CBA Record February-March 2019

YLS Special Issue– Diversity of Opportunity

T his is not so surprising when a recent survey shows 95% of companion animal owners in the United States consider their ani- mals to be members of the family. Harris Poll, More Than Ever, Pets Are Part of The Family, https://www.prnewswire.com/ news-releases/more-than-ever-pets-are- members-of-the-family-300114501.html. Animal Protection Laws in Illinois Illinois has been a leader in animal protec- tion. The Animal Legal Defense Fund has ranked Illinois first in animal protection for the past 11 years. Illinois has made an array of advancements set forth in the Pet Trust Act (760 ILCS 5/15.2), the Humane Care for Animals Act (510 ILCS 70/1), the AnimalWelfare Act (225 ILCS 605/1), and even the Illinois Marriage and Dissolution Act (750 ILCS 5/503(n)) where a court shall consider the companion animal’s well-being when awarding ownership in a divorce. In Illinois, for lawsuits involving intentional acts of cruelty or torture to a companion animal, or where the animal abuser’s actions were taken with reckless disregard for the rights of the animal owner (or worse, were intended to harm the owner), damages will almost certainly include emotional distress, among other relief sought by the owner. See, e.g., 510 ILCS 70/16.3 (“Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner,” in addition to punitive damages up to $25,000 per abusive act, reasonable attorney’s fees and costs) (emphasis added). Negligent Injury to Animals While state laws vary in their treatment of animals, all 50 states classify animals as “property.” This classification is a problem in cases involving the negligent injury to and/or loss of a companion animal. Law- suits frequently arise from the negligent

conduct of another during animal board- ing, dog walking, grooming, veterinary treatment, or from the sale of unsafe animal products. In these cases, defendants often cite the traditional, economic valuation of property, or “market value.” See IPI 30.10 Measure of Damages. In a car accident case, for example, the market value of the damaged vehicle would be limited to the lesser amount of either the vehicle’s repair or its replacement. However, for most companion animal owners, their animals have little to no traditional economic value. Their animals may have been adopted from shelters at nominal costs, but their animals are part of the family, and are irreplaceable. For most companion animal owners, their pet has no “market value.”The veterinary expenses to restore the health of an injured animal are typically far in excess of any purchase or adoption expense–and there is no real “replacement” for a destroyed animal. Companion animal owners spend money to enhance their animals’ lives as part of the family. The Pet Industry’s Position Fortunately, the majority of companion animal owners never face legal issues arising from negligent acts of another involving their pets. However, those who do are often shocked to learn not only that legal damages in negligence are limited, but also that the limits are promoted by pet industry leaders. The American Veterinary Medical Association (AVMA), whose members are part of the growing, billion-dollar pet industry, has weighed in on animal valuation in its policy statements. See AVMA, Recovery of Monetary Damages in Litigation Involving Animals, AVMA Policy Statement, https://www.avma.org/ KB/Policies/Pages/Recovery-of-Monetary- Damages-in-Litigation-Involving-Animals. aspx. Despite the AVMA’s unmistakable recognition of animals as family in AVMA advertising that states “We’re Your Other Family Doctor,” the AVMA opposes any

legal recovery of non-economic damages as compensation to animal owners. See AVMA State Legislative Analysis, How emotion-based-non-economic damages can hurt you and your pet, https://www.avma. org/Advocacy/StateAndLocal/Pages/How- emotion-based-non-economic-damages- can-hurt-you-and-your-pet.aspx. The AVMA claims that non-economic damages would increase the cost of care. But it is difficult to swallow the hypocrisy of a veterinarian or animal hospital (or any other animal business), when facing allegations of negligence, to claim that an animal is worth only a nominal amount as mere property, while at the same time collecting thousands of dollars in treatment fees. Indeed, it is the very existence of this non-economic value–the deep emotional connections that veterinary clients have to their animals–that allows for such places to exist. In the words of Professor Steven M. Wise: If the economic value of compan- ion animals was important to their human companions, as is normally the case with sofas, chairs, and other inanimate property, small animal veterinarians could close their doors, because human companions would never bring their companion animals for treatment. Instead, they would abandon them. […] See StevenM.Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal L. 33, 47-48 (1998). Artificial Restriction of an Animal’s “Actual” v. “Market Value” In the 1st and 4th Districts in Illinois, negligence-based cases apply the “actual value to owner,” as opposed to “market value,” standard for damages. Anzalone v. Kragness, 356 Ill. App. 3d 365 (1st Dist. 2005). In Anzalone, plaintiff’s cat was killed by another animal during boarding at a veterinary hospital. The plaintiff sought $100,000 in damages for the negligent loss. Defendant sought dismissal, which

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