Every Dog Has His Day in Court

After a botched operation left Helen Evers’ Rottweiler, Lonnie, with mangled nails and a set of broken teeth, the dog was inconsolable--and so was Evers. Night after night, Lonnie wailed in pain--and Evers cried right alongside her.

So the Costa Mesa woman took Lonnie’s veterinarian to court and earlier this year won a $20,000 emotional-distress judgment. Legal experts described it as the largest emotional-damages award ever against an animal doctor, but they believe the record won’t stand for long.

In an age of pet day-care centers and bakeries specializing in gourmet dog biscuits, America’s bond with its four-legged companions is also reshaping the way courts view Rover and Rex.

“Animal law” started gaining notice two decades ago with a scattering of pet custody and wrongful death cases that raised eyebrows and provided fodder for late-night comedians. But the legal establishment is beginning to take notice, and 2000 is shaping up to be a watershed year for the fledging legal movement.

Besides the record judgment, two of the most prestigious law schools--Harvard and Georgetown--have joined a growing list of institutions that teach courses in animal law. The first textbook on the subject was published this year.

Tennessee on Monday became the first state in the nation to approve emotional-distress damages for the loss of a pet, while experts are awaiting a potentially precedent-setting Massachusetts appeals court decision on a wrongful death suit involving animals.

“Some courts are starting to recognize the power of the human-companion animal relationship,” said Steven Wise, an adjunct professor of animal law at Harvard University. “The law for so long has really only recognized animals as things, and courts generally only looked to their economic value with respect to losses. But that is slowly beginning to change.”

The victories so far have been limited mostly to lower courts and don’t involve decisions that set broad legal precedents. Animal law scholars, however, said these cases are laying a foundation for broader legal changes.

“A lot has been coming together in the past year. It seems like the doors are open,” said Sonia Waisman, an adjunct professor at California Western School of Law and co-author of the first animal law casebook.

For now, animal law attorneys are focusing primarily on broadening the rights of pet owners by recognizing the human suffering caused by the loss or injury of a pet.

But eventually, some activists hope courts will extend certain rights to animals--changing their status from simple property to something more. Such a shift could have broad implications, giving new protections to lab animals and prompting tougher punishments against humans who abuse pets.

While animal rights activists cheer at these prospects, others fear they will have negative repercussions. Some insurers for veterinarians, for example, worry that the success of animal law will leave them overwhelmed with litigation, pushing up the costs of animal health care.

“Someday there is going to be a precedent that says animals are more than chattel. It’s something we’re afraid is definitely going to happen,” said Jay O’Brien, executive vice president of ABD Insurance Services, a leading veterinary insurance company. “The problem is that it leaves it wide open for lawyers to ask for what they want.”

Others fear the movement could prompt an explosion of frivolous lawsuits alleging all sorts of wrongs against pets.

“It’s just another avenue to take advantage of the system by people seeking personal gain,” said Maryann Maloney, executive director of Citizens Against Lawsuit Abuse.

From Piece of Property to Family Member

The legal definition of an animal remains what it has been since biblical times: a piece of property.

A pet’s value typically has been based on a bill of sale and custody disputes resolved by determining which person purchased the pet.

One reason animal law was slow to evolve, said Jeanne McVey of the Animal Legal Defense Fund in Petaluma, Calif., is that “the animal use industry is extremely powerful and extremely entrenched.”

Still, while noting a paucity of law to protect farm animals, McVey said that “dogs and cats have made tremendous strides” in recent years. At least 27 states, including California, have felony animal cruelty provisions, she said.

In recent years, attorneys have asked judges and juries to assign far more emotional value to pets and grant them greater protections. They didn’t seek significant “rights” for animals but asked that their worth to humans be taken into consideration.

Courts balked at first. But in one case considered significant, a Texas appeals court justice in 1994 upheld a $4,300 jury award in a civil case involving the deaths of two dogs, Freckles and Muffin. The dogs’ owner argued that their neighbor, a hunter, shot the animals intentionally.

“Courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members,” the justice wrote.

Other cases followed.

Last year, a New York appeals court decided a long-running custody battle by weighing the interests of a 10-year-old cat named Lovey, whose owners were separating. It finally ruled that the feline should stay permanently with one of the owners, where Lovey “lived, prospered, loved and [was] loved.”

More recently, attorneys have applied to some pet cases the same legal precedents permitting emotional-distress damages for the loss of heirlooms and other property items of sympathetic value.

Legal scholars now have their eyes trained on a Massachusetts appeals court, which is expected to rule soon on whether a couple whose flock of sheep was killed by a neighbor’s dogs can receive damages as part of a wrongful-death lawsuit. The couple argues the sheep were more like children than property, saying they took the animals on trips to Dunkin Donuts and gave them free rein of the house.

If the court rules in the couple’s favor, it would be the first successful wrongful-death suit involving animals, according to Wise, the Harvard adjunct professor.

Along with such legal precedents, animal law is gaining standing through growing public awareness. For example, “Judge Wapner’s Animal Court,” a popular show on cable’s Animal Planet channel, tackles real-life animal disputes ranging from the death of a koi exposed to pesticides to the case of a sterile boxer. The show, starring former “People’s Court” judge Joseph A. Wapner, deals only with small-claims cases, and the parties represent themselves. But the disputes sometimes touch on the legal issues being hashed out in courts and law schools.

Animal Law Quickly Becoming a Specialty

As more pet owners seek their day in court, a growing number of attorneys are scrambling to serve them.

In the last two years, the number of attorneys registered as members with the Animal Legal Defense Fund has mushroomed from 450 to 600. And across the country, eager law students crowd classrooms for lessons on such topics as “Capital Punishment of Animals.” A total of 12 law schools offer such courses, up from five just five years ago.

They also use the first-ever animal law textbook--”Animal Law,” by Waisman, Pamela D. Frasch, Bruce A. Wagman and Scott Beckstead--which urges them to join the “burgeoning herd” of animal law attorneys.

These lawyers approach cases with a passionate mix of crusading fervor and unabashed affection for their four-legged clients.

Though not all subscribe to hard-line animal rights beliefs, many attorneys shun fur or leather clothing and avoid eating meat. Most are pet owners themselves and longtime devotees of the cause. Others are younger attorneys drawn to activism by personal experiences.

Robert Newman, a 36-year-old Santa Ana-based attorney, is one of them.

When his Lake Forest landlord ordered that his cat, Shredder, be declawed in 1995, Newman fought back and won. Since then, he has handled dozens of other animal cases, representing the interests of dogs, cats, birds and even a colony of ducks that some Aliso Viejo residents wanted removed from a public lake.

Most recently, Newman has been helping a Newport Beach woman retain custody of her Rottweiler, Guinness, against a former boyfriend who claims the dog is his. Newman, who shares his office with his Chihuahua, said he could make more money in other areas but gets greater satisfaction from helping animals.

Watching Guinness romp happily in the backyard with his mate Roxie makes it all worthwhile, he said.

“Who gets the chair or the toaster [in divorce cases] is not nearly as fulfilling to me as it is to be a voice for animals who don’t generally have a voice under the law,” he said. “Animals are much more grateful for what they get.”

The success of Newman and other lawyers is beginning to worry those who fear that it could eventually result in higher legal status for all animals, including those used for research and food production.

Such a change holds dire implications, they say. Scientists contend medical research would be compromised if researchers were unable to obtain animals for experiments--a point animal law advocates dispute. Veterinarians believe animal health care costs would skyrocket under an avalanche of litigation. Ironically, they say, animals would suffer because owners would not be able to afford treatment.

O’Brien, the veterinary insurance executive, said his industry has noticed an increase in the number of pet owners demanding emotional-distress damages. The increased litigation has not translated into higher insurance fees, but he said the industry is on guard.

“If some court [one day] awarded $5 million for pain and suffering for a dead kitty, someone is going to have to pay for that,” said O’Brien, whose firm insures the California Veterinary Medical Assn.

‘Humans Have to Have Primacy’

The number of veterinarians in California has increased by nearly 20% over the last decade, and with it has come greater scrutiny from the public. Some animal rights activists are now urging state regulators to require that any disciplinary actions be posted in doctors’ offices. The state last year took action--ranging from citations to license revocations--against less than 100 of nearly 10,000 veterinarians.

These activists argue that rising damage judgments against veterinarians actually works to improve pet care because it forces doctors to be more careful in the way they treat pets.

But beyond the practical arguments over finances, some ethicists fear animal law will ultimately provide more rights to animals at the expense of humanity.

“Humans have to have primacy,” said Richard L. Cupp Jr., a professor at Pepperdine University School of Law. “I’m concerned that if we start allowing, through the courts, people to think of the loss of a pet as equivalent to the loss of a human being, that will contribute to erosion of the primacy of human beings.”

Animal law experts, however, said the point of their efforts is not to have the law view animals and humans equally but to honor the special kinship they share.

“No one in the animal rights or advocacy movement is suggesting that there’s any recognition of animals’ interests as equal to humans’ interests,” said Taimie Bryant, a UCLA animal law professor, “but that people’s relationships with companion animals are closer . . . than they used to be.”