Courts Try to Define the Value of Losing a Pet

When I was young, I was too busy working on going to school to have time for pets.

But about three years ago our family bought a beautiful Bernese Mountain puppy.

Bella is the most wonderful dog. She greets me with what appears to be a smile, her tail wagging furiously. She loves everyone unconditionally. I can’t imagine losing her.

So, it is with a different heart now that I read stories of people losing their dogs and cats to poisoned pet food. At one time, I thought it might have been a bit of an overreaction, but because we have Bella, I have more empathy now for these families.

I read in the paper that one woman can’t live with the notion that she poisoned her pet, Samantha, who died of kidney failure. She buried her next to the empty packets of Special Kitty food, the cat’s favorite treat, then discovered that the lot numbers on the pouches still at home matched those on the recall list.

Lawyers have received thousands of inquiries from owners about their pets, and the thousands of claims are expected to become a consolidated class action. What appears to have really upset the public at large is not only the contamination of the pet food with potentially lethal ingredients, but also the alleged delay by the manufacturer in issuing a recall.

A number of lawsuits have been filed, including some in Illinois. A lawsuit was filed in federal court in Chicago on behalf of Dawn Majerczyk of Chicago whose nine-year-old cat, Phoenix, had to be euthanized after the poison in his Special Kitty Select Cuts allegedly caused his kidneys to shut down on March 17, a day after the maker of the cat food announced the recall.

The complaint alleges that his owner and her two children were devastated by his death. The lawsuit alleges that Menu Foods, knew before the recall that its products could kill animals.

Chicago attorneys, Blim & Edelson are among a dozen firms representing in a class action thousands of people who lost pets in the recall. They have filed claims alleging breach of warranty, negligence, consumer fraud, and spoliation of evidence, but they say they are not ruling out other theories of recovery as well, including allegations of infliction of emotional distress.

Illinois law provides for emotional distress damages, as well as punitive damages not to exceed $25,000 for each act of abuse or neglect, under the Humane Care for Animals Act (510 ILCS 70/16.3 (2006)).

But how does one put a price on such a valuable part of one’s life? Generally, Illinois law rejected pets or animals as products, Whitmer v. Schneble, 29 Ill.App.3d 659, 331 N.E.2d 115 (2d Dist. 1975), and considered them personal property, but the new cases likely will turn on a somewhat new legal theory: special property.

Just as plaintiffs have argued that the intrinsic value of certain items are worth more than their market value, like a treasured family photo, lawyers are looking to extend this notion to family pets.

Although courts have recognized that "there is no formula for computing the value of the pet to her owner," Anzalone v. Kragness, 356 Ill.App.3d 365, 372, 826 N.E.2d 472 (1^st Dist.2005), a number of factors are considered, including loss of companionship, in some jurisdictions.

Besides awarding the market or actual value of an animal, courts in Alaska, Minnesota, and Missouri have allowed punitive damages for the killing of a pet, which the class-action plaintiffs are also requesting.

At a recent trial in Chicago, a veterinarian was sued for negligently killing a pet. Amy Breyer, an animal law attorney, tendered the following damages instruction to the jury, a modified I.P.I. Civil No. 30.01, which takes into account the special property value to the plaintiff: "If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the wrongful conduct of the defendants.

"The damage to property is determined by the actual value to the owner immediately before the occurrence. This may include loss of companionship and loss of sentimental value. You may consider the length of time the plaintiff owned the property before it became damaged. You may exclude the purchase price as a basis for valuation, if that sum does not really reflect the value of the destroyed property."

Studies have shown that many family pets are treated like family members, and that the loss of such a pet has a significant impact on human family members.

Besides living in the home, pets get Christmas presents, the family celebrates the animals’ birthdays, they are taken on vacations or enjoy pet sitters, they are in the middle of family photos, and they get the best medical care.

A 7^th Circuit case considered the claim of whether a police dog, named as a defendant in a lawsuit was a person. Dye v. Wargo, 253 F.3d 296, 300 (7^th Cir.2001).

Using the dictionary definition, the court found that a dog does not qualify as a person, for reasons including the problem of appointment of counsel, service of process, exercising the right to self-representation, claiming qualified immunity, and collecting damages. Id., at 299. (Yes, the court asked those questions, as well as whether the dog could be judged as having acted reasonably!)

Although the court considered the issue somewhat whimsically, some critics have noted that pets could have been designated personhood status for very limited purposes, just as courts have done for corporations and associations. Rebecca J. Huss, "Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status of Companion Animals," 86 Marq. L. Rev. 47, 77, Fall 2002.

Sorrow and grief are difficult to quantify. Certainly the replacement cost of a pet doesn’t come close to equaling what family members lost, even when the training, medical treatment, and other costs associated with its care and included in the calculation of damages.

(What is more upsetting, however, is the Illinois Senate’s refusal to recognize grief and sorrow for the loss of a person, while recognizing it for the loss of a pet. I should note that House Bill 1798 passed in April, but the Illinois Senate, at this writing, has yet to approve a bill.)

Recent polls indicate that some 62 percent of U.S. households include pets. Americans spend billions of dollars on the pet industry. It certainly has become part of our culture to recognize the real grief involved in losing a pet -- animal rights activists can attest to that. As the litigation over the poisoned animals makes its way through the courts, we will see if every dog has its day.