Quimbee logo
DMCA.com Protection Status

Creature Features: Animal Law

4.9 out of 5 Excellent(25 reviews)
GD
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

Creature Features: Animal Law

This course offers an in-depth survey of the current state of the major topics in animal law and provides participants with the key principles, rules, and regulations – as developed by common law and from statute – affecting animals. Styled as a cinematic presentation, the course examines animal-related laws via their philosophical, scientific, and practical underpinnings, and from a variety of differing perspectives, exploring how the courts have treated animals in the past and will likely treat them in the future, locally and nationally. From the foundational (How are animals defined? Do animals have rights? Why are animals properties?) to the pragmatic (What procedural obstacles might confront claims made on behalf of animals? What substantive constraints might prosecuting an animal abuse case entail?).

Presenters

Geordie Duckler
Attorney
The Animal Law Practice

Transcript

Geordie Duckler -  I have been an attorney doing animal law exclusively for over 35 years. Civil and criminal animal cases, state and federal animal cases, trial level and appellate animal cases, and transactional work on animal cases, as well as litigation. Over that lengthy period I have frequently found that in the interviews of potential clients and explaining legal issues to actual clients to help them make wise decisions, in arguing cases to judges and juries. In fact, in discussing all sorts of matters with opposing counsel, with laypersons, with jurists, it sometimes helps foster good communication about an animal related legal topic by referring to movies. Now, without trivializing any person or topic, and without belittling the seriousness of anyone's claim or their defense, linking a concept to a scene in a movie unquestionably helps relate odd legal concepts to people in a comfortable, recognizable, familiar way.

For example, whenever the topic is arisen about the possibility of a litigant seeking damages for becoming distressed over the death of their pet, and raising therefore the consideration of the tort, intentional infliction of emotional distress. IIED, I have found it's often helped explanation when I mention the rabbit scene in that classic movie from the 1980s, "Fatal Attraction". As you may recall, in the movie Michael Douglas is married to Anne Archer, but gets romantically involved in an extramarital affair with Glenn Close. When he tries to end the affair, Glenn Close becomes quite angry. And solely to hurt the couple, she boils their pet rabbit in a pot in the kitchen for Anne Archer to find when she comes home. Now, the serial facts that, A; Glenn Close isn't angry at the rabbit, but at a person. B; Glenn Close uses the rabbit simply as the conduit through which to severely distress a person. And C; see the act of boiling a rabbit alive is immediately recognized as outrageous. Those are all excellent cultural representations of what IIED probably is in an animal related case.

I wanna spend time today explaining a few animal law rules and in doing so, referring to movies along the way. And I'm not promising any perfect one-to-one correlation between what I explain in any cinematic example, since of course movies come from the minds of screenwriters, not lawyers, and the legally accurate is invariably jettison in favor of the overly dramatic, and sometimes just the absolutely ridiculous. But legal concepts can always use illustration and reflection, and visually there are scenes in movies that may help us as lawyers ourselves grasp certain ancient and difficult rules in a novel manner. Let's start with concepts of animal ownership. Those who claim to own an animal always begin with the bear assertion that, well, they just are the owner. Under the common law however, that is what one would call a necessary, but not a sufficient condition. It is relatively easy to observe that the ownership of animals is fairly fact bound. What is more difficult to grasp however, is just what facts are or not significant to the determination.

In our second movie, the "Muppet Movie", you may have enjoyed the scene where Rowlf the Dog sings a classic song on the piano. And in the song mentions taking himself for a walk, and putting himself to bed, in a sense claiming that he owns himself as a dog. And we laugh at the lyrics and the scene as if it's a simple muppetlicious type of joke, but there's actually a lot of complicated ideas going on at that piano. Folded into Rowlf's short performance are centuries of common law rules, which we know about, but don't often have any reason to specifically articulate out loud. For instance, we know that animals, A; animals aren't legal entities which are able to own anything. B; that people, which is what Rowlf sounds like, don't own themselves as if people were properties. But C; that dogs, which is what Rowlf looks like, are owned properties, yet themselves, D; don't get to be the ones to make the decisions to who their owner is. So reciting the phrase, "Well, dogs are property", that doesn't really help explain much of anything. It actually just raises more questions, kind of like Rowlf's song does.

Property as a legal category has a lot of intricate moving parts, and the ownership of certain properties has its own set of questions attached to it that simply calling something property doesn't answer. For instance, the rules on conveying ownership of a property from one person to another discount the location or the use to the property. In a sense, where the object happens to physically be at any given moment, and what anyone happens to be doing with it at any given moment have no real effect on a determination as to who owns it at any given moment. So saying, quote, "Well, it's my dog "since dogs are property, "and it's sitting right here in my living room, "wearing my sweater", end quote, hasn't really answered anything of legal consequence. And there's a saying that goes, "You can have an agreement with your neighbor "about your dog, but you can't have an agreement "with your dog about your neighbor." Agreements in a sense are simply exchanges of promises, but they require people who know what promises are and what exchanges are. Now, what the second part of that phrase is a philosophical comment on the fact that for promises to work at all they require language. The first part of the saying, "You can have an agreement "with your neighbor about your dog", simply acknowledges that people can and do often exchange promises with other people about what specifically to do about, quote, non people, IE, animals.

So one way for us to truly grasp the intricacies of the ownership concept when it comes to animals specifically, is to ask four questions. These are ones that a four year old might ask, and they seem like they should be really easy to answer, but you know what, they aren't. Here's the four, one, can you own a car? Two, can you own a hamburger? Three, can you own the moon? And four, can you own a person. Now, the first two questions about the car and the hamburger seem to be easily answered yes. While the third and fourth questions, about the moon and the person, seem to be the answer no. But as lawyers, we wanna know why, why are cars and hamburgers ownable things, but moons and people not. To resolve that deeper issue, we need to know what we really mean when we say that we actually own something.

 Well, as lawyers, we know there's four elements to ownership. One, the element of exclusively possessing something, the power in a sense to be the only one to actually physically hold, or manipulate, or operate that thing. Two, the element of exclusively using a thing. In fact, the power to be the only one who can actually do something with it in a way actually affects others. Three, the element of exclusively disposing of a thing, the power to be the only one who can consume a thing, or destroy it, or have someone else have it. And then four, the element of exclusively excluding as to the thing. The power to be the only one who can keep others from doing any of the other three things. So let's go back to our four questions. With our first question about cars, the things called car keys become significant. They enable whoever holds them to get into a car, to make a car work, to make a car not work, to keep others from driving the car. Owning a car makes sense because it comports with our basic concept of what ownership is all about, in the sense that car keys give the concept practical value. With our second question about hamburgers, there are these things called teeth that become significant. They enable whoever holds them to bite into a specific hamburger, to make the hamburger digested or ruined, to keep others from themselves biting or digesting the hamburger. Owning a hamburger makes sense since it also comports with is a concept of what ownership is, and teeth are things that give that concept practical value.

Now, consider our next movie, "Bruce Almighty", where Jim Carrey becomes invested with God-like powers by Morgan Freeman, who apparently actually is God, to ostensibly teach Jim Carrey a lesson about humility. In one classic scene, Jim Carrey manages to use a lasso to rope the moon and pull it closer to earth in order to woo his romantic partner better. The scene triggers in us a reminder that in the real world, with our third question, there just is no functional equivalent of car keys or teeth with respect to the moon. It is a very large, very far away celestial object that you really can't touch. Can't do anything with, can't dispose of, can't keep anyone else away from. So talking about owning it just doesn't make sense since it doesn't comport with the conditions we think about what we think about ownership. Car keys and teeth share a critical quality that Jim Carrey's magical lasso really doesn't, that of control. They are both classic objects that are really tools used to control other objects. Every car key has a unique set of grooves. Every set of teeth has a unique skull and jaw attached to, and those factors make them effective tools of control by a person. No tool controls the moon, so for that reason, other than in the movie "Despicable Me", there's no owning of the moon possible. That brings us to our fourth question about people, which is trickier. You certainly can touch and hold human beings. You certainly can do things with them. You certainly can dispose of them, and you can certainly keep others away from them. So owning people technically fits within all of our criteria. In an act academic sense, a gun would be a type of tool that's like the functional equivalent of car keys or teeth in our thought exercise. Yet the core idea of actually doing those things is abhorrent to most of us, and we have agonized amongst ourselves for centuries about the propriety of engaging in the phenomenon known as slavery, since it raises immense moral issues about whether it is right or not for some people to exclusively control, manipulate, and dispose of other people. And there are all sorts of laws, assault, battery, murder, not to mention the 13th amendment, and by overwhelming social consensus, it is illegal and immoral to do those things to other people. So the answer to that question becomes no, but for entirely different reasons with our other answers.

Okay, let's go to a fifth question, I'm guessing is the one much more interesting to our seminar, which is, can you own a dog? Again, a basic, childlike question, so I'll warn you it'll seem easy to answer yes to, but, spoiler alert, it's a lot thornier than you think. First do a quick gut level comparison. If you had to stick to my list, which the four is a dog most like, car, hamburger, moon, person? And second, before you answer that, do a quick run through the criteria. Can you actually physically hold a dog? Can you do something with a dog that affects others? Can you consume, destroy, or transfer a dog to someone else? And can you keep others from doing any of the first three? In short, is there a functional equivalent of car keys or teeth, or a gun, as to a dog? So as to the gut level comparison, dogs certainly seem far more like people, unlike the other three things on the list. But as you do the run through the criteria, dogs seem a little more like hamburgers or cars, not like the moon or a person. That tension between what people feel in their gut about dogs and about what control is in fact possible with dogs is what gets litigants all tangled up in disputes about dogs.

 

Let's try a different set of questions for a second, and I guarantee you we'll come back to what we're doing about ownership. Let's try these four questions. One, is it a crime to hurt a car? Two, is it a crime to hurt a hamburger? Three, is it a crime to hurt the moon? And four, is it a crime to hurt a person? Now our answers are very different. No, as to one and three, you can hurt cars and hamburgers without violating the criminal code. And definitely yes, as to four. And when we throw dog into the mix, is it a crime to hurt a dog? The yes answer lines up dogs with people way more than with any other choice. We have criminalized certain conduct with dogs in ways that we have not done so with cars and hamburgers, and that restricts significantly the things that we would otherwise do with them as if they were cars or hamburgers. Although they are market goods that are bought and sold by millions every day, there are weirder types of market goods due to ideas of control, consumption, value, morality, criminal conduct, the welfare of others. In a legal sense, a dispute over whether, and how, and who can own a dog should follow the exact same rules as weather, and how, and who can own a car, and many legal disputes do that. But the people who decide those disputes keenly feel that tension I described. Now, some of you might be muttering, "Well, can't a written contract simply say who owns a dog?" Yes, but what that contract says and what those who decide disputes might do about such a contract is complicated, and it's because the object of the contract is a dog and not a car or hamburger.

Now, case law supports that assertion of ownership of animals is prima facial ownership to begin with, but you have got to put something more in place to support it. Surprisingly, possession is not enough. Being the keeper or possessor of a dog is not sufficient to be the owner of a dog. I'll give you the case Young versus Estep, 35 P.2d 80, 1934, Washington case about a monkey. In contrast, the person who resides with, cares for, has possession of an animal over an extended period of time, often is the best in this issue of who is owner, yet still is a fact question. I'll give you the case of Beeler versus Hickman, 750 P.2d, 1282, another Washington case, this one from 1988. True ownership of animals carries with it the dual aspect of responsibility and control. That means the incurring the expenses and accepting the liability for an animal's acts. Control means showing the ability to monitor and command aspects of the animal, and carries with it the right to contract about the animal. That relationship between humans and animals is one where the human is responsible for and in charge of the animals is a complicated one.

In the movie "Masked and Anonymous", There is a scene where Bob Dylan, the singer, skeptically listens to Val Kilmer, the actor, give an amazing speech about the moral and historical disconnect between human and animal interests. As Val Kilmer begins to sound crazier and crazier, going on and on about animals, the camera pans down to show that he is about to slaughter a rabbit to grill on an outdoor barbecue. The audience viscerally flinches when it hears the cleaver come down with a thwack, and it assumes with a shudder that the rabbit, now off screen, has been cleaved in half while it's alive. As Bob Dylan wanders away, he doesn't see what the camera and Val Kilmer however then reveal a moment later. That the rabbit is still alive, and now in Val Kilmer's arms being nuzzled. The external and internal complications raised by that scene include the recognition that we know that people eat rabbits, and we know that there is no law prohibiting slicing rabbits up with a butcher knife to cook and eat. We also at the same time recognize that rabbits can look cute, and that people often keep them as pets, and often have emotional relationships with them.

The scene is visually effective because it involves a rabbit, not a chicken, or a fish, or a hamburger. An animal on the border between food and pet, and it reminds us that human relationships with animals is still all about control. In this case, Val Kilmer's control. The aspects of an animal that can be controlled, can be the animals' own body, organic tissue from the animal's body, like sperm or egg sales. The potential offspring from the animal, a puppy or a kitten, and the behaviors of the animal, displaying it, breeding, showing it. Now keeping in mind there are criminal statutes that prohibit outright abuse, and neglect, and abandonment about some animals. The historical arrangement is humans can really do what they want with them. Eat them, ride them, wear them, house them, work with them, or kill them. All of those categories reveal the animals can be treated as market goods, including as manufactured products. Now, the model Uniform Products Liability Act defines a product as any object possessing intrinsic value, produced for introduction in trader commerce. And historically it didn't consider the animals could be products. But by the late 1980s, there was a recognition that they could be. And Oregon truly opened the door with a case called Seas versus Taylor's Pets, about a skunk sold by a pet store, 74, Or. App 110, in which it was deemed to be a defective product for product liability purposes.

Now, one benefit of owning animals is the ability to transfer our ownership with another person, and those schemes come under the rubrics of sale, gift, lease, and bailments. Now, contract law sets out the rules for buying and selling animals. We have offer, acceptance, meaning of the minds, consideration, performance, all of the compliance with those rules. The statute of frauds, the statute of limitations are important. In the classic movie "Rocky", Sylvester Stallone comes into the pet store where Talia Shire works, and in flirting with her, he buys two turtles. Ownership of the turtles, cuff and link, transfers from Talia to Sylvester without the animals themselves going anywhere or doing anything. That conveyance is accomplished by the words and intents expressed by the two participants, not by conduct by the animals. With the gifts, as to gifts of animals from one to another, we have the four conditions. There has to be a competent donor. Someone who is able to give away the animal to another. We have to have a donor who freely wants to give away the animal. That means they have to have intent, not be under pressure, undue influence, or a financial obligation. We have to have a completed gift with nothing left and done, no strings attached.

Once the animal is moved from one to another, the previous owner can have no role to play in what happens to it. And then we have to have that actual delivery and actual acceptance in order to make the gift effective, In the movie "Bringing Up Baby", Katharine Hepburn tries to give Cary Grant a leopard. She is definitely a competent donor. She definitely expresses her desire to convey with no restrictions because she wants to get rid of that leopard. But the attempted gift of the leopard fails because of Cary Grant, a refusal in a sense by him to fully accept. And of course, because there's always strings attached when dealing with Katharine Hepburn and Cary Grant. In that sense, gifts are functions of parties intentions, and animals again, have a role to play and what people intend to do with the animal, eat, not eat, pet, keep, love as a belonging, as a market, good as a product, whether it's defective or not defective. All of those things come into play in transferring that conveyance. With leases and bailments, those depend on purpose, the purpose of the old owner and the new owner. Leases are general grants of ownership power. We can certainly lease animals, although people don't often think of that. Livestock is a classic type of animal that is often leased between owner and a punitive possessor. Bailment are specific grants of ownership power. For a bailment to be valid, we have the delivery by one to another, but now to be held for a specific purpose and then to be returned when that purpose is completed.

In the movie "Must Love Dogs", Diane Lane and John Cusack meet at a park, each with a dog on a leash. They banter romantically, and then eventually learn that the other is actually simply walking the dog for another, and that neither actually owns the dog which they're holding. A classic romantic comedy setup. Each, Diane and John, are therefore revealed to be bailees of a dog. And of course, to also be deceivers about the true ownership of the dogs that are attached to them. We note in that movie that a bailment is very different than ownership, including sale or gift. Bailor keeps legal title to the animals, so that if a certain conditions do not occur, as in when John Cusack's dog runs away from him, the bailor, whoever owns that dog has rights to come take it back. Bailee, like Diane Lane, gets physical possession and control to meet the conditions imposed, and enjoys limited rights, but can't actually rename it like she wants to in the movie. Now, there are interesting things about bailments. Bailors are normally not responsible for harm by third persons to the bail property.

In other words, if the animal bites or hurt someone while in physical control of John or Diane as the bailee, bailor isn't liable, most likely would not need to be protected by a separate agreement. Two, in standard bailment deals, risk of loss, the bail property is usually born by the bailor. So if the dog runs away, it's bailor who is in the hook. In the particular industry of dog breeders, participants use other words however. They talk about adoption, and foster, and guardianship of dogs. Now, as we know as lawyers, those are completely invalid agreements with respect to dogs. We have very specific rules and statutes about what things can be adopted, fostered, and have guardians, and those things are people and people alone. You can adopt a child, but not a dog. You can be a foster parent for a child, but not a dog. And you can be appointed guardian of a child, but not of a dog. That's fine that in their industry, these folks use those terms on a daily basis.

It's just that a court doesn't recognize them under those descriptors. Instead adopting a dog really is a sale. Surrendering a dog really is a gift. Fostering a dog really is a bailment. In "The Simpsons Movie", Homer makes his son Bart jealous by playing with a pig that he found, claiming that he has adopted the animal in place of Bart. Now, Bart himself may or may not have been actually adopted by Homer and Marge, as in another episode with Millhouse. But in this movie, I can at least assure you that Homer has not adopted a pig under any known rule available as to animal transactions. In the movie, "A day At The Races", Chico and Harpo first pretend to own a horse, then pretend to be the caretakers for a horse, and then just finally give up all semblance of propriety, and outright just steal a horse. Those two remind us that horse ownership, like all animal ownership, can be contentious and problematic. Excuse me, under the common law, it is the actions and activity, not necessarily the paperwork that cements a determination through animal ownership. There is a case from New Jersey, 2002, called Pippin versus Funk 794 2d. 893, that goes like this. While purchase and registration are significant evidence of the identity of the dog's owner, they are not determinative. Circumstances existing at the time must be examined, and the actions, attitudes, and understanding of the suggested owner, owners must be considered as to the dog.

Now, there are a lot of biologically and behaviorally odd things about animals that we know, but as far as lawyers are concerned, this actions and activities tests recognizes three fundamental legal distinctions between animals and all other properties, cars and hamburgers alike. One, animals have this ability to manifest intent, they can intend to do things. Two, animals have this strange ability to move themselves about independently over distance. And three, animals have this very strange ability to independently compound their value over time. Because animals make independent decisions, independently move themselves about, and independently duplicate themselves, an owner who's been dispossessed of an animal's ownership isn't necessarily subject to the rules of personal properties that have been lost, abandoned, or mislaid, the law of implied bailment is employed instead. In addition, the current actions and activity tested determines dog ownership relies upon these three qualities, intent, motility, competitive value. And they reflect the idea that whoever is the owner at one moment in time might change, and a new owner might arise to take their place depending on circumstance. It doesn't look just to the actions and activity by the owners themselves, the test looks to the actions and activities between the owner and the animal. In fact, it reduces the importance of status, and it raises the importance of conduct.

 Now, in the movie, "Strange Brew", Rick Moranis and Dave Thomas are asked by the police for help stopping the bag guy's secret plan to take over the world by placing a mind control drug in beer. As if beer needs a mind control drug, Rick and Dave find their beer drinking dog, Hosehead, who resembles a large skunk, and they ask the dog to invade the party where the beer is being served, to stop the plan. Enticed by beer and sausages, Hosehead runs down the street and flies through the air to the celebration, where he crashes and scares everyone outside and stops the plan. Our heroes save the day by knowing the right trigger words to make their dog fly. And their ownership is likely confirmed by employing that trick. The scene is a fantasy about control, since some practical truths cannot be ignored about controlling animals. True control is a losery, it's unattainable in a practical matter. Behavioral and physiological studies show that absolute control over any animal would unavoidably compromise its health. And control is dynamic, it's specific over the life and circumstances of an animal.

Just because some aspect of control may be established at one time, doesn't mean it's always in place under all circumstances. The divestiture of ownership is different with animals than it is with other forms of property. Abandoned property rules for instance, define abandonment by an owner as the voluntary relinquishment of a right, or a claim, or a possession, with an intention of not reclaiming or resuming possession. With abandoned properties, the finder is considered to have primary position. To find true abandonment there must be an active abandonment. With animals however, abandonment is not nearly as synonymous with a concept of loss of control as it often is with a concept of loss of possession. A relationship between an owner and their animal may survive the attempt to abandon the animal. Does the failure to care for an animal constitute abandonment? Is the only question whether the owner is abandoned the animal, or may the law allow us to ask that an animal can abandon the owner? Society treats abandonment of a dishwasher and the abandonment of a dog with very significant distinctions. Now, animals can be distinguished from other forms of owner properties via socially approved indictia, actions and activity of the owner, and burdens of benefits of animal ownership. And that phantom like nature of animal ownerships is a spooky concept that has been with us for well over 200 years. I recite to you the rule in the case called Pierson versus Post, we all know it from law school, a New York case from 1805. Quote, "The mortal wounding of such beast "by one not abandoning his pursuit, "may with utmost propriety be in indeed possession of him. "Since thereby the pursuer manifests "an unequivocal intention of appropriating the animal, "the individual use has deprived him "of his natural liberty, "and brought him within a certain control", end quote. By the way, that rule over 200 years later is still the rule. I can cite you a Texas case from 2008, almost literally saying word for word the Pierson V Post rule.

I want to take a short detour for a minute as to classification of animals, because that's gonna help us determine in a sense how we go from things like ownership to things like liability. There are three distinct classification schemes that create confusion for us as lawyers. There is a political scheme, there's a cultural scheme, and a taxonomic scheme, kind of the scientific version. The first, political, involves statutory or legislative categories that recognize fundamental differences between animals and other properties, but are not quite sure what to do about those differences. Politicized classifications schemes often distinguish animals by their use, or by their effect on people, or maybe the absence of their use or effect. One would be predatory, noxious, dangerous, vicious, pest type animals. A second would be livestock, or farm, or meat, or market type animals. A third might be assistance or service animals. A fourth would be domestic or companion type animals. A fifth would be fighting animals. A sixth might be neglected, abused, abandoned animals. And a seventh could be dead animals. Sometimes those types of political classification schemes focus on the physical location of the animal. For instance, game, or wildlife, or exotic animals often have to do with where that particular animal lives.

A second scheme, cultural, comprises popular divisions of animals based on historical and social qualities that people have assigned to certain animals, again, relating to both use and location. These aren't necessarily codified however, cultural classifications may mimic or stray far from, or entirely disregard political divisions. Yet altogether, they comprise the non-scientist, non-lawyer attempt to make cultural sense out of a complex biological world. The four divisions in this scheme seem to be, one, pets, as in dogs, cats, fish, rabbits. Two, a thing called zoo animals. We know what it is, but we don't have a good definition politically or scientifically for what it is. Three, farm animals, and four, wild animals. As I say, there's some overlap with the political system. Cultural classifications are fortuitous. They're in constant, sometimes their even nonsensical. That said, one is much more likely to find them employed by jurists and jurors, and other lawyers and witnesses than any other scheme. At least for the time being, as we litigate an animal case. They're developed and reinforced through childhood and early education, neither political or cultural classification schemes however, are all encompassing. There are enumerable animals in the world simply not addressed in either. From earthworms to blue whale, and lots in between.

So that third scheme, the taxonomic, is the scientific system of organization and nomenclature that at the very least does try to encompass all animals. And it does so based on anatomical, behavioral, physical zoo, geographical, and evolutionary characteristics. Taxonomy, as we know from science class, uses nested groupings, each division falling within the other, from kingdoms down to species. Now, while an organism's physical location has a little bit to do with its role in the taxonomic seam, it's not much. The relations between people and animals have absolutely no effect. In other words, where an animal is placed on the taxonomic chart is actually entirely independent of the activities or concerns of people. And especially people about that animal. Taxonomic classification is the least utilitarian. Neither the political or cultural schemes utilize any national groupings, they are very artificial, they don't reflect nature. The majority of the categories in the taxonomic scheme are also artificial, other than species.

To put in another way, dog breeds aren't natural groups, nor are dogs and cats together, nor are dogs only as pets. But canis familiaris, the common dog, is a naturally occurring group. Domesticated animals is contrasted with wild animals, don't form natural classifications. The legitimacy of that grouping is simply subjective. It's founded on whether a certain group of people in a certain geographic region or a certain political jurisdiction at a certain time consider a certain set of animals to be tame or not. That's what a wild or a domesticated animal truly is. But of course, as lawyers, we've got to rely on both the political and cultural schemes. Both from the codified sections we read in our statutes, to the ways that people in our courtrooms actually envision animals. And that includes as properties, and is applying evidence rules to them. Political and cultural schemes are in a sense static, and they do change, but not frequently, they become outmoded easily. At least the taxonomic scheme is dynamic, it changes as animals themselves change.

I wanna put all that together into a case from Texas in 2016, called Union Pacific Railroad versus Nami. The facts are fairly straightforward. The plaintiff, who was an employee of the railroad, was operating some equipment in Texas, in a town known as the mosquito capital of the world. He was regularly bitten repeatedly by mosquitoes as he worked, never received any warnings from his employer about illnesses. Was unaware of the risks of the West Nile virus. Took no steps to avoid being bitten. Suffered of course some symptoms. Was diagnosed with West Nile virus. Sued his employer for failing to provide a safe workplace. And in the verdict he obtained a trial was reversed on appeal. And in that case, the idea was, well, we're gonna classify animals in ways that scientists probably don't. Here's one of the sentences from the holding. "Human dominion over animals entails "under the common law responsibility for their actions "in some circumstances, but not in others. "The common law divides animals "into animals domitae naturae, "that is tame or tamed animals. "And animals ferae natrae, that is wild animals, "usually found at liberty." We will treat insects as wild animals. Broadly speaking, the owner of a domestic may be liable for dangerous propensities for which it knows. While a person who owns, possesses, or harbors a wild animal is strictly liable for its actions. As the court goes on to determine in a sense who is responsible for mosquitoes, they bring up our topic of both ownership and control, and they use the classification schemes to do it. Determining that under the doctrine of ferae naturae, a landowner just isn't liable for the acts of wild animals occurring on the owner's property. This is how the employee then loses his case on appeal. Because the landowner, the railroad, didn't actually release or allow wild animals like mosquitoes to be in the area, then they're not responsible for the actions or the activities of the wild animals.

This is a rule that under the doctrine of ferae naturae, a scientist would disagree with. And yet at the same time, the codified law sometimes just doesn't explain or articulate. And so we have to turn to these politicized and cultural categories. Classifications is how we view who has duties of care to protect from things like wild animals. As opposed to, or in contrast or comparison with defects on a property. In a sense, what we think about from that case is that animal owners are cloaked with benefits and obligations by virtue of their ownership, and are subject primarily to their rules affecting personality and trade. Animals certainly can be and have been owned, bought, sold. They're considered to be products on the market. They can be equipment, or tools, or sources of food, or raw materials, and they can include even the idea that there is no control over the ones in certain areas that we consider to be culturally wild. Even if let's say science might disagree with us. That idea of basing sometimes their ownership, sometimes their possession, and sometimes their condition on what it is that someone has either a legal right to do with them, or would not actually be able to do with them is what leads us then into the area of tort liability. And that's where now I want to go next.

Now, as we look at tort issues with that rule, theories of liability where the animal is injured, as well as where the animal does injuring, we can identify all sorts of liability injuries. Negligence, conversion, trespass the channels. We've talked about IIED. Where the defendant is a veterinarian, we can talk about professional negligence, IE, veterinary malpractice. Where the defendant is a landowner, we can talk about animals as dangerous conditions. Negligence in a sense means that not taking care of the animal when you have an obligation to. In one scene of the movie "Napoleon Dynamite", John Heder tries to feed a lama named Tina, and he miserably fails. His efforts in that scene signal that in caring for animals, their by definition animals on both sides of each fence. The non-human with no obligations at all, but cloaked with a variety of protections and tort liability theories, and the human with a serious set of obligations to have to use to protect the animal. And the interaction between them dictates whether the obligations imposed are actually being fulfilled or not.

 In the movie "Dr. Doolittle", Rex Harrison is a vet who treats his animal patients by talking to them in order to have them explain their symptoms, and thus help him diagnose their condition. What Rex Harrison does not do however, is consult the other side of the fence, the animal owners. And for that, he has to be faulted, since an owner's control over the nature and extent of their animal's treatment is what the owner is as to any owned personal property, it's greater than with respect to the treatment of humans, things that are not owned objects. An animal owner may select or decline treatment for an animal. They may select a less effective treatment. They may base a treatment solely on an ability to pay an expense. They may choose to have an animal destroyed, euthanized. They may forego for their treatment. None of those things are things that can happen with a person. And people not being owned objects, cannot make decisions to destroy or financially limit or restrict the treatment of another person. Government aid and entities and their agents can be held responsible for injuries to animals as well under tort liability theories. And statutory immunity for their actions often arises with emergency or safety situations. In the movie "Lake Placid", Bridget Fonda, a paleontologist, and Bill Pullman, a county sheriff, need to stop a 40 foot killer crocodile from eating their entire town. They decide to do so in one scene by sacrificing a cow to the crocodile in order to kill the crocodile. While their plan spectacularly fails, the emergency circumstances and the police power held over domesticated animals by local governments would certainly qualify their decision as one immune from liability. And would prevent the cow's owner, who in the scene watches horrifically as the entire disaster unfolds, from herself holding the county liable for her beloved animal's destruction.

Now, you're really not allowed under movie law to even talk about negligence, or the negligent failure to control an animal, without at least mentioning the worst controlled dog in the entire history of cinema. And that is in the movie "Cujo". "Cujo" is pretty much two hours of Dee Wallace being terrorized by a rabid St Bernard. The match between them is a classic cautionary tale, reminding us the animal owners, including Cujo's, have a duty to take reasonable precautions to prevent the foreseeable risk of injury to others nearby. Classic case in that respect is Kathren versus Olenik, 46 Or. App. 713, that's a 1980 Oregon appellate case. County and city ordinances often set that standard of conduct, and define what is reasonable for an animal's control. And liability can be cemented if the violation was the cause of the injury, the plaintiff was within the class intended to be protected by the ordinance. And the plaintiff's injuries were within the area of risk intended to be avoided by the ordinance. Strict liability exists as a theory for any animal, including exotics or wild animals, or where a defendant knows about an animal's previous dangerous propensity and doesn't warn another about them. Landlords can be held liable for injuries to a third party from attacks off of property by animals if the landlord at the time of entering the lease knew or consented to such activity. Again, an Oregon case sets the rule. Park versus Hofferd, 315, Oregon, 624, again from the Oregon Supreme Court, 1993.

I wanna move to the differences between humans and animals as to valuation for a second. As we think about our tort remedies or our tort theories, we need to consider valuation. Valuation has some similarities to begin with, when we talk about the death or the injury of an animal. There are similarities between human and animals in the sense that both groups exclusively contain members who are alive. The members of both groups can have value regardless of a market for them. The members of both groups can provide services to others. The members of both groups can have a relationship with others. Including that in that scheme, others can be psychologically affected by the loss of a member of either group. But the differences are profound. With humans, no single human life can ever be scientifically converted in to an exact value. We know that, and we definitely know there's no recognized market for human life. All lives must be valued differently based upon who is being evaluated, and each life has high value. I wanna test my microphone for one second, and see if this makes a difference as to what I'm saying. Okay. The differences between humans and animals as to evaluation with animals is that they are almost the opposite as to the four I just mentioned. About converting into a value, about market, about lives being valued differently, and each life having high value. With animals, single lives can be easily converted into a market value, and often are. There is an obvious market for non-human animal life. All animals of the same type are treated as if each individual was identical. And each animal life often has low value overall.

Now, the monetary value of animal lives can be modeled maybe on the wrongful death statutes, and those statutes often come from or informed by United States Supreme court case called Sea-Land Services versus Gaudet. It's 414, US 573, from 1974. The Gaudet test has eight factors. One, the relationship, husband and wife, parent and child, some similar relationship. Two, the continuous living together of parties after, prior to the time of the death. Three, the lack of absence of the deceased for an extended period of time. Four, harmonious, marital, or family relations. Five, a common interest in hobbies, scholarship, art, religion, or social activities. Six, participation of deceased in family activities. Seven, the disposition and habit of the deceased to tender aid, solace, and comfort. And eight, the ability and habit of the deceased to render advice and assistance in financial matters. Now, if we apply those eight factors of the Gaudet test to an animal, let's say a dog that belongs to a person. Some of those factors work. The continuous living together is a good criteria to maybe assess the wrongful death of the dog. Perhaps even the harmonious relation between the owner and the dog. The participation in activities. And definitely the disposition and habit to tender aid, solace, and comfort. But as to other elements, they make no sense at all. A dog has no relationship as with a husband and wife or parent and child with a person. A dog can't have a common interest in hobbies, scholarship, art, religion, or social activities. And of course, dogs have no ability to render advice and assistance in financial matters. In other words, the Gaudet test is a litmus test for the fundamental differences in which how we value people, as opposed to how we value animals in the way that they interact with each other. Now, as to how dogs begin, the presumption is that they're all presumptively good. That is a common law rule true throughout the country. There has been some erosion of that rule.

Some courts have considered applying a concept of innate viciousness. In other words, turning the presumption on its head to say that for certain breeds they are legally presumed to be vicious, not presumed to be good. Dobermans would almost certainly fit the criteria that those courts have considered. And in our next movie, "Resident Evil", a laboratory working with an experimental virus shows in an early scene that one of the scientists operating in the lab has two doberman's pets in his office. Later in the movie, when the dogs later become infected, the hero, Mila Jovovich, encounters them. And without delay, assumes that they are innately vicious and must be killed. That ensuing battle between Jovovich and the dobermans is a classic illustration of both action cinema and of our presumptions about breeds of dogs. We imagine there would be no conflict or entertainment that could have arisen were the dogs chihuahuas. And in some ways, what type of dog we're considering affects both our knowledge about their value and about their behavior.

There is a new tort being developed, called negligent confinement. It comes from livestock cases from the Midwest throughout the mid '90s. The idea that an owner can place an animal in confinement, that they should know the confinement might be effective or ineffective. That the confinement is a type from which an owner can reasonably foresee that an animal might escape. And then the animal escapes, the owner takes no reasonable steps to recapture it, and the animal then hurts someone. That type of tort expands owner's specific obligations to their communities, and animal guardians don't get to evade that obligation simply by being called guardians. And animal owners don't simply get to evade it by saying they have a relationship with animal, they in fact have relationships with other people as well, including neighbors, on account of having animals.

All sorts of animals have been negligently confined in the movies, but of course, not as carelessly as when they are the subjects of poorly designed scientific experiments. For instance, in the movie "Altered States", the negligent confinement of a monkey triggers a series of terrible decisions by William Hurt to immerse himself in his own scientific experiment. And at the end, change the very nature of reality itself. Now, I want to recall those three weird attributes that animals have, but that cars and hamburgers don't. Recall that, one, they can manifest intent. That is they can independently decide to do stuff right out of the blue, all by themselves, with no assistance by a person. Cars and hamburgers don't have intentions, nor any way to express an intention. Two, animals can transport themselves. They can independently move themselves around from place to place without the need for any person to operate them like a car. Cars and hamburgers simply can't do that. You put them in one place, and they stay where they are until they're operated. Three, animals can replicate. That is magically a bunch of smaller dogs can come out of a pair of larger dogs. Whereas other hamburgers simply will not magically come out of other hamburgers, no matter how hard you might try to make that happen. We have noted that those three strange attributes affect an owner's ability to control an animal. They also affect the value of an animal, that an animal has to an owner in fundamentally distinct ways from how control and value works with cars, hamburgers, and with people. You may notice we sort of skipped past a specific question.

Is there are a functional equivalent of car keys, or teeth, or a gun with respect to a dog? Well, that's because there's no good answer to that question. Any zoologists or animal behaviorists will tell you. Leashes, muzzles, collars, fences, whistles, clickers, voice commands. Those are also certainly used by people to control certain animal behaviors, and with alterations of the reproductive tract, people can pretty much control replication, but there is no effective or comprehensive way of controlling the intent or transport factors without physically harming an animal. Nor, with dogs, would we want to. Since much of our dog valuation stems from dogs being able to do those things, we like it that they often behave spontaneously, and run about the place and make puppies.

The possession of beast from Pierson V Post is a spooky rule that us in animal law cases every day. Every day and in the real world, we, quote, "Reduce to our actual possession control thousands "of wild animals", and we do so over the course of our lifetimes. Now, they mostly are mosquitoes, flies, and ants, but the fact that they aren't likable or big, wild animals changes nothing. The fact is even mosquitoes, and flies, and ants are animals, they were wild. They were owned by the state at one time, we did pursue and mortally wound them, and we took the time and the effort to deprive them of their natural liberty. So ownership came down upon our shoulders at the moment that we did so. So what if our weapon was a fly swatter or a shoe, if our hunting ground was at kitchen or a porch? So what if each time we made our capture, we then decided to fold up our hard earned possession into a tissue and thrown into the trash. Those things, use and location as we know, don't matter when it comes to the rules on ownership. For innumerable moments throughout our entire lives, we are all wild animal owners.

Now, some types of animals that we take the time to reduce to control and possession, we value higher than others. Livestock, some game animals, definitely domesticated animals, we value higher. They have utility to us. They have financial and economic benefit. That we haven't domesticated mosquitoes, or flies, or ants, but we certainly have domesticated dogs and cats. And even though we have become their owners under the Pierson versus Post capture rule, we impart a social significance to those types of animals, distinct from flies, and mosquitoes, and ants. And it's all due to that domestication relationship. In other words, a lot of our animal related rules look back in time. They look back historically and even pre historically to the concept of domestication, and the relationships that we have fostered with certain species of animals. Some dogs and cats, in which we place them inside our homes. Some, cows, horses, sheep, goats, pigs, chickens, in which we place them outside our home because of their utility as food objects. Some as recreational objects, like with game animals. And then others, the adverse. Pests, things that we actually want to eradicate or destroy to protect things like our crops and our agricultural produce.

The final movie I will mention is one starring Denzel Washington, called "Fallen". Is a movie in which the antagonist, and note I'm not identifying a specific actor, is a film version of a demon. Turns out to be an invisible demon who moves from each character in the movie to another. Taking over a person's body for a brief period, before moving on to inhabit the next. The final possession of the movie in the closing scene is of a cat, which seems appropriate, given that many cats are often prone to seeming to be possessed of demons under certain circumstances. Now, that theme in "Fallen" is a common theme in science fiction and horror movies, the possession of the inner interests of a person, which is at both one and the same time real and phantom like. Movies like "The Thing", "The Hidden", "Invasion Of The Body Snatchers", a hundred other creepy tales, prey on concert that we have about our innate personal identity.

Not just as a weight, but also in part as a reward, animal ownership possesses a person, inhabits them like a demon. Owning an animal, including and especially a dog, is the invasion of one's personal identity, but is an invasion that is unusual, in which we invite it. There is historical precedent for it. There is value attributed to it. There is consideration in the agreements about it. And we find in dogs a difference, not just with ourselves, but with other objects and other properties. Now, that an animal may have several owners in its lifetime is no more remarkable statement than that a car may have several owners in its lifetime. But you know that you do not have to alter what you do and who you are to become and remain a car owner as you do with being an animal owner. While an owner does not lose their rights to an animal just because the animal leaves their premises, an owner may lose their rights if they lose their care, custody or control of the animal, regardless of where that animal is. Legal ownership in animals is an apparition, a specter that is granted temporary legitimacy by the interaction of the animal and the person. Ownership, as we have seen, hinges not upon a title or a deed, a sum of money, a document, or a written statement. It hinges on interactions, it hinges on conduct, not status. If you rest in asserting your interest, ownership may flit off you and onto the next vessel just as the demon does in "Fallen". You are not cloaked with it as a privilege because of who you are, a child, a spouse, a consumer, you are cloaked with it is a reflection of what you do instead, and what you have done lately.

With that, I think I will end our seminar. I hope that you have found this to be entertaining and enjoyable, and the materials I have provided you, I have provided statutes to reflect some of the tort liability theories, some common law cases that indicate those current rules. I've given you the citations for some of the liability elements, and certainly some of the valuation theories. And as to property rights and animals, some of the citations there still are the rule, even though they look like they might be a little ancient. I hope that you keep in mind how animal law relates to property law, contract law, tort law, but at the same time, how it also relates to criminal conduct and liability theories that might actually affect us as people in ways that other personal properties don't. And in doing all that, that you also enjoy the movies. And the movies not just in which animals occur in the scene, but also in which people interact with animals, that give us some insight into how we deal with animals in our social and our legal lives. And for that, I will conclude, thank you.

Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

HandoutSupplemental Materials

Practice areas


Course details

On demand
1h 4m 30s

Credit information