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					          Animal Law with Bruce Wagman, Fall 2006 by Trevor E. McCardle

WHAT IS THE CAUSE OF ACTION! Should always be the thing you establish first.

Civil rights are most analogous human laws to animal law

What is an Animal?
   Knox v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, MA, 1981
      – A carnival concession operator intended to pass out live goldfish as a prize for
      tossing ping pong balls into a goldfish bowl. This case was brought to prevent
      him from doing so.
          o (R) No person shall offer or give away any live animal as a prize or an
               award in a game, contest or tournament involving skill or chance.
          o (I) Is a goldfish an animal?
          o (H) The term “animal” applies to goldfish. In Commonwealth v. Turner,
               the court determined that an animal “includes all irrational beings.”
   Lock v. Falkenstine, OK, 1963 – When a statute declares that it is a misdemeanor
      for anyone to maliciously encourage animals to fight, the court holds that the
      statute is sufficiently nebulous that a person of ordinary intelligence would be
      unable to ascertain whether or not cockfighting is illegal. The judge is a moron –
      see “stupid” p. 8.
   State of Kansas v. Claiborne, KS, 1973 – Gamecocks are not animals.
   State v. Buford, NM, 1958 – Gamecocks are animals and fall under the purview of
      NM’s anti-cruelty statute, but cockfighting is not cruel. As of 2005, Buford NM
      has not statute prohibiting cockfighting.
   State v. Cleve, NM, 1999 – The statute that outlaws cruelty to “any animal” only
      applies to domesticated animals and wild animals in captivity. Prior legislation
      concerning only livestock and domesticated animals frequently used the phrase
      “any animal.” Thus, capturing a wild deer in a snare and permitting it to die of
      starvation is okay.
          o In this case, the court appears to be concerned with property and
               protecting certain activities like hunting or pest control.
          o What is the policy behind the cruelty laws, why do we have laws that
               protect animals?
                    Human concern for animals
                    Society’s members have an obligation to be responsible for the
                        animals they have chosen to take on as pets
                    Court in NM is concerned that to make us responsible for wild
                        animals would equate to a good Samaritan law for animals.
   Animal Legal Defense Fund v. ESPY, DC Cir. 1994 – When animal rights groups
      attempt to sue under the Administrative Procedures Act (APA), the court holds
      that the plaintiffs are unable to demonstrate constitutional standing and the
      statutory right to judicial review.
          o (R) To secure constitutional standing, a plaintiff must show injury in fact
               that is fairly traceable to ∆’s actions and is redressable by the requested
          o Bottom of p. 15 has a definition of animal – it includes a comment,
              “Secretary may determine” which makes it clear that the secretary has
              the power to determine what an animal is with respect to the statute. In
              this case, the Secretary was being sued for exempting birds, rats, and mice
              from the animal cruelty statute.
          o Following this case, the “Farm Security and Rural Investment Act of
              2002” was passed with a provision that modified the Animal Welfare Act
              (AWA) to exclude birds, rats, mice used for research, and horses not used
              for research purposes.
      California has an anti-vivisection statute that applies to schools that defines
       animal as “any living organism of the kingdom animalia.”

Holcomb v. Van Zylen, MI, 1913 – (I) is a turkey an animal? (H) yes.
    Livestock are valuable, and courts often uphold the rights of those who lose
      property in the form of livestock.
    The court could have failed to include turkeys.
    (Hypo) what if Van Zylen had wild turkeys on his land? Domestic? No – not
      feeding them.

When is an Animal Domestic?
Massini PA – ∆ shot and killed neighbors cat. (H) Cat not a domestic animal, and have no
value. The statute does not single out cats as domestic, therefore they are not domestic.

Comella PA – (H) Dogs are domestic animals. ∆ guilty of harboring a dangerous dog. ∆
argues that dogs are not domestic animals, so ∆ not guilty for damage to neighbors dog.
Court disagrees and declares that dogs are domestic animals.

McKinney, AK – dog is not a domestic animal

Morgan, VT – dog is not a beast, so you can’t recover it from me if you lose it and I find
it. A beast is property, but a dog is not a beast so a dog is not property.

Thurston, ME – Cat = domestic animal

Animal cases tend to vary by location certain types of locations tend to hold one way
while other locations hold another. They tend to vary based on location –

Speciesism = racism toward animals. Humans are better than all other species.
    Great Ape project – an effort to get all five great apes (including people)
       distinguished from all other animals (Chimps, Bonobos, Orangutans, humans,

Bueckner v. Hamel – There is a law against chasing down and hurting animals, but when
a dog chases down and kills a deer, the dog’s owner isn’t liable since the statute to protect
animals from dogs was written to protect domestic livestock (i.e. the property) of others.
City of Rolling Meadows v. Kyle, IL 1986 – Yondi, a house monkey, was an “illegal pet”
under a statute outlawing exotic animals, but council argued that the animal was
domesticated, used the toilet, traveled around the world on a plane with the owners.
Didn’t bite, well behaved.
     (H) Yondi is a domesticated animal. The owner has provided ample evidence that
        Yondi is not harmful.
     (Wagman emphasized) The Court here is exceptional because it doesn’t simply
        view the animal as an animal of a particular species. The court doesn’t say “Yondi
        is a monkey and monkeys aren’t domesticated.” The court looked at Yondi and
        based its decision purely on the animal in the courtroom. It viewed the animal as
        an individual.

Gallick v. Barto, PA, 1993 – (H) Ferrets are wild. This doffers from Yondi case because
the court doesn’t look at the Ferrets. The court here could have said, “just because a dog
bites someone doesn’t make it wild, perhaps ferrets are the same.” Animals that are
traditionally wild are often viewed as wild by the courts. The Yondi case was an

         Animals as Property and Damages Available for Injury to Animals

What is Property? Ownership?
   A bundle of rights
   R – nonhuman animals are classified as property in all fifty states.
   The best way to advance animal rights is to work within the system – accept the
       property doctrine (that animals are property) and work within it. There is a
       continuum from property to personhood, and animals lie somewhere along it.
       Freedom from unwanted intervention are what animal rights activists would like
       to see for animals. Terms we can use are
           o Quasi-property
           o Persons minus
           o Persons plus

Attitudes about property are shaped by the following perspectives.
     Historical
     Legal
     Religious
     Economic
     Cultural

Favre’s theory of nonhuman animal law – “…a legal paradigm in which a nonhuman
animal has equitable self-ownership and, thus, status within the legal system, while a
human retains legal title to the animal in question.”

Pierson v. Post – (R) Ownership of an animal commences upon deprivation of its liberty.
Rabideau v. City of Racine, WI, 2001 – When Rabideau’s dog (Dakota) was shot and
killed by a police officer, she sued the city for damages for intentional and negligent
infliction of emotional distress. The lower court held that Rabideau’s claim was frivolous
and awarded summary judgment to the ∆.
     (H) Dakota does not fall within the class of individuals for which one may recover
         for negligent infliction of emotional distress.
             o Since there is not evidence that the cop acted with the intent of causing
                 Rabideau emotional distress, she can’t recover for emotional distress
             o A liberal reading of Rabideau’s complaint reveals a claim for property
                 damage, she can recover for that.
     Court read the property claim into Rabideau’s complaint because it wanted to find
         a way to compensate her.

Emotional Distress damages are typically awarded for negligently caused injury or death.
     Key to animal law - Emotional damages are available nationwide against
        tortfeasors who intentionally damage property (pets) to cause harm to its owner.
     Typical intentional torts are
     conversion (permanent taking of property)
     trespass to chattel
IMPORTANT – in no cases has a court awarded damages for the injury to an animal.
Damages have only been awarded to an owner for the suffering the owner underwent as a
consequence of the damages suffered by the dog. Types of damages typically awarded for
pet injuries/death:
     Market value = replacement costs – Improvements to property can be used to
        increase damages:
             o Professional dog training
             o Vet fees typically aren’t awarded b/c they are considered maintenance.
        If you have a very expensive dog, suing for market value may be the best option.
     Diminution in value – Sometimes this is permitted even when it costs more to
        repair the dog than it would be to replace the dog (recovery for inanimate property
        is limited to market value). Hyland v. Borras, NJ, 1998.
In some circumstances, the following awards may be recovered when a pet is harmed:
     Heirloom recovery theory permits emotional damage awards for negligently
        damaged property that is worthless to everyone except the owner. The enumerated
        items above can’t be recovered for, but this is a viable alternative theory. In CA if
        you can’t establish any market value, consider this.
     Actual value to owner (a.k.a. special or peculiar value) – Is a way of getting
        around the bar on emotional damage recovery. Factors considered when
        calculating these damages are:
             o age
             o breed
             o relationship
             o protection (guard dog?)
             o special training
             o activities
           o   duration of relationship
           o   $ value
           o   species
           o   peace of mind – an owner gets some psychological health due to dog’s
       Refrain from using language that may cause the court to construe the enumerated
       factors to be considered as a form of emotional damages. They are not emotional
           o (R) CA – Civ. Code 3355 permits special damages when:
                    the property has a market value,
                    has special value to the owner, and
                    the ∆ knows of the peculiar value
               Evidence for establishing peculiar value comes exclusively from the
               owner; calculate it according to above enumerated items.
           o California Civil Code § 3340 (enacted 1872) provides that exemplary
               damages are permissible for wrongful injuries to animals (that are
               property) that are committed willfully or by gross negligence, in disregard
               of humanity.

    Katsaris v. Cook, CA, 1986 - A shepherd shot π’s two dogs while tending a herd
       on his employers land. When π requested information about his dogs from the
       shepherd’s employer (∆), she denied having any knowledge of π’s dogs’ fates. A
       CA statute provides an exemption from criminal or civil liability for a property’s
       caretaker who kills or seizes dogs entering property where livestock are present.
           o (R) The privilege extended by the statute exempting livestock owners
                from liability for actions taken to protect their livestock does not extend
                to cover behavior that goes beyond what is necessary to protect the
           o (R) To recover for intentional infliction of emotional distress, a π must
                show that the ∆’s behavior was
                     extreme and outrageous,
                     intentional or reckless,
                     the actual or proximate cause of π’s distress and that
                     he (π) actually suffered from severe distress
           o (H) ∆’s lie about the death of π’s dogs was not covered under the
               exemption provided by the statute. The lower court erred by granting
               summary judgment on the issue of emotional distress with respect to ∆’s
               post shooting conduct.

HI provides an exception to the general rule:
    Campbell v. Animal Quarantine Station, HI, 1981 – When a family dog is killed
       due to the negligence of a quarantine station on HI, the family is permitted to
       recover emotional damages b/c HI is a state that permits the award of emotional
       damages when property is damaged – dog = property.
           o HI statute now bans claims for emotional distress for property damage;
             hasn’t yet been tested on an animal claim.

TN statute (T-Bo Act, p. 699) permits up to $4000 recovery for loss of companionship
when an animal dies. IL has a similar statute. Limitations are:
    $5000 = max recovery
    § e provides immunity for government agencies, veterinarians, livestock

New York
   (R) Damages in excess of animal’s market value not okay (animals are just
         o Dejoy v. Niagara Mohawk Power Corp., NY, 2004 – An animal owner
            may not recover damages for loss of companionship.
         o Whitmore v. Niagara Mohawk Power Corp., NY, 2004 – An animal owner
            may not recover damages for loss of companionship.
         o Lewis v. Didonna, NY, 2002 – Appellate court overturned lower courts
            decision to permit π to introduce proof of loss of companionship on the
            issue of damages. (disregards holdings in Corso and Brousseau)
         o Johnson v. Douglas, NY, 2001 – (H) “…pet owners cannot recover for
            emotional distress based upon an alleged negligent or malicious
            destruction of a dog, which is deemed personal property. The extension of
            such thinking would permit recovery for mental distress caused by the
            malicious or negligent destruction of other personal property…”
         o Gluckman v. American Airlines, Inc., NY, 1994 – (H) Corso is a
            misstatement of the law and is therefore not precedent. Brousseau used
            loss of companionship as a factor to calculate the value of a pet to an
            owner, but it did not hold that the loss of such companionship alone
            sustains a cause of action.
         o Young v. Delta Airlines, NY, 1980 – When π’s dog died during transport,
            π was not permitted to recover for mental suffering and emotional
            disturbance because recovery under those theories is not permitted for loss
            of property.
   (old R) Damages in excess of market value of pet okay when tortfeasor
     negligently destroys an animal:
         o Brousseau v. Rosenthal, NY, 1980 – (H) In devising a formula for
            calculating a dog’s actual value to its owner, it holds that “loss of
            companionship must be considered as an element of the dog’s actual value
            to this owner…The dog’s age is not a depreciation factor…”
                 (R) Loss of companionship is not an independent recovery theory,
                     but it is an element in calculating the dog’s value to its owner.
         o Corso v. Crawford Dog and Cat Hospital, Inc., NY, 1979 (most liberal
            case I’ve read so far, really recognizes animals as more than just propertyv
            – but not followed) – (H) Court “overrules prior precedent and holds that a
            pet is not just a thing but occupies a special place somewhere between a
            person and a piece of personal property.” The negligent destruction of a
               dog’s body gives rise to an actionable tort. The π is entitled to damages
               beyond the market value of the dog.

    Kennedy v. Byas Animal Hospital, FL, 2004 –
           o (R) Emotional distress damages are not permissible when a pet is
               negligently killed. The “impact rule” prevents recovery when the π
               manifests no physical symptoms of emotional distress unless the
               tortfeasor’s victim was π’s family member or:
                    emotional injury was clearly foreseeable,
                    likely to be significant,
                    the issue of causation is straightforward, and
                    a flood of fictitious litigation won’t ensue via the exception.
               The exceptions to the impact rule listed above are not to be extended to
               malpractice (negligence) cases involving animals.
           o (R) Animals are nothing more than property.
           o (R) Though negligence is not sufficient to permit recovery of emotional
               damages when a pet is negligently killed, they are permissible when the
               tortfeasor behaves maliciously as in La Porte (below).
    Johnson v. Wander, 1992 – Punitive damages and damages for emotional distress
       are permissible per Knowles.
    Knowles Animal Hospital v. Wills, 1978 – Jury permitted to consider π’s mental
       suffering when assessing damages for injury to π’s pet.
    La Porte v. Associated Independents, Inc., FL. 1964 – When a trash man amuses
       himself by throwing a garbage can at a dog and killing it, the owner is permitted
       to present the element of mental suffering to the jury for consideration when
       tabulating damages since tortfeasor’s behavior was malicious.
           o (R) No recovery for mental pain is permitted when a π doesn’t manifest
               physical symptoms unless the tortfeasor’s behavior is malicious (as it was

    Liotta v. Segur, CT, 2004 – (R) A negligent ∆ is liable when he perceives both (1)
      a risk of emotional distress in the π and (2) an awareness that the π might, because
      of the emotional distress, suffer illness or bodily harm.
    Coston v. Reardon, CT, 2001 – (R) Bystander emotional distress is only
      permissible when the victim has a cause of action and the bystander is a close
      relative of the victim. An animal can’t have a cause of action, so a pet owner can’t
      collect for bystander emotional distress.

    Ammon v. Welty, KY, 2002 – A warden killed a dog by shooting it in the head
      before the expiration of the 7 day waiting period. πs seek damages for loss of
      companionship, emotional distress, and punitive damages.
          o (R) A dog is property, not a family member.
           o (R) Loss of love and affection resulting from destruction to personal
               property is not compensable.
           o (R) A π can recover for emotional distress when ∆’s conduct is utterly
               intolerable in a civilized community and the ∆ intends to cause distress to
               the pets owner.
           o (R) Punitive damages are not recoverable when a ∆ harms a pet.
           o The fact that an animal can be destroyed distinguishes it from other forms
               of property, the destruction of which is not state sanctioned.
      Burgess v. Taylor, KY, 2001 – (R) Intentional infliction of emotional distress (i.e.
       “outrage”) is a recovery theory based on the offender’s conduct, not on the subject
       of said conduct. It makes no difference if the tortfeasor’s target was property or
       person, it is the manner in which the tortfeasor behaved that matters.
           o IIED (intentionally inflicted emotional distress) is a really good claim so
               long as you can demonstrate that the tortfeasor’s action was engaged in
               with the intent of harming the pet owner.

      Jankoski v. Preiser Animal Hospital Ltd., IL, 1987 – (R) Where the object
         destroyed has no market value, the measure of damages to be applied is the actual
         value of the object to the owner; this may include some element of sentimental
         value, but there is no independent cause of action for loss of companionship.

    Oberschlake v. Veterinary Ass. Animal Hosp., OH, 2003 – When a veterinarian
     attempts to spay a dog (Poopie) who had previously been neutered, the owners
     brought a suit on behalf of the dog for the injuries it sustained (dog lived) due to
     veterinary malpractice and they also sought compensatory damages for veterinary
     malpractice, NIED, and loss of companionship.
         o (R) NIED and loss of companionship are not awarded for property
             damage, but
         o (R) dogs are property.
         o (R) Damages for loss of property are limited to the difference between the
             property’s fair market value before and immediately after the loss.
         o (R) Non-economic damages are not awardable for injury to companion
         o (R) The standard of value to the owner (instead of the market value) may
             be used in exceptional circumstances (e.g. when an animal is a pedigree
             for breeding purposes). Poopie did not have a unique pedigree nor was she
             used for breeding purposes.
         o (R) A dog cannot recover for emotional distress.

New Jersey
   Hyland v. Borras, NJ, 1998 – When a 10 yr. old Shih Tzu was damaged by ∆’s
      dog, the court permitted the amount damages to equal the cost of restoring the
      harmed animal to its original condition ($2500) instead of the dog’s fair market
      value ($500). The court considered the type of property at issue.
    Despite holding in Lockett (appellate level) some trial courts in OR have
      permitted claims for loss of companionship to go forward in animal cases.
          o Smith v. Cook, 2004 – (H) the tort for loss of companionship does exist in
              Oregon and can be considered by a court.
          o Quick v. Inavale Vet. Clinic, 2004 – Denied motion to dismiss loss of
              companionship claim.
                    There may be a conflict between the Lockett holding and these, but
                      perhaps not if these cases only permitted the issue of loss of
                      companionship to be litigated because the damage in these cases
                      may have been intentionally inflicted on the animal.
    Lockett v. Hill, OR, 2002 - ∆’s two pit bulls killed π’s cat on π’s property.
          o (R) Emotional distress damages are not available for loss of a pet’s
          o π's “constitutive property” NIED recovery theory based on such property
              (a pet) being a central aspect of the owner’s sense of identity and that a
              sense of identity is a legally protected right the violation of which entitles
              the victim to recover for damages is rejected outright.
          o (C) Trial court award of $1000 for compensatory damages is sustained.
    Green v. Leckington, OR, 1951 - ∆ shot and killed a dog on his property while it
      was chasing his chickens. π's witness put the fair market value of the dog at $250.
      π paid $200 for the dog two months before the killing. π testified that the dog’s
      value to him was $1000.
          o (R) If a wrongfully killed dog has no market value, the owner may prove
              its special value to him by showing its qualities, characteristics and
              pedigree, and may offer the opinions of witnesses who are familiar with
              such qualities.
          o (C) Since π’s evidence revealed that the dog did have a market value of
              $250, that is the proper award for the damage inflicted.

Nationwide, πs who predicate their emotional distress (or other) claims on property
theories (trespass to chattel, conversion) do better than π’s who put forth recovery
theories based purely on emotional distress and NIED.

Pennsylvania – When a ∆ acts w/ malice/intent, emotional damages may be recoverable.
    Negligent action by a ∆ is probably not recoverable under PA law. Daughen v.
      Fox, PA, 1988. Intentional behavior on the part of the ∆, however…
         o Banasczek v. Kowalski, PA, 1979 – (H) π may advance a recovery theory
             based on emotional distress since ∆’s shooting of the π’s dogs was done
             intentionally and maliciously.

3rd Cir. – Brown v Muhlenberg Township, 3rd. Cir. 2001 – A claim of emotional distress
is permissible when the ∆ acts with intent/malice.

      Petco v. Schuster, TX, 2004 – Since π’s evidence reveals a market value for her
       dog, she may not recover an award exceeding that value.
           o (R) Mental anguish, counseling costs, “intrinsic value” loss of
              companionship, and lost wages are not compensable.
           o (R) Dogs are property.
           o (R) Proper damages for the loss of a dog is
                    its market value, or
                    if it has no market value then the value may be ascertained by
                       reference to the usefulness and services of the dog.
                            The pecuniary value of a dog, if not set by market value,
                              must be based solely upon the economic value derived
                              from the dog’s usefulness and services, not value attributed
                              to companionship or other sentimental considerations.
           o (R) If a showing of ill will, animus, or a desire to harm the π personally
              can be shown, damages for mental anguish due to property destruction are
      Beuckner v. Hamel, TX, 1994 – Punitive and actual damages were awarded when
       a hunter killed π’s two dogs.

   (R) Emotional distress damages are recoverable when a ∆ maliciously harms π’s
      pet. Womack v. Reardon, WA, 2006.
   (R) The proper standard of recovery for a damaged pet is the fair market value of
      the pet. Williams v. McMahan, WA, 2002.
   (R) When the pet has no market value, the proper standard of recovery is the
      intrinsic value to the owner. Mieske v. Bartell Drug Co., WA, 1979.

    Krasnecky v. Meffen, MA, 2002 – When ∆’s dogs killed π’s sheep on π’s
      property, the πs claimed no economic losses, essentially limiting their damages to
      emotional distress and loss of companionship and society.
         o (H) Emotional distress claims are only supportable when the πs witness
              the injury or the immediate aftermath. Emotional distress may not be
              recovered in this case since the π’s did not learn of the harm until a day
              after it happened.
         o This case appears to indicate that emotional damages may be awarded in
              an instance where the pet’s owner does witness the harm.

        BAILMENT (Temporary possession of another’s property under a K)
David v. Lose, OH, 1966 – When π left his mare with ∆ for the purposes of breeding, the
π returned to ∆’s to discover that the mare had been euthanized due to a broken leg.
     (R) The bailee (the one with temporary possession of the animal) is required to
        exercise ordinary care in the safekeeping of the bailor’s property and to return the
        property undamaged upon the termination of the bailment.
      (R) A bailee is excused from his obligation to return the bailor’s property if it is
       not the bailee’s fault that the property was lost or damaged, otherwise the bailee is
      (R) If a bailee cannot show (or does not know) how the damage occurred, he must
       prove (burden of proof is on ∆ - this is an exception to the general rule) that he
       took reasonable precautions under the circumstances to prevent the damage,
       otherwise the bailee is liable. When property is damaged while in the possession
       of a bailee, a presumption of negligence is on the bailee.
      (C) The bailee here does not know how the mare was harmed and did not prove
       that he took reasonable precautions to prevent the damage, so he is liable.

California – the law in most jxs. is similar to California’s
    Gebert v. Yank, CA, 1985 –
           o (R) A bailment for the benefit of both parties imposes on the bailee the
               duty to use ordinary care with respect to the bailor’s property.
           o (R) Breach of the bailment contract may be asserted by the bailor when
               the bailee fails to return the bailor’s property.
           o (R) A bailee is culpable for the loss of the bailor’s property if the loss
               occurred due to the bailee’s negligence.
           o (R) In a civil case, the burden of proof typically rests on the π, but an
               exception to this rule is in an instance of bailment where a
               presumption of negligence is on a ∆ bailee who does not return a
               bailor’s property. ∆ must prove by a preponderance of the evidence
               that the lost property was not his (the bailee’s) fault.

                           VETERINARY MALPRACTICE

      (R) To win a cause of action sounding in veterinary malpractice, π must prove the
       following elements:
           o Duty – vet must conform to the standard of care)
                   duty is established when the vet accepts your dog
                   standard of care may be established by the π to be very local or
                      global – choose strategically, it may be necessary to expand the
                      community of care to find an expert who is willing to testify
                      against the tortfeasor. Your expert will have to specify what the
                      standard of care is.
           o Breach of duty – vet breached of the standard of care
           o Breach of duty was the proximate (but for) cause of injury
           o Damages – animal was actually damaged by the vets breach of the
       These cases are very difficult to win.

Several jxs.’ statutory laws include vets in the definition of “health care provider.” This
should be considered by a litigator representing an owner/guardian and her pet.
    KY – Levine v. MBP, pending – Complaint listed “Rudy” (a dog and patient) and
       his owner as πs on a suit for vet malpractice. Statutory language recognizes the
       “patient” as a stakeholder in the practice of vet medicine. ∆ withdrew motion to
       strike Rudy as a π.

    (H) The medical malpractice standard applies to veterinary malpractice cases.
       Vets, like medical doctors, are licensed health care providers, and vet malpractice
       cases are treated like medical malpractice cases for purposes of statute of
       limitations. Williamson v. Prida, 1999 appellate holding.
           o Can you not sue a vet under Bailment in CA?
    Cal Civil Code § 3333.2 (a.k.a. MICRA – medical injury compensation reform
       act) caps recovery to $250K for non-economic damage awards resulting from
       professional negligence (medical malpractice perpetrated by any “health care
       provider”). California’s statutory definition of “health care provider” includes
           o MICRA applies only in cases of “professional negligence.”
           o It has been held that the recovery cap in MICRA applies when the π is not
               the patient (suit for loss of consortium or ED). CA permits loss of
               consortium claims only by a spouse.
           o Legislative purpose of MICRA was to reduce judgments against health
               care providers and in turn healthcare.
           o MICRA statute of limitations has been used to bar claims of professional
               negligence against veterinarians. Haverstock v. Hoge, CA App. 2003. And
               Williamson v. Prida, above.
           o Though it hasn’t yet been attempted, a π seeking recovery under MICRA
               due to a vet’s professional negligence would probably have to prove a
               “personal injury” or a “wrongful death” as a result of the vet’s negligence.

Some jxs. won't permit a bailment suit against a vet; a π’s sole remedy is vet malpractice.
    PA – Price v. Brown, PA, 1996 – (H) Allegations of breach of a bailment
      agreement are insufficient to state a cause of action against a vet who has
      performed surgery on an animal when the animal suffers an injury. Professional
      negligence concepts extend to vet medicine.
          o (C) Since π’s cause of action asserts a bailment action and not malpractice,
              the case is dismissed.
    If your in a jx. that won’t permit bailment c of a against a vet, consider suing for
      breach of K – pet = property, and vet entered into a K w/owner to care for

MN – Bekkemo v. Erickson, 1932 – Court applied a medical malpractice standard,
holding ∆ to the standard of care as established by the standards of vet medicine in the

Some courts in other states offer conflicting holdings as to whether or not the medical
malpractice standard applies to vets.
                        INJURIES CAUSED BY ANIMALS

Where an animal causes an injury, the owner may be held strictly liable, but in cases
     the ∆ did not act negligently in failing to properly restrain or control the animal or
     the π’s own knowing and voluntary conduct caused the injury
the doctrine of strict liability is not applied.

The common law rule declaring that an owner is not liable for injury caused by her
animal unless she knew or should have known of the animals violent proclivities has been
abrogated by strict liability statutes in many jurisdictions.

Wild Animals
    Baugh v. Beatty, CA, 1949 – (R) A ∆ is strictly liable when he knows his animal
      is dangerous.
          o Wild animals are presumed dangerous.
          o (R) The owner of a wild animal is strictly liable for harm caused by
             the animal unless the person harmed knowingly does something to
             cause the injury.
                   Comparative negligence is the only defense available for the owner
                     of a wild animal that harms another.
    Majestic Realty Associates, Inc. v. Toti Contracting Co., NJ, 1959 – owners of
      wild animals are strictly liable for injuries caused by their animals.
          o The magnitude of the risk outweighs the social utility.
    Stamp v. 86th St. Amusement Co., NY, 1916 – When a π is injured by a crowd that
      was panicked by escaped lions, the owner of the lions is strictly liable.
    Some courts apply liability to wild animal keepers only when the owner acts
          o Vaughan v. Miller Bros., WV, 1930 – Wild animal exhibitors are only
             liable when their negligence leads to injuries by their animals.
    People who own land upon which wild animals live are immune from suits when
      people are injured by those animals

Domestic Dogs
   Ca Civ. Code 3342 – imposes strict liability for dog bites; owner liable for all
     damages (wage loss, medical, pain and suffering, ED, bystander ED, loss of
     consortium, etc.)
         o Only applies to DOG BITES
         o Provocation by the victim (or any other comparative negligence) is the
         o Many home owners insurance policies cover dog bites.
   Drake v. Dean, CA, 1993 – When the dog injures (but doesn’t) bite:
         o (R) When an animal owner knows or has reason to know that his animal
            has abnormally dangerous propensities, he is strictly liable for damage
            that results from them (i.e. owner has a duty).
                   The owners negligence or lack thereof is irrelevant.
                   If a π proves scienter, strict liability is applied.
           o (R) The “dangerous propensity” of the animal need not be a vicious
                   If a large dog has a habit of greeting strangers with a friendly bear
                      hug, and the owner knows it, the owner is strictly liable if that bear
                      hug knocks down a stranger and breaks her hip.
           o (R) Unless she is negligent, an owner is not liable when her pet causes
              harm if she did not know or have reason to know of the pets potential to
              cause the harm.
                   “Reasonable foreseeability” is the criterion by which negligence is
           o Odd injuries can’t be ones that an owner knows or has reason to know
              might occur – so look to the injury and find something about it that makes
              it odd.
                   E.g. poodle steps on young man’s foot and breaks it
      Landlords - Absent knowledge of the dog’s
           o presence and
           o his dangerous propensity
       landlords are generally not held liable for their tenant’s dog’s damages, but
                   Uccello v. Laudenslayer, CA, 1975 – (R) a property owner has a
                      duty of care if she has
                           knowledge of the animal’s presence,
                           knowledge of the animal’s dangerous propensity, and the
                           right to remove the animal by retaking possession of the
      Courts discriminate against certain breeds (e.g. pitbulls)

                                    Justiciability Issues
The following doctrines are ways of avoiding/preventing adjudication:
    Standing – a gatekeeper doctrine that keeps people out of court
    Mootness – issues are resolved already (many exceptions to this – like if the issue
       is likely to surface again and again judicial review is needed)
    Ripeness – issues have not risen to a level that is ready for adjudication
    Advisory Opinion – π and ∆ want to come to court to get an opinion on something
    Political Question – Jones v. Beam – Court can’t adjudicate the issue.

                                 POLITICAL QUESTION
Jones v. Beame, NY, 1978 – A claim is nonjusticiable when it raises questions of
judgment, discretion, allocation of resources and priorities that are inappropriate for
resolution in the judicial arena. The judicial process is not designed or intended to assume
the management and operation of the executive enterprise.
     (R) A controversy is nonjusticiable (i.e. involves a political question) where there
            o a textually demonstrable constitutional commitment of the issue to a
                coordinate political department; or
           o a lack of judicially discoverable and manageable standards for resolving it;
           o the impossibility of deciding without an initial policy determination of a
             kind clearly for non-judicial discretion; or
           o the impossibility of a court’s undertaking independent resolution without
             expressing lack of the respect due coordinate branches of government; or
           o an unusual need for unquestioning adherence to a political decision
             already made; or
           o the potential for multifarious pronouncements by various departments on
             one question. Baker v. Carr, U.S. 1962.

A citizen has no standing when
   o the court lacks subject matter jurisdiction and
   o no private right of action exists.

(R) Textual (i.e. Constitutional) standing requirements – challenged action will cause
the π some actual or threatened:
    1. injury in fact that is
    2. fairly traceable to the challenged action (causation) and
    3. is redressable by judicial action
Valley Forge Christian College v. AU for Sep. of Church and State, U.S., 1982.

(R) Judicially created (i.e. prudential) standing requirements
    1. π may not raise the complaints of 3 rd parties (i.e. π must be injured)
    2. Citizen suits brought on behalf of all citizens (everyone is suffering the same
       injury = generalized grievance) are not permitted. π must show special
    3. Statutory claims must be entitled to relief and within the zone of interest
       protected by the statute.
           o The zone of interest prong is met when a “plausible relationship” exists
                between the interest of the π and the policies embodied in the “overall
                context” of the statute. Clarke v. SIA, U.S., 1987.
                         The “zone of interest” prong is restricted in that the specific
                            provision of the statute on which the claim is based must be
                            applicable to π’s interest (Bennett, U.S.)
Because they are judicially created, prudential standing requirements can be altered by
     Bennet v. Spear, U.S. 1997 – The prudential standing “zone of interest”
       requirement is expressly negated by the ESA since the statute says, “any
       person may commence a civil suit.” Therefore, economic interest, not just
       environmental interest, may be vindicated under the ESA.
           o πs seeking to prevent application of environmental restrictions rather than
                implement them may bring a suit asserting over enforcement of the
           o The “any person” language eliminates the zone of interest requirement.
             This requirement is eliminated when you sue directly under the ESA, but
           o Suing under the APA, you still must meet all the prudential requirements.

Injury in Fact
     π must be injured
            o When Sierra Club sued under NEPA to protect the environment, the case
               was dismissed b/c no Sierra Club member was injured:
                    There must be injury of the plaintiff. No proof of an injury to the
                       environment is required to have standing (Sierra Club v. Morton,
                       U.S., 1972)
            o One or more of the π’s members must be directly affected by the ∆’s
               actions (Lujan v. DOW).
     Types of injury that qualify for standing
            o Destroying or adversely affecting the
                    scenery
                    natural and historic objects
                    wildlife
            o impairing the enjoyment of a park/preserve
            o economic injury – atty. fees don’t count.
                    destruction of an animal that one studies, researches for a living
                       (Japan Whaling Assn. v. American Cetacean Society)
            o procedural injury – one is denied a statutorily guaranteed right or process
            o Aesthetic injury
                    This may be subjective under the AWA, eggshell π (ALDF v.
                    Having to witness animal corpses and environmental degradations
                       (HSUS v. Hodel)
            o Informational injury – a π who specializes in disseminating information is
               harmed if the information she disseminates is no longer available (See
               ALDF v. ESPY for more information).
     Injury must be (Lujan v. DOW)
            o imminent (presently, or very soon – past exposure to illegal conduct
               doesn’t count)
                    Baur v. Veneman – potential threat of CJD when downed animals
                       are used for food sufficient for standing
            o particularized
            o concrete
            o actual
            o redressable

Causation (fairly traceable)
    A π satisfies the causation prong of constitutional standing when he establishes
       that the challenged agency rule permitted the activity that injured him, when the
       activity would have otherwise been illegal (Telephone v FCC, DC Cir. 1994).
           o When a challenged government action permits (it need not compel)
                injurious third party conduct, causation sufficient to gain standing is
      When a challenged agency rule authorizes conduct that would otherwise be
       illegal and that conduct causes the π’s injury, the causation prong has been met
       (Alternatives Research and Development v. Glickman).

Lujan v. Defenders of Wildlife, U.S. (1992) – Activities of the U.S. Government abroad
are allegedly contributing to the extinction of endangered species. When πs attempted to
sue under the Endangered Species Act they were dismissed for lack of standing.
     If you are getting ready to go to court under circumstances like those in this case,
        buy a plane ticket.
     Someone who studies an animal as a vocation can have standing to sue because
        the injury in fact imminently threatened is the person’s vocation. Even if someone
        doesn’t travel to where animals are being killed, yet studies them, may be able to
        demonstrate injury in fact. A spider researcher may, for example, depend on data
        that is culled from other researchers around the globe. This equates to an
        imminent economic injury.
     What if you could watch the animals dying on television? Could you gain
        standing in that case? It’s arguable, but redressable step may be turning off the
        television. A situation like this will almost certainly not gain one standing.
        Though it is not mentioned, there is most certainly a proximal component to the
     Procedural injury – What procedural injury would satisfy article three? It can’t be
        a generalized complaint. When a statute lays out a procedure that the government
        must go through before taking action, its generalized injury = no standing. A
        procedural injury wherein someone is denied a process guaranteed to her in a
        statute would permit standing.
     (C) πs’ plans to return to the affected area someday doesn’t support a finding of
        the actual or imminent injury that must be shown before standing is granted. No
     The desire to use or observe an animal species, even for purely aesthetic purposes,
        is undeniably a cognizable interest for purposes of standing.

Japan Whaling Association v. American Cetacean Society, U.S. 1986 – Animal
protection groups alleged a sufficient injury in fact since the whale watching and
studying of its members would be harmed by the ∆’s continued slaughtering of whales.

ALDF v. ESPY, DC Cir, 1994 – πs allege that the secretary’s refusal to initiate a
rulemaking to correct the regulation specifically excluding birds, rats, and mice from
AWA was illegal.
     The restrictions on standing in this case are outrageous; it just goes to show that if
      a judge is ideologically against animal rights, even π’s that clearly meet standing
      requirements will be denied access to the court.
     Informational injury satisfies the minimum requirements of Article III standing
      (pay attention to this case, not the Mass. CEASE case above), but it does not fall
       within the AWA’s zone of interest. APA only permits standing when the person is
       harmed “by agency action within the meaning of the relevant statute.”
          o Informational injury can surmount the zone of interest threshold only
               when the statute specifically creates a right of information (Havens Realty
               Corp. v. Coleman, U.S. 1982).
          o Competitive v. NHTSA, DC Cir. 1990 – informational injury is justiciable
               where the information sought is essential to the injured organization’s
          o Informational injury can be seen as a generalized, but a π trying to use it
               can argue that they specialize in disseminating the particular information
               that is being withheld.

Alternatives Research and Development v. Glickman, DC Cir. 2000 – πs allege that the
secretary of the USDA violated the AWA by promulgating rules that exclude birds, mice
and rats from the definition of animal under the act.
     (H) The AWA doesn’t grant the USDA’s secretary unreviewable discretion to
        determine which animals are protected by AWA.
     Per ALDF v. Glickman, aesthetic injuries are sufficient to meet the injury in fact
        standing requirement; it doesn’t matter if the injury was sustained at work – it’s
        still an injury. The AWA covers animals in zoos as well as animals in
        laboratories. Also see Lujan v. Def. of Wildlife, U.S. “…the person who observes
        or works with a particular animal threatened by a federal decision is facing
        perceptible harm”
     Causation – In this case, the treatment of the rats would otherwise be illegal since
        the rats should be covered by the AWA – the exclusion of rats from the AWA was

ALDF v. Glickman, DC Cir. 1998 – AWA requires USDA Secretary to promulgate
standards governing, inter alia, primate care such that their physical environments will be
adequate to promote their psychological well being. π alleges that his visits to a game
farm are causing aesthetic injury due to the game farm’s failure to provide primates with
adequate care (primates were housed alone w/out adequate stimulation in their cages).
     (H) Aesthetic or emotional (i.e. subjective) injuries satisfy the zone of interest
       requirement under AWA.
           o The aesthetic injury = observing animals that are inadequately housed
               (insufficient socialization, case stimulation, housed next to wrong species)
                    People have a cognizable interest in viewing animals free from
                       inhumane treatment (Animal Welfare Institute v. Kreps, DC Cir.
                    The “eggshell π” can get standing for his injuries under the lax
                       zone of interest requirement of the AWA.
           o The suffering of a single animal is sufficient to establish standing under
               this holding.
     Causation - the AWA requires the USDA to adopt minimum standards. The
       condition causing π’s aesthetic injury complied with USDA regulations
      The argument against the AWA is that it is to protect animals not people, but
       courts permit people to sue b/c someone has to protect the animals.

Instances where a π can get standing:
     When public officials fail to perform statutorily imposed duties, and the statute
       contains a citizen suit provision (an express private right of action)
           o APA serves a back-up function when a private right of action is not
               specified in a statute.
     §10 of the Administrative Procedure Act provides “A person suffering legal
       wrong because of an agency action, or adversely affected or aggrieved by agency
       action within the meaning of a relevant statute, is entitled to judicial review

Chevron Deference
    When a regulatory statute contains no ambiguities, then there is no room for
      interpretation; Congress’s intent is clear. The court and the agency must give
      effect to the unambiguously expressed intent of congress.
    If the court determines that Congress has not directly addressed the precise
      question at issue, the court does not simply impose its own construction on the
      statute. If the statute is silent or ambiguous with respect to the specific issue, the
      question for the court is whether the agency’s answer is based on a permissible
      construction of the statute. The court should defer to agencies’ interpretations of
      statutes unless they are:
          o arbitrary,
          o capricious, or
          o manifestly contrary to the statute
    (R) A court may not substitute its own construction of a statutory provision for a
      reasonable interpretation made by the agency.

Organizational (associational) Standing – An organization has standing to sue on behalf
of its members when
      it's members would have standing to sue on their own,
      the interests it seeks to protect are germane to the organization’s interest, and
      neither the claim asserted nor the relief requested requires the participation of
        individual members. Hunt v. Wa. St. Apple Ad. Comm., U.S., 1977.
            o The germaneness prong of associational standing is met when an
               organization’s litigation goals are pertinent
                    to its special expertise and
                    the grounds that bring its membership together.
            o To avoid running up against the “germaneness” limitation under the
               standing requirements for an organization to sue on behalf of its members,
               join the members as fellow plaintiffs.
      Organizational standing can be predicated upon
            o an injury to an organization, so in this case, the organization itself is suing,
           o an organization can sue on behalf of its members, representing them in
              court for injuries the members have sustained.
      A mere assertion of organizational interest in a problem is not sufficient to confer
       standing (ALVA Inc. v Weinberger, 9th Cir. 1985).
           o Strong interest in an issue ≠ injury in fact. But you should make the
              argument that this is a particularized injury for HSUS members b/c it will
              be experienced in a way unlike that in the normal population – HSUS
              members are different from the laity in their love for animals.
           o Distress over the shooting of goats on San Clemente Island is not injury in
              fact. NEPA does not create a c of a for those suffering from psychological
              impact from a particular action except, perhaps, in cases where the
              psychological impact arises from changes in the π’s physical environment.
           o Longevity of the organization is a factor that a court considers. A group
              historically committed to a particular cause is more likely to gain standing
              concerning that cause.
      HSUS v. Hodel, DC Cir., 1988 – Humane Society and member, Kindler, seek
       declaratory and injunctive relief to prevent hunting on wildlife preserves on the
       grounds that the hunting will violate NEPA, ESA and two other statutes.
           o Complaint asserts that the government failed to complete mandatory
              environmental impact review before taking action.
           o That HSUS members will have to “witness animal corpses and
              environmental degradation” is an “injury in fact”
           o Challenging hunting on wildlife refuges is germane to HSUS’s purposes.
           o The “zone of interest” prong is met because there is a plausible
              relationship between the statutes HSUS is suing under and HSUS’s
              interest in protecting animals.

Civ Pro Review:
    In a motion to dismiss, everything asserted in the complaint has to be presumed
    In a motion for summary judgment, party fighting dismissal must provide
       affidavits indicating that the federal court has jx.

As long as one π has standing to sue, the suit can go forward. The Standing of additional
πs need not be considered.

                                       First Amendment
Free Exercise Clause - Church of the Lukumi Babalu Aye v. City of Hialeah, U.S. 1993 –
When a city enacts an ordinance that targets the Santerian tradition of animal sacrifice, it
violates the 1st Am’s guarantee of religious freedom.
     A neutral law does not violate the free exercise clause even if it incidentally
        impacts a particular religious practice.
            o No facial discrimination = neutral
            o Absent facial discrimination, a law may still be found violative of the Free
                 Exercise clause if it is discriminatorily enforced.
      When a law is not evenhanded (i.e. it discriminates against some or all religious
       groups), it violates the Constitution unless the law is justified by a compelling
       governmental interest and is narrowly tailored to advance that interest.

Freedom of Speech – Hunter Harassment Laws
    When protest activity impinges upon another person’s rights, the speech or
      conduct is subject to reasonable regulations on the time, place, and manner in
      which it is made. Restrictions on the protest activity must be drafted such that the
      content of the speech is not directly targeted. Any restriction that targets ideas
      or opinions is presumptively invalid.
    State v. Miner, MN, 1996 –
          o Statutes that limit speech based on content are unconstitutional, but
               incidental limitations on speech are permissible when
                    a sufficiently important governmental interest compels the
                       control of
                    a non-speech element (conduct) combined with the speech,
                    the government interest is unrelated to the suppression of free
                       expression, and
                    the incidental restriction on speech does not exceed what is
                       necessary to secure the furtherance of the interest being protected.
                       U.S. v. O’Brien, U.S. 1968.
    Dorman v. Satti, CT, 1988 – π sues under 42 U.S.C. § 1983 alleging violation of
      her first, fourth and fourteenth amendment rights.
          o When a law prohibiting conduct is challenged for vagueness and
               overbreadth, the analysis is as follows:
                    A law is overbroad when it reaches a substantial amount of
                       constitutionally protected conduct (overbroad).
                            Overbreadth – Does the act implicate the communicative
                               aspect of the conduct it proscribes? If yes,
                                   o is the communication entitled to 1 st Am. protection?
                                            Types of speech, with the extent of
                                               protection in descending order:
                                                    Pure speech (most protected – but
                                                      time, place, and manner regulation
                                                      can be applied even against pure
                                                    Speech with related conduct
                                                    Symbolic speech (burning a draft
                                                    Unprotected speech (libel, fighting
                                   o An act is unconstitutional when it prohibits
                                       protected speech, However,
                                            incidental restrictions on 1 st Am. rights are
                                               allowed when there is a sufficiently
                                           important governmental interest in
                                           regulating the conduct.
                                                For reasons of safety, a state may
                                                   regulate the conduct of non-hunters
                                                   in areas when and where state
                                                   sanctioned hunting is taking place.
                                                   Outside of such a context, a hunter is
                                                   subject to the “onslaught of
                                                   repugnant ideas” espoused by
                The greater the scope (potential overbreadth) of the statute, the
                   more stringent the analysis under the vagueness prong.
                Vagueness – an act is not vague if it
                        gives a person of ordinary intelligence a reasonable
                           opportunity to know what is prohibited so that he may act
                           accordingly, and
                        provides explicit standards to ensure that enforcement is
                           not arbitrary or discriminatory.
   SCOTUS has sanctioned buffer zones around abortion clinics and the like to
    maintain safety and order.
   Factors that should be raised in HHA cases:
       o What specific act was the ∆ engaged in when accused of harassing the
           hunters? Is there a verbal/speech component?
       o What is the intent of the accused?
       o In what context did the interference occur (in a time in place that is
           covered by the statute?)
       o What conduct was interfered with, if any?
       o What was the legislative intent when the HHA was created; what
           motivated the legislature to enact it?

                       Due Process Challenges and Claims
   American Dog Owners Association v. Yakima, WA, 1989 – The ordinance
    banning Pit Bulls is legal.
        o A statute is presumptively constitutional, and will be construed thus unless
            a challenger can show beyond a reasonable doubt that the statute
                 fails to provide adequate notice to citizens or
                 lacks standards to prevent arbitrary enforcement
                        Notice is adequate when a person of ordinary intelligence
                           can reasonably tell what is prohibited.
                        Standards that invite an inordinate amount of police
                           discretion fail to prevent arbitrary enforcement.
   Garcia v. Village of Tijeras, NM, 1988 – πs challenge the ordinance banning pit
    bulls on the grounds that it is 1) vague, 2) violates due process, and 3) amounts to
    a taking w/out just compensation.
          o In order to pass muster under the 5 th and 14th Amendments (due process,
            equal protection), legislation must bear a rational relationship to a
            legitimate legislative goal or purpose.
                 In light of recent Pit Bull attacks and the prevalence of the dog
                    (25% of all residence have at least one) Tijeras’ goal of protecting
                    its citizens is rationally related to the restriction of Pit Bull
                 Due process is met by the statute which provides for a hearing
                    prior to a dog’s execution.
                 Due process under the takings clause is not violated b/c a
                    reasonable regulation enacted for the benefit of the public health,
                    convenience, safety, or general welfare is not an unconstitutional
                    taking of property. The destruction of private property in this case
                    is a legitimate use of the police power.
                          Residents were notified prior to enforcement of the
                             ordinance and
                          They have the option of moving their dogs outside the

Animal Treatment on Farms
    There are minimal laws protecting animals in agriculture in America; they are so
      scant as to amount to a complete absence of protection. The three laws are:
          o State cruelty laws – these don’t apply in 35 states b/c in those states
              animals in agriculture are exempted from the laws. The extent of
              exemption vary; some don’t permit blatant cruelty (beating a horse with a
              shovel for fun), others permit everything.
                   State cruelty laws are criminal laws so they can’t be enforced by
                      private litigators.
                   CA has no exemption for farm animals for animal cruelty laws; so
                      a prosecutor could go after farmers, but they don’t.
          o Humane Methods of Slaughter Act – covers the last 20 or so minutes of an
              animal’s life.
          o 28 Hour law – covers transport in trains and trucks (Trucks recently added
              Pyrrhic victory since enforcement in trucks will be nearly impossible).
    Ballot initiatives may be a viable way to improve animal treatment on farms since
      the popular vote isn’t captured by the dairy industry to the extent that state
      legislatures tend to be.
    Rodeos are exempt in nearly every state
    Research is exempt in virtually all states
    10 billion animals are killed for food each year in America
    98% of all animals in America are farm animals – so, this means that virtually
      none of the animals in the U.S. are protected at all – except the 2%.
    Farm animal litigation is relatively new – Animal lawyers have had to come up
      with creative ways for litigating b/c there are no laws protecting the animals.
      There are three types of litigation
          o Those that directly affect the treatment of the animals – these are the least
            seldom types filed
          o Those that indirectly affect animal treatment. These are the majority of
            cases. These challenge representations/advertisements made by
            corporations that market animal products.
                 This forces corps to change their advertising, but it doesn’t force
                    them to treat animals differently. The hope is that the consumer
                    will be better informed, and the pressure on corporations to treat
                    animals better will eventually improve animal treatment.
          o Cases that come out of nowhere –
                 McLibel.
                 Wrongful termination case of circus worker who claimed he was
                    fired for objecting to poor animal treatment.
                 Bobby Somethingerinie sued PITA for defamation when PITA
                    showed videos of him beating chimps on TV.

Commercial Uses of Animals
   ALDF v. Provimi Veal, MA, 1986
         o ALDF c of a asserts:
                 Provimi’s packaging is deceptive b/c it in no way reveals to
                    consumers the cruel conditions under which the veal is raised. This
                    can and has caused injury by
                         Offending the moral and aesthetic beliefs of consumers
                            who belatedly discovered that they contributed to the
                            cruelty by patronizing Provimi. This harm could be
                            prevented if consumers were apprised of Provimi’s
                 Provimi’s use of antibiotics can lead to injury in fact by leading to
                    consumer consumption of mutant strains of bacteria that are
                    antibiotic resistant.
                         ALDF’s claim does not state that Provimi has sold veal in
                            the state contaminated with MR Salmonella.
         o ALDF seeks
                 injunctive relief – Provimi should label its products indicating
                         animal treatment
                         animal consumption of antibiotics
         o ALDF claims under 93A, that it is an unfair trade practice not to comply
            with a state public health statute or regulation, is unnecessary to address
            b/c federal laws govern the use of antibiotics (FDCA) in livestock and
            labeling requirements (FMIA).
                 A federal act trumps state law when (Crisp, U.S. 1984)
                         Congress explicitly expresses an intent to preempt,
                         The act is comprehensive (occupies an entire field of
                            regulation) leaving no room state law to supplement federal
                         when compliance with state and federal law is impossible
        o Is it appropriate use of the courts to further an agenda of protecting animal
            rights indirectly by compelling violators to abstain from deceptive
            marketing or, even better, divulge to the public their methods?
                 This is an open question. I would argue that it is. As long as you
                    satisfy the Rule 11 standard, you have a right to bring a suit.
                 Bringing a suit to expand the law is okay – see rule 11.
                         FRCP 11(b)(2) permits a law suit as long as the claims,
                             defenses, and other legal contentions therein are warranted
                             by existing law or by a nonfrivolous argument for the
                             extension, modification, or reversal of existing law or the
                             establishment of new law
                        nd
    Baur v. Veneman, 2 Cir. 2003 – When π’s asserted a c of a under the FMIA and
    FDCA to ban the use of “downed” animals as food, they were granted standing
    b/c risk of exposure to CJD was considered a sufficiently credible risk of harm to
    surmount constitutional standing requirements.
   Compassion over Killing v. Giant Food Store, DC, 2005 – seeking injunction,
    statutory and compensatory damages for misleading advertising by egg producers
    was permitted to go forward b/c COK wasn’t seeking affirmative label
    modifications and:
        o All πs have standing to bring claims of unfair and deceptive trade practices
            under DC’s consumer protection act (CCPA) whether acting in its own
            interest or on behalf of the general public.
   Jones v. Butz, NY, 1974 –
        o Suit is brought to challenge the HMS Act. On the grounds that it
                 Is not humane and
                 Violates the establishment and free exercise clause
        o HSA approved by Congress:
                 Render animal insensible before shackle and hoist – the animal is
                    rendered insensible by hitting in the head really hard.
                 Kosher (or other) slaughter – Do not render animal insensible
                    before shackle and hoist; cut the carotids.
                         This law can’t be challenged as arbitrary and capricious b/c
                             it’s been enacted by Congress, not promulgated by an
        o Judge in this case defers to Congress, and holds that the law as written is
            not for him to overturn.
        o Establishment Clause issue – involvement of the rabbis and inclusion of
            the Kosher rule in the HS Act is challenged as a violation of the
            establishment clause.
                 Judge summarily dismisses this by holding that the Kosher rule is
                    there purely for example and that other ritual slaughter methods are
        o Free exercise thereof clause (extends to religion and firmly held moral
            beliefs – so an atheist may have a free exercise argument when her firmly
            held moral beliefs are violated) argument – the law as written makes it
           impossible to for purchasers to tell when an animal has been humanely

   Criminal Laws are the main set of laws that protect animals
       o Every state has animal anti-cruelty laws.
       o There is no animal cruelty statute outside of NC that permits civil
          action for animal cruelty.
       o Progression
               Animal cruelty laws initially developed to protect the property of
                 others; traditionally, you could be cruel to your own animals.
               The laws apply to animals that you own as well as the animals of
                 others. It’s a public policy to protect animals and prevent harm to
                 others’ property.
                       Penalties have increased for cruelty in recent years – most
                          states now consider exaggerated cruelty (repeat offender,
                          egregious act) a felony.
                              o Cases today are frequently brought on the
                                  moral/ethical issue.
                       Definition of cruelty in statutes varies, but two most
                          important words are:
                              o Justifiable – when an act toward an animal is
                                  justifiable, it’s not cruel.
                                       ≈ 35 states exempt farm animals, and most
                                           exempt rodeos, biomedical research, sports,
                                           exhibitions – in these instances, animal
                                           treatment is “justifiable.”
                                       Necessity – a ∆ may be excused (and a
                                           necessity instruction may be given) when an
                                           illegal act was taken to prevent a greater
                                           harm than what would have occurred were
                                           the act not taken.
                              o Unnecessary - when an act toward an animal is
                                  unnecessary, it’s cruel
       o Acts of Omission – Cruelty laws require some sort of intent or
          knowledge, so Acts of Omission are the toughest to prove since one has to
          prove some sort of neglect.
               Martinez v. State, TX, 2001 – Absent evidence of intent or
                 knowledge, a fact finder may infer a culpable mental state from
                 the circumstances surrounding the offense of cruelty to animals.
               CA penal code § 597(f) – A person convicted of a violation of this
                 section by causing or permitting an act of cruelty…shall be liable
                 for all costs of impoundment (of the animals) from the time of
                 seizure…(violation of § 597 can be a felony)
               Hoarding – This is the biggest threat to companion animals in
                 America. A hoarder is someone who has more animals than they
                      can care for and does not appreciate the damage that is being
                           People v. Youngblood, CA, 2001 – A hoarder was not
                              permitted a jury instruction on the defense of necessity
                              though she claimed she hoarded the cats to prevent
                              euthanasia. She was convicted under CA Pen. Code § 597.
                                  o Necessity defense not available to protect animals
                                      from euthanasia since public policy mandates
                                      euthanasia under certain circumstances.
                           It is a myth that hoarders don’t
                                  o Breed animals
                                  o Give up animals
                                           You can do both and be a hoarder
                           Hoarders come in 4 flavors
                                  o Breeder
                                  o Rescuers – keep animals to prevent euthanasia –
                                      often nutcases who hoard animals in horrible
                                      conditions with the idea that its better than
                                  o Overwhelmed caregiver – the cat lady
                                  o Miscreants – in it for money, exploitative
                           The most important thing to remember about hoarders is
                              that they can’t stop – they can’t stop acquiring animals.
                              Recidivism is the hallmark of hoarders.
                           Hoarders believe themselves to be the defenders of their
                              animals, and that those who are trying to take the animals
                              have no interest in helping the animals.
                           Cannibalism is common at a hoarders’.
                           Filth is a benchmark of hoarding – if the animals are taken
                              care of, then the person who has them is not a hoarder.
       Preserve the evidence if you are going to fight a cruelty case.
           o Autopsy
           o Pictures, videos (for dead or injured animals)
           o Get a veterinary report, get x-rays so that an expert can testify
           o Forensic evidence (microwave with a cat in it? Keep the microwave, don’t
              clean it.)
           o Without evidenced, you got no case – remember, in a criminal case, you
              must prove beyond a reasonable doubt.

Wills & Trusts Providing for the Destruction of Testator’s Animals:
    First step in Will is to construe the testator’s intent.
    Smith v. Avalino, CA, 1980 (the Sido case) – A will provision mandating the
       destruction of a dog is invalid on public policy grounds, further the word
       “dispose” in the will statute does not mean to destroy; it is illegal for a testatrix to
       order the destruction of her property.
           o The holding in this case reflects the national approach.
      In Re Capers Estate, PA, 1964 – When a Will provision orders the destruction of
       a testatrix’ dogs upon her demise, the euthanasia is prevented b/c:
           o The intent of the testatrix was that the dogs not receive care inferior to that
                which was provided by her. Her intent can be fulfilled by permitting
                others to care for her dogs
           o It is illegal – A testatrix right under the Wills Act does not confer upon her
                the right to order the destruction of her property.
           o It violates public policy to permit wanton cruelty to be inflicted on
    In Re Estate of Howard Brand, VT, 1999 – Testator’s will provided for the
       destruction of his car and animals, but cy pres was used to prevent their
           o Clear testatorial intent won’t be complied with when it violates
                      Law or
                      Public policy
           o Animals are a unique type of property that merit special attention.
                Classification as property is arbitrary. “Not long ago, the concept of
                property included various classes of humans” (slaves, wives).
           o Interveners urge that the provision be held invalid as against public policy
                or amended under cy pres to fulfill intent of testator that animals not suffer
                due to his absence.
           o Humane societies (when animals are injured, sick, or unwanted) and
                animal owners can kill animals w/out fear of reprisal, but there is a
                distinction between what a person can do and what a person can compel
                others to do in his stead.
    Sido’s Case – When a testatrix’s will provided for the immediate destruction of
       her dog, the executor sued the SF Society for the Prevention of Cruelty to
       Animals who refused to release the dog. The CA legislature passed a bill
       outlawing the provision of the will, mooting the issue, but the court held in spite
       of mootness, that the word “dispose” in the probate code means to pass on
       property not to destroy or damage it and that the destruction of an animal under
       these circumstances is illegal and violative of public policy.
Wills & Trusts providing for the Upkeep of Testator’s Animals:
    Many states now have statutes governing and validating trusts left for companion
           o “Honorary Trusts,” in states where length is not limited to the animal’s
                life or 21 years, can extend for several generations of the animal’s
                offspring by designating several human babies as the lives in being by
                which the length of the trust is to be determined.
           o CA statute permits honorary trusts that are limited to the life of the animal.
    In Re Renner’s Estate, PA, 1948 – When testator’s heirs argue that a trust created
       for the care of testator’s animal was in violation of the rule against perpetuities,
       the court held that no trust was created (despite language indicting the creation of
       a trust), and that the money left for the sake of the animals was not a trust, but
       rather a bequeathing of the property to the executrix who was expected to
       care for the animals.
      In Re Lyon’s Estate, PA, 1974 – Testatrix will declares that a huge portion of her
       estate shall be used to care for her animals until they die and that the remainder
       shall then go to Princeton U.
            o The trust created by the will is invalid b/c it does not name a person,
                corporation, or association with a beneficial interest capable of enforcing
                the duties of the trustee, but it can still be given some effect as an
                “honorary trust” (one where the trustee is expected to behave despite
                being policed).
                     The money necessary to carry out the testatrix’s intent of caring for
                         the animals shall be set aside, but the remainder of the estate shall
                         be accelerated to Princeton.
            o Rule against perpetuities is measured by human, not animal life.
      In Re Searight’s Estate, OH, 1950 – Testator creates a trust of $1000 to be eroded
       at the rate of 75 cents/day for the care of his dog.
            o Trust is an “honorary trust” since nobody capable of policing the trustee is
                a beneficiary.
                     Honorary trusts are permissible when
                              RAP isn’t violated,
                              the purpose of the devisement is not capricious, and
                              the custodian is willing to carry it out.
            o Public policy supports the testator’s intent of caring for his dog.
            o A tax can’t be levied against the dog b/c the inheritance tax specifies that
                “a tax shall be levied upon succession to all property passing to a person,
                institution, or corporation.” A dog is none of these.
      In re Estate of Crawford, MD, 1986 – When a testatrix left everything to her dog
       but failed to specify the manner in which her dog should be cared for, the court
       went out of its way to fulfill the testatrix’s intent, but compare with:
            o In Re Estate of Russell, CA, 1968 – a testatrix left all her goods to her
                friend and her dog. The court determined that the testatrix intended to
                leave equal shares to each, making the dog a tenant in common. Dogs
                can’t inherit property, the court decided, so half the estate goes to the legal
      Alternative methods for providing for a companion animal:
            o Will money to a person on the condition that they care for your pets
            o Durable power of atty.

    Animals can’t be parties to Ks.
    Public Housing – U.S. Law provides that public housing residents may own 1
       or more common household pets subject to the reasonable requirements of the
       public housing agency and the reasonable behavior of the resident (i.e. pet owner
       isn’t cruel to the animal, is sanitary, responsible, etc.).
    Leases, covenants
           o Total bans on companion animals have generally been upheld by courts
               nationwide, but when they are selectively enforced courts are not as
               supportive. Prisco v. FVCA, FL, 2003.
         Limited bans are questionable, easier to combat than outright bans
          on pets. For example, a ban on cats, but not dogs would probably
          be pretty easy to argue against.
               Wagman thinks weight restrictions aren’t reasonable.
o Best argument against bans against pet is that you have a fundamental
  right to do as you please in your own home.
o Young v. Savinon, NJ, 1985 – When earlier leases did not prohibit pets, a
  “no pets” provision in renewal leases is invalid because it’s unreasonable:
       The Anti Eviction Act demands that landlords be reasonable with
          their tenants.
       No pets provision was inserted by a purchaser of the property who
          knew that the prior leases permitted pets and that tenants had pets.
       A seller of property can’t convey rights he does not have. The prior
          owner didn’t have the right to exclude pets; neither does the new
       The presence of pets provides tenants with added security in this
          high crime area.
       Expert witness testified to the physical and emotional advantages
          of owning companion animals.
o Animals may be statutorily permissible despite no pet provisions when an
  inhabitant’s physical or mental well being hinges on the presence of the
       Key issues in such cases are :
               Is the occupant disabled within the meaning of the statute?
               Is the animal a reasonable accommodation for the tenant’s
               Is the animal a properly trained service animal as opposed
                   to just a companion?
                       o Courts generally don’t require proof of training, but
                            some do.
       Under the ADA, the courts are pretty accommodating as long as
          the first two requirements are met.
               AW HOA v. Fair Housing Comm., CA, 2004 – a state
                   statute analogous to the ADA was used by homeowners in
                   an effort to get permission to keep their dog b/c the dog
                   helped w/their depression. The court found that a
                   companion animal, as opposed to a trained service dog,
                   could sometimes qualify as a reasonable
               Johnson v. Gambrinas, 5th Cir. A guide dog must be
                   permitted to go on a tour of a public brewery despite
                       o FDA regulations demanding that no animals be
                       o The brewery’s offer to provide a human guide.
                 Green v. Housing Auth. OR, 1998 – The only requirement
                  to be classified as a service animal under federal ADA
                  regulations are that the animal be
                      o individually trained and
                      o work for the benefit of a disabled person
                                π is disabled within the meaning of the
                                   ADA, and since federal law does not
                                   specify the extent of the training required,
                                   ∆ has no right to demand a certain level of
                                   training before the presence of the animal is
                In the Matter of Lillian Kline – a court found that harm to a
                  disabled person’s service animal was equivalent to harm to
                  the disabled person
       Under the ADA, the “training” requirement is easily met, but the
          FHA appears to be more restrictive.
                Timberlane Mobile Home Park v. WA. Hum. Rights
                  Comm., WA, 2004 – A pet that is not formally trained is
                  not a service animal.
                      o Under Wa’s analog to the FHA only animals
                           “trained to assist or accommodate disabled persons”
                           qualify as service animals.
                Prindable, 2003 – An animal must be “individually trained
                  to do work or perform tasks” to be classified as a service
                  animal within the FHA. A dog possessing no abilities
                  beyond those possessed by dogs in general does not meet
                  this test, but see
                      o In Re Kenna Homes, WV – (dicta) under certain
                           circumstances, it may be appropriate under the FHA
                           to permit companion animals despite no pet policies
                           when the presence of an animal accommodates a
                           disabled individual.
o Nahrstedt, CA, 1994 – A covenant is presumed valid and is enforced
  unless unreasonable.
       A covenant is unreasonable when it is:
                arbitrary
                substantially more burdensome than beneficial to the
                  affected properties
                in violation of a public policy
o Type of property inside one’s house can’t be dictated by an HOA – they
  can’t tell you whether you can have a couch, but they can dictate whether
  you have a pet – but isn’t a pet property? Why is this sort of restriction
  okay? Discrimination against pet is justified due to concerns about
       bites
       mess, damage to property
       barking, noise
       o It’s probably not legal to discriminate against people who own particular
           types of property. Could you have a rule not permitting people who drive
           SUVs to shop at a mall, buy a home, etc. Yet, there is no question that it’s
           perfectly legal to discriminate against a person b/c they own pets.
       o Granby Heights v Dean, MA, 1995 – Rules promulgated by the HOA or
           similar board banning animals don’t carry the same weight as bylaws and
           master deeds in a planned community.
       o CA Civil Code 1360.5 – Pets within common interest developments
                An owner with a separate interest in a common ownership
                   development must be permitted to keep a pet, subject to reasonable
                   rules and regulations
                A pet is any domesticated bird, dog, cat, aquatic animal kept in an
                   aquarium or other animal agreed to between owner and HOA.
   Divorce, Custody disputes
       o Bennett v. Bennett, FL, 1995 – A dog is property and it is therefore
           inappropriate to permit visitation rights with a dog; a dog is properly dealt
           with through the equitable distribution process.
                The continued supervision of the courts required to police custody
                   disputes over children is already a drain on judicial resources; it
                   would be unwise to create pet visitation rights.
       o Arrington v. Arrington, TX, 1981 – A dog is personal property. The
           husband agreed to let the wife have custody of the dog so long as he could
           have reasonable visitation; the husband is therefore appointed managing
       o In Re Marriage of Stewart, IA, 1984 – A dog is property and is therefore
           not entitled to the judicial privilege of having its best interests determined
           by the court, though a court should not put a family pet in a position of
           being abused or uncared for.
       o Perkins v. Perkins, CA 2000 – A court entertained a lengthy custody battle
           over a dog including appointing an expert to observe the dog in both
           homes in order to make a determination about which ex-spouse would
           make the better of the two caretakers.
       o Courts have made custody determinations in the best interest of a cats. See
           Raymond v. Lachmann, NY, and Zovko v. Gregory, VA, 1997.
       o Brann v. Dalby, CA, 2001 – When a court threatened to sell the animal to
           a 3rd party to halt a custody dispute, one of the parties acquiesced to the
           other’s custody of the pet to prevent the sale.

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