Most people consider their pet priceless. But in civil law, at least, pets are usually seen as property -- akin to a toaster or TV set -- worth only their market value. Now, amid the incidences of tainted pet food tied to animal deaths and the subsequent rash of lawsuits against pet-food makers, there's a push to put a higher value on a pet's life.
Lawyers, animal-rights activists and pet owners are arguing that most state laws dealing with pets are outmoded and fail to consider that pets play the role of companions in today's society. They say pet owners whose animal is injured or killed should receive compensation not only for vet bills and a replacement animal -- but for emotional distress as well. While legal experts say big payouts for emotional damages are unlikely in the pet-food cases, the lawsuits and large number of pets affected could accelerate a growing trend to give pets more recognition under the law.
The litigation could be "a first step towards expanding liability when it comes to having to pay emotional damages for loss of specific animal," says James Kainen, associate professor of property law at Fordham University School of Law.
More than 50 cases seeking class-action status have been filed in recent weeks in response to pet illnesses and deaths linked to tainted pet food. Concerns began in March, when Ontario-based Menu Foods Inc. announced a widespread pet food recall. The U.S. Food and Drug Administration found that wheat gluten, imported from China and used as a protein source and binding agent in the products, was contaminated with melamine, an industrial substance with no approved use in food. The agency has also found melamine in pet food containing rice protein concentrate, and recently began testing animal feed and human-food additives for melamine contamination.
Recalls have now spread to more than 100 brands. The FDA has said at least 16 animal deaths resulted from the tainted food, but said many more pets may have been affected. A spokeswoman for Banfield, The Pet Hospital, a national chain of veterinary hospitals, said it has confirmed six additional deaths. This week, Menu Foods filed suit against its supplier of the wheat gluten, ChemNutra Inc. of Las Vegas, alleging breach of contract and other violations. ChemNutra said it had no comment on the suit.
Even before the recent pet-food scare, legal experts say there has been a growing legal recognition of pets' value. Today 42 states have made cruelty to animals a felony, compared with seven states that had felony provisions before 1994, according to the Animal Legal Defense Fund. In 2000, Tennessee created a statute allowing noneconomic damages if a pet is killed or injured by negligence, though caps them at $5,000. And recent civil judgments have nodded to people's emotional attachment to their pets: A default judgment last year in Washington state awarded a man $50,000 for the intrinsic value of his cat, Milton, and an additional $25,000 for emotional distress after Milton was killed by a neighboring dog that had a history of aggressive behavior.
Animal-rights groups say that most animal law is based on a long-ago era when pets didn't have the vaunted role they now enjoy in many households -- and when Americans didn't spend nearly as much money on them. In 2006, Americans spent nearly $39 billion on food, veterinary care, supplies and other services for their pets, up 35 percent from 2001, according to the American Pet Products Manufacturers Association, an industry group in Greenwich, Conn.
Yet except in the case of extreme cruelty or malice, owners who have lost a pet through some type of negligence usually recover little more than the animal's market value in civil suits. The market value ranges anywhere from $10 to several hundred dollars, depending on the animal's breed, training and other factors. This doesn't adequately reflect the emotional value pets have for people, says Joyce Tischler, founding director of the Animal League Defense Fund, an advocacy group in Cotati, Calif.
The league has drafted a brief to be filed with the lawsuits that argues, among other things, that "human beings form intense emotional bonds with companion animals and are very likely to feel genuine and serious emotional distress when those animals are harmed."
One such person is Pamela Newman, a 55-year-old former factory worker who lives alone. When her cat ate some of the food that had been recalled, Newman said the animal began to waste away from kidney failure, dropping 18 pounds in a week and losing its hair. Newman joined a class-action lawsuit and believes she should receive more than just money for vet bills and the market value of the cat if it dies. "She's not a pet, she's family," she says. "She's everything to me."
The suit seeking to represent Newman and several hundred other pet owners against Menu Foods alleges, among other things, fraud and negligence, and seeks economic and punitive damages as well as damages for emotional suffering, says lead counsel and Chicago attorney Jay Edelson. He points out that in some cases, the law recognizes some property -- such as a family heirloom -- as having more than just market value, and he will argue the same for pets. Menu Foods declined to comment on the lawsuits.
Most civil judgments still don't award emotional damages when a pet is injured or killed. A more typical case is that of a pet owner who sued a groomer in Austin, Texas, in 2003, after her miniature schnauzer escaped from the facility and was run over by traffic. She was initially awarded $10,000 for mental anguish and distress and $10,000 for loss of companionship in a default judgment, but the award was reversed by an appellate court, giving the owner just $500 for the replacement value of the dog, as well as awards for its training and attorney fees.
"The law is going through this painful transition in a patchwork fashion," says Kristina Hancock, chairwoman of Animal Law Committee of the American Bar Association's Tort, Trial and Insurance Practice Section. "A lot of judges are treating (pets) in a no-man's land in between property and humans."
Legal experts say it is unlikely plaintiffs will get large amounts of money in emotional damages in the class-action suits, due to slim precedence and the difficulties of assessing the emotional damage of individual clients. The economic damages, however, could be doubled or tripled if conduct is found to be egregious, they say.
While animal-rights advocates and pet owners say the law shouldn't put animals on par with humans, they are calling for some middle ground.
"Pets are not the equivalent of a child -- I understand that," says Ben DeLong, who says his cat suffered kidney problems due to tainted pet food and died last month. "But there is a significant emotional investment my wife and I have in our animals."