NJ - (Star Ledger) - SEEKING JUSTICE FOR ANIMALS CREATES LEGAL NICHE
Date: Tue, 7 Jun 2005
Precedent-setting cases include pet trusts and alleged vet malpractice
Letters to the editor: letters@starledger.com
Monday, June 06, 2005
BY KATE COSCARELLI
Star-Ledger Staff
Baxter was a perky little cairn errier with long white hair that covered his eyes. But he had aggression issues. His adoptive owner found him to be an unrepentant biter who sometimes had to be handled with fireplace gloves.
Susan McKenney eventually gave up and ad him euthanized more than a year ago, but the fight over his death and his worth is still raging before a state Superior Court Judge in Somervile.
The owner of Small Dog Rescue, in rinceton, where the little dog lived prior to adoption, is suing McKenney, saying the dog should have been returned to his care. He wants compensation for his loss and punitive damages.
"He was a great dog, one of my avorites," said Emmett Wilson, who spoke fondly of Baxter's talent for balancing a Frisbee on his head.
A few years ago, a suit over the loss of a pet might have been tossed long before reaching trial. But more and more animals -- and their owners -- are getting their day in court.
Around the country, the legal ommunity is starting to pay serious attention to cases involving pets: pet trusts, veterinarian malpractice cases and suits that push to expand emotional damages so they cover a pet's death or injury.
"There is more happening since the year 2000 than in the previous century. ... A whole convergence of different energies are creating this antastic, really, volcano of change," said Carolyn Matlack, president of Animal Legal Reports, which tracks lawsuits and legislation. "The courts are struggling to figure out how to create justice."
In recent years, nearly 30 states, ncluding New Jersey, have adopted laws allowing people to create trusts or make accommodations for pets in wills. Veterinarian malpractice cases, though still a small number, have increased 320 percent in the past five years compared with the previous five, according Matlack's calculations. A decade ago, only a handful of law schools offered classes on animal law, and today there are more than 40, including Columbia University School of Law.
The New Jersey State Bar Association created an animal law section with about 10 members less than three years ago. Now it has over 25, said Sherry Ramsey, a Freehold lawyer who chairs the group.
VALUE OF A PET
Since most states already have sophisticated criminal statutes regarding the treatment of animals, most of the current surge in activity is happening in the civil arena.
One of the primary ways is estate planning. A few years ago, the New Jersey Legislature adopted a measure that allowed people to set up a trust for the care of a pet.
Montclair resident Barbara Mather, who has had two open-heart surgeries and has no relatives, said she plans to update her will soon to make accommodations for her cat, Polly, an aging but loyal companion so painfully shy she hides behind chairs when visitors arrive.
Mather wants to make sure her sensitive cat will be sensitively cared for.
"She's there all the time. She keeps me company," Mather said.
Courts also are showing a willingness to regard pets and other companion animals, like guide dogs or show horses, as a unique form of property, worth more than their actual purchase price.
"There seems to be a nationwide awareness of the fact that animals are not just plain pieces of property like a chair. They have emotions and feelings and their market value does not, in any way, come close to defining what their value is," Matlack said.
A number of cases around the country are tackling that issue.
Earlier this month, a woman in Seattle got $ 45,000 in damages for emotional distress when she sued her neighbor after his dog killed her cat. A Texas court recently awarded $ 10,000 in emotional damages to the owner of a mini-schnauzer who got away from a groomer and was killed. And last year, a jury in California said two veterinarians had to pay a dog owner $ 39,000 for bills and the animal's "unique" value after the dog was misdiagnosed and died.
In New Jersey, a Sussex County case last year set precedent for the kind of damages that can be sought when a pet is maimed. A judge ruled the parents of 13-year-old Jaimie Morrisroe of Sparta, deserved to seek damages for emotional distress following the injury of the girl's horse.
"This was her pet and her best friend," said Paul Abramo, who represented the family.
Max became lame in 2000 after the show jumper was improperly taken from a travel trailer and fell several feet, bashing his hock. Hoping to return the horse to competition, the girl's parents hired a chiropractor, acupuncturist and even a horse whisperer. It became clear that the horse would have to be sent to pasture. When the horse was retired, the girl became distraught.
"Domestic animals are living creatures capable of establishing very special relationships with humans. Because of their unique qualities, it makes good sense for the law to distinguish animals from inanimate objects," wrote Ronald Graves, who is now an Appellate Division judge.
The suit settled privately after jury selection, Abramo said. As a further result, legislation was introduced in Trenton that would allow a civil action against a person who committed an act of cruelty against a domestic companion animal. The bill is pending.
NEW LEGAL GROUND
Lawyers who handle animal cases say that while courts are starting to be receptive, getting a case to court is one thing, but winning is a separate challenge. Because the field is still so new, lawyers have little case law to back them up and must be creative in drafting legal briefs.
Linda Sinuk, who is handling the case over Baxter, said she still hears snide jokes from opposing lawyers or judges in almost every suit she has handles.
"It's touch-and-go along the way ... you have to be very committed," Sinuk said.
Some long-time lawyers in the field say the focus on getting the courts to recognize pets as having more worth than their market value doesn't go far enough.
Gary Francione, a professor at Rutgers University Law School-Newark, has been teaching animal rights courses for two decades and said he worries that as long as animals are defined as the property of humans they will never be fully protected.
Francione has defended students who don't want to dissect animals in science class, prisoners who want vegan food and protesting fur manufacturers.
The current wave of cases "aren't going to change anything significantly for animals," Francione said. "They are not really interested in challenging the property paradigm."
However, many lawyers who are taking animal cases now, said it is important to push on every front.
"Every little step we take makes people more aware ... everything we do to educate people is a step forward," Ramsey said. "It's never going to happen overnight, but we're making progress."
As for the case involving Baxter, the woman who adopted the dog said she consulted experts and made the responsible choice, fearing the dog could hurt someone. And putting Baxter down wasn't easy.
"It was a heartbreaking decision that caused me a great deal of anguish," McKenney said.
The parties are now trying to mediate to reach a settlement before trial.
Kate Coscarelli covers the business of law. She may be reached at kcoscarelli@starledger.com or (973) 392-4147.
Posted on SHARE Yahoo group June 7, 005