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Animal Ownership Law

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Animal Ownership Law

This course offers an in-depth look at how the concept of ownership is treated with regard to animals and their offspring and it provides participants with every key case citation as to ownership rules, animals as properties to be conveyed and transferred, and how value and damages theories affect our application of ownership laws to animal-relate disputes. The cliched proposition that animals are personal properties is simply the jumping off point to a host of more sophisticated analyses about owning such properties and the unique problems that are brought to light by the fact that as properties animals do odd things such as make decisions, independently transport themselves from place to place, and magically compound their value over time. We also consider how animals may be “specially valued” and at the same time keep in mind the realistic comparison of dead animals with dead humans in both applying and misapplying wrongful death laws and valuation schemes.

Transcript

Geordie Duckler - Good afternoon. Today, we will be discussing animal ownership law and considering the concerns, requirements, and themes regarding what the law says about owning an animal and its attendant benefits and obligations. My name is Geordie Duckler and I will be your presenter today. I've been a trial attorney for over 35 years, with licenses in Oregon and California, and I have been actively engaged in both plaintiff and defense side of civil and criminal litigation in every animal-related case of any type you might be able to imagine all across the country, both state and federal courts. I've considered this specific topic about ownership in great detail throughout my career. I have written extensively on it. I've presented several seminars on it. Today, I hope to get you well-informed and up to speed about all you need to know in this fairly interesting area of law. We're gonna focus on the common law in this area but we'll also compare some codified rules and cases around the country in order to get the best handle we can on where all of those things fit into really what is a national conversation about animals.

Now, ownership of personal properties is a very common arena in which animal-related legal disputes arise. The conveyance and control of animals, as well as the custody and the care which people are supposed to have for animals, those impact people both directly and indirectly in all walks of life. In their use and ownership, we know from the outset that animals are what are called, quote, tangible personal properties, i.e., physically movable objects capable of being possessed and conveyed to others. Property laws in general revolve around ideas of care, custody, and control, and of all sorts of objects, and those rules impose fairly distinct burdens and constrain very distinct freedoms on certain human behaviors.

Now, in law, all property has to have some owner somewhere, either privately or through the state. Some properties have their own legal identities and they accumulate explicit rules that adhere to their use, such as motor vehicles, while other properties are deemed to be merely the mechanisms, the infrastructure or the superstructure that makes other properties interesting. They themselves have no special rules applicable to them, i.e., the component parts of a motor vehicle. We are gonna find that animals occupy both spheres, properties with their own legal identities and properties that are simply collateral to ones that have legal identities. The division of property into real and personal creates a functionally significant test as to whether an object's value derives from being manipulated, and more importantly, easily manipulated. The benefit of being easily detachable from the land carries with it the detriment of having attainment and control made more difficult. Control also affects whether the personal property is natural or manufactured.

The latter category being those things such as products and goods that have been intentionally modified by people from natural elements. A lump of clay is, in a sense, jurisprudentially distinct from a vase, solely because of what someone has done to the clay to make it into the vase. Manufactured personal property takes as its presumption that the manufacturing itself, that is, the human manipulation of the natural object, has been engaged in for some reasonable use or consumption in some sense, for food perhaps, or for clothing, tool use, or aesthetic enjoyment. Now, as natural personal properties, animals are connected to those who, quote, manufacture them, which are also their owners, in unusual ways. Government ownership of animals relies on the concept of them being, quote, ferae naturae, a Latin phrase, objects in nature. As long as an animal remains wild, unconfined, and undomesticated, no individual property rights begin to exist in the animal and it solely belongs to the state alone at the threshold. Qualified personal property rights, private property rights, arise in animals when they are legally removed from their natural liberty and made subject to a person's control. We will be talking about this in quite a bit of detail in a few minutes. The qualified private right is lost and it reverts back to the state if the animal regains its natural liberty.

So there, we have this theme of ownership shifting back and forth and back and forth, depending on who is in control at any given time. In a sense, the private ownership of animals is actually a reward one has earned for undergoing the risks involved with restraint and confinement, and for assuming that cloak of responsibility that the state has shed at the moment of confinement. The natural owner is the person who has produced an article, let's say an animal, or who, by a constructively equivalent expenditure of force, has found and appropriated an object, again, an animal. It's conceived that such a person becomes the owner of the article by virtue of that immediate logical inclusion of creative industry, doing work or effort to create something.  For that reason, animals easily become proprietary trade goods. Their use and enjoyment has been bought and paid for and in three respects, that first, wresting of control away from state control, that second, manual labor of actually capturing and confining it, and that third, acceptance, the theme anyway, of accepting personal liability for problems that arise with their use once they're captured and confined.

Again, ownership involves the ability to exclusively maintain custody and control of any object, so that means then, that ability, whether it's real or hypothetical, to control an animal is of great importance to us. For instance, in a family of five, how many, quote, owners of the family dog would we consider? Well, that may hinge on who controls the dog. It may hinge on who the members of the family are in relation to the dog. In conveying, exchanging, valuing, enforcing the use of animals as properties, we tend to find, like with our family example, that animals react and relate and appear in their actual behavior aspect to us as something significantly different and much more difficult than with other standard categories of personal properties, handbags or hamburgers. A heightened appreciation of their composition as living objects doesn't quite solve the problem. Those who, in the law, try to treat animals essentially as simply complicated machines with very sensitive and intricate moving parts still have to confront the issue of unique control of animals regardless.

So two key elements of custody and control of an animal specifically are this. One, in the sense of one's custody or control of a car or a handbag or a hamburger or some other inanimate object, true control of an animal is actually unobtainable. Behavior studies firmly indicate that we can't do such without seriously compromising the animal's own physical and psychological health. Second, custody and control shifts fluidly, frequently, spontaneously between humans and animals far more than it does between humans and cars or handbags or hamburgers. Now, courts that have had to tackle this issue have consistently determined ownership of an animal to operate according to normal property ownership and distribution rules, or at least they start that way. I have provided you in the materials a number of cases across the country, nearly all being family law cases, starting with Akers v. Sellers, to Ballas v. Ballas, Arrington v. Arrington, In re Marriage of Stewart. I think I've provided you about 15 to 18 family law cases in which, although the parties certainly have affection for the family dog or have personal interests in a pet, still, who gets awarded the dog or the cat or the horse or the rabbit has nothing to do with children in the sense of custody, in the sense of the best interest of the child. Instead, it has to do with equitable distribution of property, no differently than other objects that are being distributed between the spouses or between the family members.

Now, I also have 10 quick case citations I think are worth considering for us as to how most jurisdictions deal with evidence and indicia regarding ownership claims. I provided you the citations in the materials, I just wanted to mention each in turn. There's an Illinois appellate case, Buczkowicz v. Lubin, holding that a certificate of registration creates only prima facie presumption of title in a dog and it can be rebutted by other competent evidence. Sandefur v. Jeansonne, a Louisiana appellate case, holds that the long possession of an animal is often strong evidence of ownership. Beard v. Mossman, a Pennsylvania case, gave strong weight, again, to a party's exclusive possession of a dog for a lengthy period of time, considering it to be presumptive evidence of ownership and replevin action. Hoblyn v. Johnson, a Wyoming 2002 case, decided that the minor daughter of a family horse was the one who actually owned the horse, for having engaged with it, cared for it, completed paperwork for it, and held herself ahead of others as the one who could transfer its title. In Milner v. Colonial Trust, an Arizona case from 2000, the court didn't consider that a bill of sale, again, was dispositive, but simply that it provided, again, prima facie evidence of ownership, which could, again, be rebutted, about some cattle. In Gale v. Salas in New Mexico, a very old case from the early 1900s, again, bills of sale and copies of brands were evidence of ownership but not dispositive. Then with Ingraham and Young and Brink and Buczkowicz, we find the same theme over and over again, that sales documents were not conclusive of ownership, that title documents were not conclusive of ownership, even the name engraved on a dog's collar, not conclusive. All of these things are indicia because other factors that have to do with control may have paramount importance. I wanna shift to a quick little aside that is important for us at this point because we are gonna learn that animals, of course, have this unusual capacity to replicate, to not just double their value but to double themselves and triple and quadruple themselves, this unusual capacity to compound their value by begetting other animals out of themselves. Very strange, no other personal property does that.

So the common law has to account for the future production of new animals from the old, the circumstances as to which then affect ownership rights in both the original and the subsequent animals. There is a common law maxim that says partus sequitur ventrem. Translated from the Latin, that means offspring follows belly. Now, sadly, this is a maxim that had been used historically well before the Civil War by racists to use in court proceedings to aid in determining whether children born from parents of both freeholders and slaves were themselves then free or slaves. And the default was that the child was deemed to then hold the status of whatever status the mother held, not the father. Now, while that rule seemed innocuous, at least facially, its application, of course, was in an overwhelming major of cases in which a male slaveholder had impregnated a female slave, certainly often without consent, as opposed to the situation with the genders being reversed. In short, it was a horrid way to deny citizenship rights to the children of slaves, especially to those born as a result of rape. Now divorced from its offensive and deplorable origins, partus sequitur ventrem has been reworked these days to base the general rule that all states still follow, which is that the offspring of an animal belongs to the owner of the mother.

I think I provided you numerous case cites from, let's see, from Georgia through California through Iowa, all throughout the Midwest, Maryland, the east coast, all saying, in a sense, the owner of a cow owns the offspring, the owner of the dam owns the offspring, the owner of the mare owns the offspring. And that continues on throughout that idea that offspring of animals falls to ownership of the mother so we impart a benefit to ownership of a certain type, not of animal, but a certain gender of animal, as well as we put burdens on those who then breed animals and then don't obtain ownership of the mother from which they were bred. Okay, let's shift to problems that ownership disputes often create.

Now, if we look at the case law, an examination of the common law, and the topic reveals it is current actions and activities that determine true animal ownership. This test starts from the unspoken premise that there are these fundamental distinctions between animals and all other personal properties under the law. We've already identified one, which is that ability animals have to independently compound themselves and thus their value over time. There are two others also to fold into our equation. One is that animals have this ability to manifest intent. They seem to be able to make decisions. No personal properties do that other than animals. And then two, the way that they transport from place to place, they seem to have this ability to move themselves independently over distances. Again, there are certainly objects that move, personal properties, all sorts of vehicles that move, but none move themselves, they all require an operator. Now, of course, animals certainly have the ability to do a lot more than just those things mentioned, from barking to biting to all sorts of other actions, but I'm talking only of what us as lawyers find interesting, not us as biologists or sociologists. Cars and houses and handbags and hamburgers, of course, do not act by themselves, they do not move by themselves, they do not replicate themselves, But since animals do, we've got to impart some special legal burdens and legal benefits to those aspects of their ownership. Now, the burdens have both civil and criminal effects. We impose civil liability and criminal responsibility on the owner for any lack of care or harm to the animal, as well as for the animal's own harmful acts against others the owner should've been aware of. Benefits are we are afforded some measure of value for loss or injury by another.

I want you to consider just for a moment an entity called the International Star Registry. You can go on the website and buy a star, name it after a person, all for about 50 bucks. Ostensibly, it's your star, no one else's. You get a very nice certificate demonstrating the purchase. There's no exclusivity to that ownership, of course. You can't really possess what you bought in the sense that you can with most purchased objects. You certainly can't restrict another's access to a star. You can't even prevent them from renaming it, you can't enjoy its attributes, you can't manipulate it. You certainly can't derive any real financial or utilitarian value out of being the star's owner. Really, because of the nature of what stars actually are, ownership rights in stars are illusory, they are entirely artificial. Of course, the registry I mentioned isn't really a star registry, it's a sucker registry. It doesn't register stars, it registers people willing to give money to other people for having their name written down on a piece of paper. It's just a consumer phenomenon that reflects how creative the marketplace can be about disposable income and objects.

Now, on the other hand, there is no International Ant Registry where you could purchase an ant, name it, get a certificate about your ant. There are, of course, about one quadrillion ants in the world so lack of a registry isn't based on any supply shortages, that's for sure. And there's no shortage of people willing to buy them, I'm sure. Finally, the characteristics among and between all the ants in the world are about as negligible as the characteristics among and between all the stars above the world so some special quality of what makes up ants is not the decisive difference either, but ants are treated differently than stars are in the way that our law considers them as legal objects, animals. Ants are definitely a part of those things that allow people to assert ownership rights in a realistic fashion. They are real, legal constructs, not illusory or artificial, so they begin with the putative owner having to take steps to do something. Well, for one thing, to become an animal owner, as we've noted, you have to wrestle physical control of the animal away from the state. You can't just register an ant and thereby officially become its owner. You have got to go out into the wild and capture one.

Now, 200 years ago, the law accepted that if it was in your interest to try and capture and kill some living wild thing, and if you were pretty good at it, you would be assumed to have succeeded in being its owner, or at least the owner of whatever was left of it after you had mortally wounded it. The rule itself predated the 19th century by quite a bit. All of us lawyers know it from law school in a rule called Pierson v. Post. I'll read you the famous quote. Quote, "The mortal wounding of such beast, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within its certain control."

That possession of beast, that sounds a little spooky and it sounds primitive and historically distant, but I can tell you that rule in Pierson v. Post haunts us nearly every day and it is still the law. We, quote, "reduce to our actual possession and control tens of thousands of wild animals over the course of our lifetime". Certainly, these are mostly bugs, mosquitoes, flies, and ants, They aren't very likable, they aren't very big, but they are animals and they are wild and the state does own them and we did pursue and mortally wound them and now we own them because we took the time and effort to deprive them of their natural liberty. So what if our weapon was a fly swatter or a shoe? So what if our hunting ground was a kitchen or a front porch? So what if each time we captured one, we then decided to fold up our hard-earned possession into a tissue and throw it in the trash? Still, for innumerable moments throughout our lives, we are all wild animal owners. Now, there are, of course, some types of animals that we take the time to reduce to actual possession and control which we value slightly higher than others.

One category is domesticated animals. We haven't domesticated mosquitoes, flies, and ants, but we certainly have domesticated dogs and cats and other animals and we give a certain significance to them that distinguishes them from ants. We capture, confine, control, and possess animals all the time, but which animals we do so and which ones belong to us then becomes significant. Again, we have thought about this idea that there is no such thing as a title, as with a car, or a deed, as with a house, for an animal. And we have talked about when there are no formal documents that may go along with an animal, ownership through the common law still has to do with what is indicia as opposed to dispositive, and that has to do with the actions and activities we've talked about before. Even brands or marks or tattoos, those things are only proof of identity of an animal, such as with an ear tag. They are not competent proof of ownership in the evidentiary sense that we worry about as lawyers.

Now, with properties such as cars and houses, the transactions conveying them between people rely on the existence of a market for such items. We feel comfortable using certain documents that reflect ownership and value of a house or a car because there are other consumers in the market that accept those things as proof of valid ownership. There are markets for animals, no question about it, but no uniformly agreed-upon markets, certainly as to value. And we find that as living things that do unusual things, like are born, mature, change behavior, and then die, that makes the initial obtainment and the initial purchase price of an animal inconsequential rapidly in a very different way than with handbag and hamburgers. The animal you buy at one date is a very different animal at a later date, depending on what you have been doing with the animal, what the animal itself has been doing. In that weird sense, animal sometimes appreciate, not depreciate, in value in light of an owner's involvement. Stranger still, owners become less willing to accept value for certain animals over the lifetime of an animal. The St. Bernard that was with a family for 12 years has changed in a sense to become, quote, priceless, compared to the very priceable St. Bernard that was just taken out of the pet store window.

In all this phenomena, let's use an example of a very well-known adult male Great Dane with some special issues, the cartoon dog, Scooby-Doo. He has distinctive qualities that might or might not serve as ownership indicators. The collar, the tag, the fellow that stands next to him, accompanying him with a box of snacks, all of those qualities are our indicia for us to consider. As to the dog himself, he has behavioral qualities, certain reactions to food, certain affection for those who offer it. He has mixed qualities, ones that are manifest and innate. He has a very unhealthy startle response and an astonishing capacity for mimicking human speech. But if we look back two steps as to who made his collar, who fashioned his tag, who purchased his snacks, who walks next to him, who he interacts with, who those people are are all potential candidates as to a claim of ownership of the dog, Scooby-Doo. It might be someone who initially bought him or someone who initially claims him to be their owner. But that astonishing thing about the transformation from owner to owner looks to activities and actions by both the animal and the owner themselves. His actual possession and control is obviously problematic. He has this insatiable appetite, he has a very high anxiety level, he frequently manifests his intent to ignore commands or instructions, and he frequently independently moves himself about the place, proffers his allegiance to one presumptive owner over another depending on circumstance. And while I am not saying that Scooby, his ownership is determined by only one person, I am saying that ownership tests take into account activity by a series of people, all sorts of people that surround the animal, including the initial putative owner, and then later, those who come in and claim ownership rights as well, too. All of those things need to be taken into account. The common law folds into its equation the consideration that whatever a person may have themselves decided about an animal, the animal may have decided something contrary about the person. So that Scooby-Doo effect then looks to what potential owners are doing, not who potential owners are. Put another way, it tends to reduce the importance of human status and it tends to increase the importance of human conduct.

There was a horror movie a number of years ago, starring Denzel Washington, called "Fallen." The antagonist in the movie was an invisible demon who would move from one character to the next, inhabiting a person's body for a brief period of time. There are many movies of that same type, the threats we feel in the cinema to our feelings of innate personhood or personal identity shifting from one to another. The legal recognition of animal ownership accomplishes what that movie "Fallen" tried to accomplish in the horror sense. The idea of not just a weight but there is also some types of benefit that ownership possesses a person, inhabits a person like a specter. That an animal may have several owners in its lifetime is not really more remarkable a statement than that a car may have several owners in its lifetime, but you don't have to alter what do and who you are to become and remain a car owner as you do with being an animal owner and that is remarkable. An owner doesn't lose their rights to an animal just because the animal leaves their premises, but they may lose their rights if they lose their care, custody, and control of the animal, regardless of where the animal physically is located.

The second part of this Scooby-Doo effect then is this, legal ownership in animals is an apparition. It is something that is only granted temporary legitimacy by interaction, not by a document. If you rest or pause in asserting your interest, ownership may flit off you and onto the next vessel. Now, this creates some unique animal law problems. Certainly, one has to do with that idea of an agreement. Now, loans of personal property are agreements. They are forms of bailment, bailment where it isn't a condition that is supposed to have passed but merely a specific period of time. Loans don't normally result in the involuntary loss of the bailed property. People wouldn't engage in them if it did. But then again, most loans don't involve bailed properties that make their own decisions about where they would like to be and what they would like to be doing. Many people think that they bought an animal, discovered, to their dismay, that maybe they only bought an interest in an animal, and many others who think that they found a caretaker for their animal temporarily discovered, to their dismay, that what they actually found was a new home for it instead.

A third problem created by the Scooby-Doo effect is valuation. This idea that there is no socially agreed upon common market means that sometimes animals have what are called special value to particular owners, a measure of compensable worth that does not seem to be consistent from owner to owner. Special value means different things to different people. Insurance companies tend to think of special value as tied to utility in the sense of an animal being like a tool or an instrument. Only if the animal, like a furry machine, does some specially useful act for a human will then they deem the animal to have special value. Others, such as breeders, would like special value to be tied to reputation and notoriety in the sense of a special prize or a special place among other animals. Only if the animal, like a window display, stands out among all other animals in its appearance or breeding will that group deem the animal to have special value. And then owners like special value to be tied to personal feelings, emotions, the sense of a special connection, a special relationship. If the animal, like a child, exchanges love and affection, those people, owners, consider special value to have that aspect. Special value, in other words, is a highly phantom-like aspect to the nature of ownership, depending on who is right. Okay, I want to shift our attention to language and how we use ownership terms.

Some lawyers have attempted to equate animals with children and some have done so by changing the term animal owner to guardian. That push to do so is a political agenda, of course, as part of an interest that many, including animal rights activists, have in trying to erode the concept of animals as objects and invest them instead with the status of people. Now, linguistically emancipating dogs and cats from ownership of course doesn't do much in the real world. It certainly doesn't prevent courts from still imposing liability on people being legally responsible for their harmful acts. Courts have not been fooled by this change in language and so rules about biting and noise and filth and running at large are never restricted to only, quote, owners. They are imposed on people who keep or have custody of or are responsible for or harbor or exercise control over animals, not just ones who guard it. Guardianship versus ownership raises that concept of animal control and now brings into light the idea that it's both people that are being controlled as well as animals as well, too, including by legislation. Control about an animal means, in one sense, being able to dictate its physical location, in another sense, being able to dictate its generic state of health. But of course, we need to do those things. It's not just that we want to, we have to. The construction and use of leashes, collars, muzzles, tethers, halters, saddles, fences, gates, harnesses, those things are as critical as brakes are on cars. Without them, potentially dangerous objects can be transformed into actually dangerous objects. Restraint isn't even limited to simply keeping locomotory movements in check. We need to limit entire bodily systems, excretory and reproductive systems as well. We recognize that until animals can voluntarily control their own bowels, bladders, their own sexual organs, procreation in the very same manner that humans do, then restraint as to those functions is mandated by precepts that devote ourselves towards protecting communal safety, communal health.

Now, we know control can get dicey and can often go off the rails entirely when it comes time to deal with certain animals, including things like wild animals that we have to capture and control to begin with. Rules about personal properties simply don't have anything to do with behavioral manipulation until we get to animals. Were dogs truly to be just like cars, then we would treat their ownership and regulation similarly. We'd have a VIN, a very important number, tattooed on them. They would have a title certificate. There would be a Department of Mangy Vertebrates, a DMV, that would issue licenses and record numbers and titles as documents that would track mileage of the animal, monitor emissions of the animal, register claims about the animal's ownership, and impound and sell them at auction for those that are found abandoned or unlicensed, just as with cars. We know that sounds very odd because we recognize that, while both dogs and cars are owned personal properties, the control of an animal's behavior is unobtainable in the way it is with a car. Those manifestations of intent, those independent motions around the place, very unlike cars, make it so that we cannot actually engage in that control in a very real sense, and all of those control circumstances change over time differently than they do with cars.

Now, it isn't that we can't try to rigorously control animal behaviors. In some ways, we also don't wish to. There are moral implications of us completely controlling an animal that affect us as owners, both circumstantially and socially. In a new idea that these animals are not cars but are belongings, giving equal weight to the two connotations which that term evokes, the practical phenomenon of physically possessing them, the being, and then that longing, that psychological phenomenon of mentally desiring some private enjoyment of them, that arises with some types of animals, certainly dogs and cats, but not others. That idea then comes to the head with the practice of veterinary medicine. Veterinarians, who of course treat all sorts of animals, but primarily dogs and cats, they may employ emotionally assuaging verbiage because of that belonging idea. But in reality, they actually treat animals akin to something like a broken appliance that needs to be fixed depending on parts availability and price and desire. The disparity between the kind words and the stark conduct of the veterinarian is not just a function of how veterinarians need to operate, which, in a sense, is as mechanics and therapists and health professionals all rolled into one, but it is a bellwether for how we think of animals as objects altogether.

Think about this. When one takes their child to a pediatrician, three roles develop: doctor, patient, patient's parent. Since the patient is, by definition, a minor, doctor must rely on the parent to consent to decisions about the child's health and the parent must rely on the doctor as to revealing the propriety of a proposed course of treatment. Every state has healthcare laws specifically supporting that arrangement and those duties. Now, when one takes their dog to a vet, three similar roles arise: doctor, patient, and now patient's owner. And as a practical matter, much of the same drama is still played out. The owner makes core decisions about what is ultimately done to the dog and at what cost. No battery of heavily regulated laws apply to that interaction, however, and what is a legitimate medical practice in the vet's office derives not from a healthcare statute, but from a common law rule on contract and on personal property regarding ownership and conveyance. There are some administrative regulations regarding good animal husbandry practices, and those are intermixed somewhat with a bevy of common law tort rules regarding reasonable standards, but they all have to do, in a sense, with damage and utility of personal properties. Purely as a custom, we tend to describe the dog as the patient, but as a legal matter, dogs don't have any rights that patients enjoy, dogs are objects, not persons. When we view the participants in those respective roles, we find there is a vast legal and moral chasm that separates dogs from other objects and from people.

Nothing reveals that gulf better than pondering the possible range of decisions which can be made in our parallel examination rooms. Imagine the owner and their dog with a vet and imagine the parent and their child with a pediatrician. Now, one cannot contract with a pediatrician to euthanize their child, to destroy or remove parts of the child's body for sale to others, to compel one child to become pregnant or another child to be rendered infertile. One parent cannot employ a doctor to brand or mark their child for identification or tracking purposes. One parent can prevent a doctor from disclosing personal information about their child. A parent can recover for the grief experienced as a result of the pediatrician causing the wrongful death of their child. A pediatrician can't hold a child hostage until the bill is paid. Were a parent to select a less effective treatment for their child or decline treatment altogether simply to save expense, they would be universally abhorred for such a decision.

In other words, the opposite of many decisions and consequences are true with vets and dogs that are not true with parents and children and doctors. Now, as with a doctor, a financial relationship with a vet is not a threshold requirement. There are services that are provided that are gratuitous, unfavorable results doesn't usually establish liability, honest errors in judgment are exempted in both relationships, an expert witness is crucial in both relationships to prove negligent care or treatment, and if conduct is in reckless disregard or grossly negligent, there may be punitive damages. In other words, dog or child, there are a number of parallels between them, but disparate laws impose burdens on dog owners far differently than they do on parents. And yet open and frequent communication between the participants is critical. In fact, almost more critical between vet and owner than between doctor and patient. Emotions always run hot. In exam rooms, there's always a susceptibility to panic over the unknown, there's always that human weakness for assigning blame that can often interfere with just plain reason, and there is an unequal level of education between the parties that tends to disassemble a carefully woven understanding about reasonable treatment.

I want to shift again, now to a new area about tort liability, mention a few rules as to those affecting ownership rules. One is a common law presumption that all dogs are good dogs. Another is a common law presumption that, because of the first presumption, that the bite that a dog makes is something unexpected. We call those first bite rules, some states have them, some states don't, but the idea that because all dogs are presumed to be good dogs, then we are surprised by a bite actually occurring and we give a break to an owner for it occurring because it could not have been expected. Now, that rule changes not just with the shifting of the presumption, but with different tort theories. The idea of strict liability will impose liability for bites regardless of previous knowledge of any sort of dangerousness or viciousness or a previous incident. There are many states that don't have that bite presumption rule, first bite rule, instead have a propensity rule. Even dogs that have a propensity, a likelihood of harming or injuring can have liability imposed on the owner. Ineffective control of the animal by owner often gives rise to tort liability, not just in negligence, but in recklessness and intentional conduct as well, too.

Now, I've given you some case citations for ownership rules in which liability determine is tied to ownership. I have given you the case of Westberry versus Blackwell, that Oregon 1978 case about whether the defendant knew about the dog's dangerous propensities, imposing strict liability, and, in a sense, that proof of any knowledge of propensity to bite or attack, whether it would be in anger or in play, is sufficient to prevail on the tort. That suggests for us that owners need to know their animals very well, far more than simply knowing whether they're dangerous, but even knowing whether they're playful as well. Negligence for a failure to confine or control a dog often imposes liability. I provided you other case cites for that as well, too. Negligence per se is an alternative way of stating the tort. It's where the misbehavior by the dog and the owner has somehow concurrently violated a city or a county ordinance dealing with animal control. In general, cases about liability that involve animals don't often consider the animal simply to be a dangerous instrumentality that delivers harm, such as cars or other machines. They consider the owner to have been folded into the equation as to where the harm is located and where the source is located.

Now, there are more challenging and creative animal-related torts, which is where the owner is injured by the fact of the animal having been injured. An animal, of course, being an item of personal property as it is damage or destroyed then creates economic effects to owners and compensation for others being careless then turns us to thinking about the animal's value. In those types of torts, we consider a claim for the tort of trespass to chattels, that disturbance of an owner's right of possession temporarily of their property. We consider the tort of conversion, that intentional exercise of dominion or control over an animal as an object that so seriously interferes with the right to control it that the responsible party has to pay full value, the permanent loss or destruction of the animal. There are breach of bailment agreements in which the owner's ability to control or use has been, first, voluntarily handed over to another and then somehow impacted adversely. We bring those theories often against boarders or groomers or trainers or veterinarians in particular. There is this idea that was bandied about a decade or so ago about loss of companionship, the idea that sometimes a certain act by an actor, by a potential defendant, can destroy a relationship as opposed to simply destroying an animal or harming an owner.

Oregon had the genesis of that torts evolution in a case called Norwest v. Presbyterian Intercommunity Hospital from the Oregon Supreme Court in 1982. In that sense, comparing the idea of, says under the principles, to use a simple illustration, a child might have a cause of action for solely emotional distress if someone, in order to cause that distress, injured not the child's parents but a favorite family pet. One of the first cases to recognize that idea that a relationship between a person and animal might have its own independent inherent value and that we could perhaps develop a tort based on intentional infliction type torts that have formed through the late '70s and '80s about interfering with other contractual and relationship advantages. That shifts us, of course, to damages, theories, and ownership disputes.

We note that when we talk about the very real aspect of animals, we talk about monetary value, taking animals no differently than taking most living objects and reducing their lives to dollars is a classic game the lawyers play. It's time honored and well tested. No one would complain, of course, that it is immoral or impossible or unrealistic or insufficient to put a price on a plant, that is a living thing, and yet you can certainly walk into a nursery or a botanical garden and, without raising an eyebrow, purchase a fern. The things that you cannot play the game of lives for dollars, of course, is humans. Those are living things that prevent the same rules from being applied. If you tried to walk into a hospital nursery and ask how much it would cost to purchase a child, you would raise a number of eyebrows and it would be immoral, impossible, unrealistic, and insufficient to do that sort of thing, to try and reduce a human life to a dollar, except in one very specialized circumstance and that is in the courtroom in wrongful death cases.

Now, wrongful death law allows many people to be compensated for the fact that another person close to them has been lost or killed. The area of wrongful death law is morally complex. As opposed to fantasies such as the "Squid Game" TV show of recent note, in our society, you really cannot round up several people, put them together in a room, and require that they place a price on a person's life. Now, wrongful death has been shielded from the vagaries of the common law and you will not find the rules for valuing human deaths and lives being molded in judicial opinions as much as you'll find it being in place in statutes. It is the legislatures that have set out the rules as to how to affect the valuation of human death. If you examine the statutory criteria for valuation in wrongful death, then no matter what state, you find some universal postulates, some basic themes that follow these ideas. One, no single human life can ever be scientifically converted into an exact value. That is, there's no math formula, and you will never see an expert testify as to what humans are worth as objects. Two, there's no recognized market for human life. It's not a matter of the lack of buyers or fluctuation in prices or seasonal supply. There simply is no market at all. Three, all human lives have to be valued differently based upon the human that is being evaluated. In short, every person is considered to be an individual with their own unique value personal to them. And finally, four, at least every human life has high value. There is no life, no matter how mean, that is considered either cheap or without value altogether.

Oregon's wrongful death statute provides the same guidelines that are pretty mechanical. It talks about specific categories of compensation available for a human's wrongful death that reflects that list that we just now talked about. The categories are medical and funeral expenses, disability, pain, suffering, loss of income suffered by the dead person between an injury and a death. In other words, the cost of suffering while alive. Pecuniary loss to the estate, that is the cost to others of losing their services, and loss of companionship by a spouse or children or parents, the cost of losing the relationship.

Now, those themes have been spoken on in a United States Supreme Court opinion called Sea-Land Services v. Gaudet. The Supreme Court laid out criteria to be considered as to a right and an amount of recovery for one who is wrongfully killed in what we can call the Gaudet criteria I have listed for you. They have to do the relationships, the continuous living together of the parties, the lack of absence of the deceased for an extended period of time, harmonious relations, common interests and hobbies, participation in family activities, disposition of the deceased to tender aid and solace and comfort, and the ability and the habit of the deceased to render advice and assistance in financial matters. Now, those criteria help distinguish for us humans from animals in the legal sense. If we go back to our idea about both groups, they certainly both contain members who are alive, they certainly contain members who have value, they certainly contain members who can provide services to each other, and even who can have relationships with each other and be psychologically affected by the loss of either.

But when we think of animals, they have the polar opposites as to the previous list. One, single animal lives can be very easily converted into a market value, and they often are. Every time you drive up to a drive-up window to order a hamburger, you are doing exactly that. Two, there is a very obvious market for animal life. Three, particularities have no place. All animals of the same, quote, type are easily treated similarly as if each individual animal was, in fact, identical with others of the same type. And four, animal lives seem to have low value. The bulk are admittedly valueless. Other than as food or commodities, they frequently have more value dead than alive in those circumstances but otherwise can have no value at all.

With that, I think we can advance to the idea that the Gaudet criteria can be employed qualitatively to your own spouse, child, or parent or pet. But where it is used as a qualitative concept, it can be also used as a quantitative one and it has these interpretations. That there are physical attributes, that there are psychological attributes that each have their own dollar value, person or animal. There are translations of what special value is as to fitness for purpose, as to worth to some end, that raise, not lower, the distinction between people and animals, including with this definition of utility, the idea of usefulness. We often consider people to be useful, we often consider animals to be useful, but when they are dead and we are seeking compensation for their loss, utility has a sharp divide, including in the Gaudet test. For instance, harmony, commonality of interests, longevity of time together, do those things include or disinclude utility? Do those things include or disinclude qualities, characteristics, pedigrees? There is a good argument to make that there are elements of the Gaudet test that equally treat humans and animals as the same and there are elements that have to treat them as completely different. When we think of purpose, do animals have a purpose? In one sense, that is a terrible question. It is a loaded sociological revolver whose trigger may be as weighty as a religious belief or as slight as the image from a children's fairy tale. Now, one surprising, or, I'm sorry, unsurprising answer to that question is that animals are objects in nature and therefore could have no more purpose than any other object in nature, a volcano or a mud flat. Natural objects aren't designed by anyone. There is no designer other than evolution by natural selection.

On the other hand, we can't ignore that there is a certain division of animals, notably companion animals and pets, that have evolved alongside us and they are an integral component of all human communities. And in those aspects, physical and psychological, we have actually been crafting them intentionally as well as unintentionally, given over 4,000 years of artificial selection, including for different breeds, has resulted in animals that we have actually created for use. Companion animals are, in a very real sense, organic microcosms of human evolution. They are aesthetic, pragmatic, and social ends that humans have sought for all sorts of natural objects, from maize to riverways, that has just happened to work out the most intimately with respect to dogs and cats. We have come to a crossroads, in a sense, about how to value these natural objects as our companions in different ways than other natural objects. That concept of utility seems to be a hidden plea to see ourselves in that relationship and to look for human values in non-humans.

In translating life into dollars, we look at these objects of value in terms of their irreplaceability, our communication with them, bonding behavior, cooperative elements, and social organizational patterns. It's through the dynamic qualities of the common law that those qualities can be brought to light and maybe valued. Courts across the nation have readily acknowledged that animals are not just owned, but that the damage and destruction to certain types of animals reflects an important aspect of their status in personal property law. Dogs and cats, specifically out of an appreciation of the biology of where companion animals have come from, that phenomenon of domestication has made us both realists and has created illusions for us as to where they find their place in our social exchanges. True domestication of dogs and cats has taken place through thousands of years of hereditary and non-hereditary characteristics being changed, putting them in captivity, enclosing, caring for, training them. That implies that we have made communications and an interchange of emotions with them valuable. We have been engaging in the interchange with dogs and cats for an incredible period of time and there is things in our relationships with them that allow us to engage in bond formation and then allow us to value that bond formation.

For that matter then, whether we are going to treat exotic animals or wild animals or livestock animals or pest animals differently, we won't do so with their ownership. We will still use the same Pierson v. Post rule as to their capture and their control, but we may do so as to compensation for their loss and as to liability to the harm that is brought upon them by others. With certain animals, such as game and wildlife animals, we often actually reward their loss, their destruction. There is an economic value to killing a cow and killing a cougar and killing a pest. With other types of animals, we put burdens upon those who kill or destroy. We often criminalize conduct as to many animals, including the abuse or the neglect of them. And even though that doesn't change ownership requirements and ownership indicia, it certainly does change where we place them in the property concept and where we have categorized them. And with that, without leaving ourselves or them to their own devices, it creates this often expanding and incessant circle of complexity when it comes time to disputing their ownership, to determining their ownership, and to valuing their ownership.

 I think with that, we have reached the end of our presentation. I hope that you have enjoyed it. I hope that the materials have provided you the authority and citations for many of the propositions I have presented. And I hope that as you come to think of these aspects of both the common law and the statutory law and about animal ownership that you think of me, and maybe look to any other materials or references I have to help you with further questions. Thank you.

Presenter(s)

GDP
Geordie Duckler, PhD
Attorney
The Animal Law Practice

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