarding the requirements of Oregon law, Defendant denied Justice adequate food and shelter for months, abandoning him to starve and freeze. As a result of this neglect, Justice was left debilitated and emaciated. He continues to suffer from this neglect, including a prolapsed penis from frostbite. These injuries will require special and expensive medical care for the remainder of his life.

On March 14, 2017, a concerned neighbor observed that Justice — then called Shadow — appeared to be underfed and emaciated. The neighbor called Oregon Horse Rescue, asking them to help the clearly suffering horse. A few days later, Justice’s then-owner, at the urging of this neighbor, took the horse to be examined by a vet. Justice was transferred to another facility for urgent hospitalization.

Justice was 300 pounds underweight and afflicted with lice and rain rot, a skin infection common in neglected horses. His genitals were severely injured due to frostbite and, despite treatment, may still require partial amputation. Dr. David Asmar of Eagle Fern Equine Hospital observed that:

Justice was lethargic and weak and had significant difficulty walking…with a BCS of 1 out of 9, indicating extreme emaciation. When offered food, Justice had an excellent appetite and ate quickly without pausing between bites, behavior commonly observed in starved horses…Justice’s penis was swollen, traumatized, infected and prolapsed…

Dr. Asmar said Justice’s prolapsed penis was the most severe case he has ever treated. In addition, given the extent of his injuries when he was admitted to the veterinary facility, Justice appeared to have been suffering for a substantial amount of time before being examined.

Justice will…likely have a lengthy and potentially painful recovery… [G]iven the extent of Justice’s emaciation… [he] had been starving for several months prior to receiving treatment. During these months Justice would have been in significant pain and chronically hungry.

Due to complications resulting from his multiple injuries — a direct result of his former owner’s actions — Justice will require ongoing expensive care and special sheltering requirements that he otherwise would not need.

On July 10, 2017, Justice’s former owner pleaded guilty to first degree animal neglect. Per her plea agreement, Gwendolyn Vercher agreed to pay restitution to Sound Equine Options, the rescue organization that took Justice, for the costs of the horse’s care prior to July 6, 2017, but nothing past that date.

Kim Mosiman, executive director of Sound Equine Options, took Justice under her care and has been providing for his medical treatment since Vercher relinquished custody. Mosiman created a trust, of which Justice is the sole beneficiary, to provide for his care beyond July 6, 2017.

Any funds obtained as a result of this lawsuit will be put into the Justice Equine Trust — directly benefitting Justice as a remedy for the harm inflicted on him by his abuser.

Complaint

Although it marks the first time a nonhuman victim has sued for damages, this lawsuit merely uses existing law to advocate for Justice, asking the court to take the logical next step based on well-established rules.

Oregon’s state legislature has explicitly acknowledged that animals are “sentient beings capable of experiencing pain, stress and fear.” In addition, Oregon courts have recognized that animals have legal interests and thus are entitled to statutory protection. They are, therefore, “victims” of violations of the animal cruelty statutes.[1] Oregon also recognizes that victims have a right to sue their abusers for the harms they have suffered.

Since Justice is a member of the class of persons Oregon’s anti-cruelty law is intended to protect, based on the standard of care in that statute, he brings a negligence per se claim. Negligence per se is a common law cause of action in Oregon, through which a plaintiff may state a claim by alleging that:

 (1) defendant violated a statute; (2) plaintiff was injured as a result of that violation; (3) plaintiff was a member of the class of persons meant to be protected by the statute; and (4) that the injury plaintiff suffered is of a type that the statute was enacted to prevent.[2]

Justice is suing for the costs of his present and future medical care, as well as noneconomic damages for pain and suffering.

This money is intended to cover Justice’s medical expenses, because without these funds Justice will likely never have the life that he deserves, as a family’s treasured companion. As Mosiman told the Washington Post: “I’m trying to find someone who wants to adopt him, but if they find out they’re going to have to be financially responsible for him, he’s never going anywhere.”

Motion to Dismiss & Response

While this case presents a question of first impression, the extension of law it seeks has a firm basis in both logic and law… The Oregon Supreme Court has established that animals are victims and that victims are entitled to civil compensation. This Court should acknowledge the intersection of these rules in this case and deny Defendant’s motion to dismiss. 

– Response to Defendant’s Motion to Dismiss (filed September 4, 2018)

Standing for Animals

On August 18, 2018, the defendant filed a motion to dismiss. The motion relies heavily on a handful of federal cases in which courts have addressed legal standing for animals under certain federal statutes. Based on the holdings in those cases, the defendant argues: “Not just the weight of legal authority, but in fact all legal authority says one thing and one thing only: animals lack standing.”

This conclusion is incorrect. First, each of the five federal cases cited in the motion to dismiss analyze statutory standing specific to a particular federal law. None of those decisions preclude an animal from having standing in a different case.

Second, two of the federal cases cited to bolster the defendant’s argument, Cetacean Community v. Bush and Naruto v. Slater, in fact held the opposite: that animals do have constitutional standing under Article III of the U. S. Constitution.

In addition, the defendant’s reliance on federal cases is misplaced given the fact that Justice’s claim arises from state law. Because negligence per se is a common law cause of action in Oregon, federal jurisprudence and cases dealing with statutory standing do not have bearing on this case. Standing doctrine in non-statutory actions in Oregon merely require the plaintiff to be “the real party in interest,” which — as the victim of the harms committed and recipient of the relief sought —Justice clearly is.

The only non-federal case the defendant cited to for the proposition that animals lack standing is a New York habeas corpus case filed by the Nonhuman Rights Project (NhRP). In that case, NhRP sought to free a chimpanzee from the cage in which he is being held and allow him to live outdoors in a sanctuary. The New York courts held chimpanzees are not “persons” and therefore could not avail themselves of habeas corpus protections.

However, on a later appeal to the New York high court, the case produced a striking concurrence from one of the judges. In the concurrence, Judge Fahey admitted he continued to ponder the issue and wondered whether the court had decided it correctly, writing:

“In the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision…I continue to question whether the Court was right.”

In addition, Judge Fahey argued passionately that reform is necessary and predicted change on the horizon regarding courts’ recognition of animals’ legal interests.

The question will have to be addressed eventually…Should [a non-human animal] be treated as a person or as property, in essence a thing? 

….The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person”… is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species…

The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice.

Central to the defendant’s motion to dismiss is precisely such an argument: that Justice is a not a “person.” However, it is well-established that legal “personhood” is not a biological category synonymous with being human. Ships and corporations, for example, can be considered persons for limited legal purposes — and last year, rivers in New Zealand and India were also granted personhood.

Legal personhood merely means an entity has at least some legally protected rights — such as the right to minimum care provided under Oregon’s animal cruelty statute, at issue in this case — in contrast to being a “legal thing,” which lacks the capacity to possess any legal rights.

Additionally, as the Animal Legal Defense Fund argues on Justice’s behalf in our response:

“Given the unique status of animals under Oregon law, and the fact that a holder of a legal right is properly considered a legal person, Justice is a person for purposes of vindicating his protected interests.”

Guardians for “Incapacitated” Parties

The defendant’s motion to dismiss also rests heavily on the argument that animals “lack the capacity” to sue, at times conflating lack of capacity with lack of standing, and derisively comparing a neglected horse’s claim to recover costs of medical care caused by extreme neglect to lawsuits naming “Satan and his Staff” as defendants and “Robin Hood” as plaintiff.

The dubiousness of comparing a living, feeling animal who has suffered tremendously to a fictional character notwithstanding, courts do allow suits by “incapacitated” parties, such as young children and mentally incompetent adults. In such cases, the inability to bring a suit independently does not mean those parties are stripped of their legal protections. Rather, courts routinely resolve this issue by allowing or appointing a legal representative, such as a guardian or “next friend,” a status that allows a third party to represent another in court.

In regard to Justice’s case, Oregon law specifically provides that minors or other incapacitated parties may sue through an individual who will represent the party’s interests in the case.

Advocating for Justice

The antiquated legal classification of nonhuman animals as property presents persistent challenges for animal advocates. However, important inroads have been made in the courts and legislatures toward differentiating animals from other types of personal property. An array of laws and court decisions recognize that animals are living, feeling beings with their own interests, as opposed to other forms of inanimate property, such as a lawnmower or chair.

This may seem an obvious distinction to anyone who has spent time in the company of animals, but the law can take time to catch up to changing social norms and scientific knowledge, the latter of which has made significant strides in recent years regarding animals. There has been a veritable explosion of interest in animal behavior over the past decade, and a steady stream of new studies reveal on a regular basis capabilities we did not know animals possessed (for example, this recent research showing that goats are drawn to happy human faces).

Although not as quickly as we might hope, our laws are starting to reflect what we now know about animals. In this case, we argue that the law already protects Justice’s interests, and we are simply asking the court to recognize that.

As Matthew Liebman, director of litigation for the Animal Legal Defense Fund, told the Washington Post:

“There have been a lot of efforts to try to get animals not only to be protected but to have the right to go to court when their rights are violated. [Those cases] haven’t found the right key to the courthouse door. And we’re hopeful that this is the key.”

Next Steps

There is a hearing on Justice’s case scheduled for September 14, 2018, in Hillsboro, Oregon. The Animal Legal Defense Fund’s Matthew Liebman will be arguing the case on behalf of Justice. Stay tuned!

Update – September 18, 2018

On September 17, 2018, the Washington County Circuit Court in Hillsboro, Oregon, dismissed Justice’s case for lack of standing, stating in a written opinion:

The court finds that a non-human animal such as Justice lacks the legal status or qualifications necessary for the assertion of legal rights and duties in a court of law…There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law…Perhaps an appellate court would come to a different conclusion if it wades into this public policy debate involving the evolution of animal rights…This court, however, is unable to take that leap.

In her motion to dismiss, the defendant had also requested attorney’s fees. However, the court denied this request, finding that:

[T]here is an objectively reasonable basis for the negligence claim asserted by Justice. The claim is not entirely void of legal or factual support. The problem is that there is not an adequate procedural avenue for Justice to utilize that would grant him access to the courthouse door. Counsel for plaintiff has been quite creative in an attempt to surmount this hurdle, and although unsuccessful at the trial court level, this court is not going to punish plaintiff by imposing an award of attorney fees for pushing the envelope. That would not be justice.

While we’re disappointed by the trial court’s decision, this isn’t the end. We anticipated that this case would ultimately be decided by the appellate courts, and we’re excited to take our case to the Oregon Court of Appeals. We’re optimistic they’ll agree that animals have the right to sue their abusers when they’re victims of cruelty.

Further Reading

[1] From complaint: “The Oregon Supreme Court in State v. Nix, recognized that animals are properly considered the ‘victims’ of violations of the animal cruelty statutes…The Court held that Oregon’s anti-cruelty laws intend to protect animals themselves, because ‘the legislature’s focus was the treatment of individual animals, not harm to the public generally or harm to the owners of the animals.’…Similarly, in State v. Fessenden, the Court referred to a neglected horse as ‘the victim of the crime—an animal entitled to statutory protection.’”

[2] McAlpine v. Multnomah Cty., 131 Or App 136, 144, 883 P2d 869 (1994).

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