• High court upholds pet ruling
    By PETER HIRSCHFELD VERMONT PRESS BUREAU | May 25,2009
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    When Susan Goodby lost two beloved "members of the family" to alleged physician malpractice in 2002, the Craftsbury woman and her husband asked a superior court judge to award them damages for loss of companionship and emotional distress caused by the purported negligence.

    Vermont's civil courts have long awarded monetary damages to families impacted by doctor error. Goodby's case, however, warranted no such recompense, according to a Lamoille County judge, whose ruling was upheld recently by the Vermont Supreme Court.

    That's because the "family members" in question were cats, not humans. And Vermont laws, the unanimous Supreme Court ruling said, do not permit financial compensation for loss of companionship or emotional distress brought on by the negligent death of an animal, however well loved.

    Pet owners are free to sue for damages in the negligent or intentional killing of a pet, but courts now assess the animals' economic value as it would a piece of inanimate property. The Goodby decision spotlights the latest development in a burgeoning effort to redefine the legal status of domestic pets.

    Steve Wise, an animal-rights lawyer who represented the Goodbys, said the time has come for courts to recognize the intrinsic value of pets in modern society.

    "When you act in a negligent way, and you kill someone's companion animal, the loss the person has suffered is not the market value of the animal," said Wise, a Florida lawyer who teaches animal-rights law at Vermont Law School. "… What you've lost is the relationship between you and the animal, and that's not simply like losing inanimate property."

    Susan Goodby's own emotional distress underscores the point. More than six years after her cats, Obi and Jellicle, died from toxic doses of high-blood pressure medication given inadvertently to the felines, she still struggles to talk about the event.

    "I considered suicide," Goodby said this week. "People say pets are like members of the family. Well, no – they are members of the family."

    Wise, among the first lawyers to enter the animal-rights field more than three decades ago, has authored three books making the case for greater animal rights. Tort laws crafted decades ago, he said, haven't kept pace with the evolving role of pets in their owners' lives.

    "Study after study after study shows how the deaths of companion animals often affect owners in much the same way as the death of a family member," Wise said.

    That certainly held true for Goodby.

    "I definitely wouldn't want to have to choose between a child and my cat," she said. "… This is an animal that lives with me every single moment."

    The Vermont Supreme Court has in previous rulings carved out a special legal niche for animals. In the 1997 case, Morgan vs. Kroupa, the court found that the worth or value of a pet "is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions."

    In a 1999 Vermont Supreme Court case involving a lost dog, the court affirmed its 1997 opinion, saying a dog is "an inherently social creature whose value derives from the animal's relationship with its human companions." And in a landmark 1979 decision in New York that overrode precedent, a judge said "a pet is not just a thing, but occupies a special place between a person and piece of personal property.

    Wise said that in the Goodby case, he attempted to convince Vermont judges to revise common law to better reflect the 21st century mores they seemed to embrace in prior rulings. Supreme Court justices, however, were unwilling to make the legal leap Wise and his clients sought.

    "Plaintiffs … urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin," the court wrote in its May 9 ruling.

    But the justices note that the Wrongful Death Act excludes recovery for the loss of many close relatives, including grandparents, nieces or nephews.

    "Viewed from this perspective, plaintiffs request a judicial expansion of law to recover for loss of a pet what the law does not allow for loss of a broad variety of critically loved human beings," the court wrote. "Whether the familial quality of companionship between humans and their pets is relatively new or ancient, plaintiffs seek a dramatic alteration to the law."

    Dr. Kent McClure, with the Animal Health Institute, a trade group for pharmaceutical companies and the veterinary industry, said a decision to award damages for loss of animal companionship would adversely impact pet care generally.

    The consequent rise in malpractice insurance, according to McClure, would push veterinary services beyond the financial reach of many pet owners.

    "Our interest is to make sure there's affordable and acceptable health care for animals, and we think the radical change that was asked for would actually harm people's ability to provide that care for them," said McClure, whose organization filed a friend-of-the-court brief in the Goodby case.

    In recent years, courts in almost 30 states have declined to compensate pet owners for emotional distress in their animals' deaths. The Animal Health Institute said the rulings are well in line with public opinion, citing a 2007 Gallup poll that found 63 percent of Americans think pet owners should be entitled only to economic damages – not pain and suffering.

    Sen. Vince Illuzzi, an Essex County Republican who filed an amicus brief in the case on behalf of the Animal Legal Defense Fund, said organizations like the AHI are trying to abrogate the responsibility veterinarians bear for their negligent behavior.

    "Small animal veterinarians have made their living by encouraging pet owners to spend tens of thousands of dollars in care on their pets, yet when it comes to them making a mistake, veterinarians argue that a family pet isn't worth more than an old pair of shoes that should be thrown out with the trash," Illuzzi said.

    Both Illuzzi and Wise said there's no reliable evidence to support the AHI claim that more expansive legal considerations for domestic pets would spike veterinary costs.

    "It's an evolving body of law, and some of us think that it should be brought up to current societal stands and beliefs," Illuzzi said.

    The Vermont Supreme Court indicated in its ruling that the question of emotional-distress damages is best left to the General Assembly, not the courts.

    "We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals … should be undertaken outside of the legislative arena," the court wrote.

    Illuzzi said the Legislature may well be an appropriate venue to address the issue, however lawmakers have thus far proven disinclined to take up such legislation.

    "Anytime we talk about animal welfare legislation at the Statehouse, it either becomes a joke or something which other people don't want to spend any time on," Illuzzi said. "It just hasn't risen to the level where people want to take serious look at."

    For Goodby, the court decision marked a disheartening end to a years-long legal battle.

    "I suppose when it started I wanted to punish people, and I've been aghast throughout the whole thing frankly at the veterinary profession," she said. "I may be rabid on the subject … but I just think animals should have the same rights we do."

    The issue is far from closed. Wise said animal-rights lawyers around the nation will continue to push the issue in courts and legislative arenas. And the Vermont Supreme Court is expected to see a similar case in the relatively near future.

    A Washington County civil suit – filed by a Maryland couple seeking loss-of-companionship damages in the malicious killing of their dog – was denied recently by a superior court judge. The plaintiffs, according to their lawyer, plan to appeal the verdict in the state's highest court.
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