In March, Menu Foods recalled dog and cat foods produced at twoof its facilities and sold under a number of different brand names.Menu Foods since expanded the recall and several other companiesvoluntarily withdrew their products from the market.

Now, pet owners who allege their animals died as a result of thecontaminated food are taking aim at the companies, which haverecalled more than 100 varieties of dog and cat food. This raisesthe question of what is the proper way to compensate pet owners forthe loss of their companions.

More Than a Pet

Whether it is due to the negligent or intentional actions of athird party, or simply as a result of natural causes, the loss ofan animal can cause genuine grief for pet owners. For someindividuals, this grief can be similar to that experienced from theloss of a human family member.

Many see this as justification to change the law regardingdamages for the loss or injury to a pet. Claims for non-economicdamages such as emotional distress and loss of companionship due toloss of, or injury to, a companion animal, are becomingincreasingly more common. However, despite what appears to be agreater recognition by society of the significant bond betweenhumans and animals, claims of this nature are generallyunsuccessful.

Most often, these claims are invalid because the jurisdictiondoes not recognize the right to recover emotional-distress damagesfor a personal property loss. A few states allow for the claim, butthe claimant may have difficulty meeting the requirements for thiscause of action. Recovery is allowed only when the party claimingemotional distress for a property loss was physically injured andthe injury caused the emotional distress. In other jurisdictions, aclaim for negligent infliction of emotional distress requires theclaimant to witness the behavior, fear for the safety of thevictim, and have a close familial relationship with the victim.Since an animal is not legally a family member, the companionanimal owner's claim is invalid under this rule.

Damages for intentional infliction of emotional distress areavailable in claims that arise out of loss or damage to personalproperty, including companion animals, in many jurisdictions.Intentional infliction of emotional distress requires that theplaintiff prove the tortfeasor's conduct was intentional orreckless, the conduct was intolerable and offensive to generallyaccepted standards of decency, there was a causal connectionbetween the conduct and the emotional distress, and that thedistress was severe. Although a claim for intentional infliction ofemotional distress is likely to fail if the subject of the wrongfulconduct was the animal, recovery is possible if the court's focusis on the nature of the conduct rather than on the subject of theconduct.

Loss of companionship is generally not recognized as arecoverable item of damage, and some courts have comparedcompanionship claims to loss of consortium claims. Notsurprisingly, courts likely will deny recovery for the owner's lossof animal companionship in jurisdictions that limit claims for lossof human consortium to cases involving spouses or immediate familymembers. Some states have looked to their wrongful-death statute asa basis for denying recovery, and if the wrongful-death statutedoes not allow for the recovery of loss of consortium orcompanionship in a case involving the death of a family member,these states also will disallow recovery in cases involving thedeath of a companion animal.

Undoubtedly, the largest hurdle pet owners face in receivingcompensation for their loss is the law regarding animals' status asproperty. Historically, courts have treated pets as personalproperty, with no inherent rights and no status apart from theirowners. Therefore, if pets are injured or killed, their owners areonly allowed to recover the animals' fair market value. Theanimal's purchase price, age, pedigree, health, rarity, and showrecord are among the factors that are used to determine the amountof compensation.

All Mixed Up

The problem concerning adequate compensation arises because themajority of companion animals are mixed breeds with little or nocalculated value. For the majority of pet owners, a companionanimal's only “value” is in the companionship they provide, and the“animals as property” syllogism doesn't work. If a three-year-oldstereo is negligently destroyed by a third party, that party willlikely be responsible for damages equal to the price for which thatthree-year-old stereo could be sold. Apply this analysis to theloss of an animal, however, and it is likely that there will be norecovery for the owner because there may be no market for thatparticular breed or age of animal. Even if the value is based onthe cost of a new animal, this is likely to be a nominalamount.

Many argue that the legal system's valuation of a companionanimal is not in line with what an average pet owner is willing tospend on veterinary bills in order to preserve the animal. Further,awarding damages in the amount of the fair market value of acompanion animal serves as little or no deterrence for a tortfeasorin a case where the animal harmed is not a pedigree and has nospecial training.

Should we elevate the legal status of companion animals to thatof humans? Not necessarily. To allow non-economic damages for lossof a pet would give a remedy to people for pets where it doesn'texist even for some close human relationships. For example, the lawdoes not allow a plaintiff to sue for injury to one's grandparentor best friend.

A better way to address the law's antiquated view of animals aspersonal property may be the approach that has already been takenby some courts. Those courts have utilized a different method todetermine value, and damages are based on the animal's pecuniaryvalue to the owner. These courts recognize that, for mostindividuals, a companion animal is more than a mere item ofpersonal property, and that many pet owners consider the animal afamily member. This method, typically referred to as “specialvalue,” applies to any personal property that has no ascertainablemarket value, and recognizes that a companion animal's value mayexceed its market value. Numerous factors are considered whendetermining damage awards, including specialized training, rarityof the breed, breeding potential, companionship value, andprotective value.

Certainly for many pet owners, however, no amount of money couldever replace their animals or ease the suffering caused by theloss.

Kelly Maheu, JD, is a staff writer for FC&S. She may bereached at [email protected].