For most of recorded history, the majority of legal systems have regarded domesticated animals as a species of property. Part I of this article reviews the traditional method of valuing animals in tort cases and notes that some modern courts have expanded beyond the classic fair market value standard and have allowed pet owners to recover for the value of the pet to them or even for loss of affection and companionship. Most courts, however, still value animals according to their fair market value, and Part I asserts that this method of valuation produces severe undercompensation of pet owners in many instances. Part II of this article explores generally the development of tort recoveries for “ethereal” injuries—injuries to the psychic and the emotions. Specifically, it discusses the evolution of derivative claims for loss of consortium and society, the abolition of certain claims for emotional distress such as alienation of affections and similar actions, and the increased recognition of claims for intentional and negligent infliction of emotional distress. Part II asserts that the same reasoning that led to an expansion of claims for ethereal injuries dictates that the courts afford some compensation for the emotional loss experienced because of the tortious injury to a companion animal. It also notes that pet destruction cases can be analogized to nuisance claims, for which many states allow recovery of damages for mental anguish. Part III explores the social science literature that documents the emotional importance of companion animals to their human owners. It asserts that a proper system of tort compensation should afford something more than a minimal recovery for the wrongful death of a companion animal. Part IV proposes a new rule of compensation for the tortious destruction of companion animals that will afford a significant recovery to pet owners. Initially, section IV.A addresses the general policy implications of compensating intangible losses in pet death cases and asserts that the fundamental policies of the tort compensation system are well served by recognizing such claims. It explores the tort theories of compensation, deterrence, and reflection of societal values as well as the related remedial policies of corrective justice and economic efficiency. Section IV.B then analyzes the inadequacies of the current legal rules for valuing companion animals, including the fair market value standard and the “value to the owner” concept. Section IV.C elaborates on my proposal to compensate animal guardians in pet destruction cases for both the pecuniary and nonpecuniary components of their loss. In Section IV.D, I respond to possible policy objections to my proposal and demonstrate that these objections can be overcome in a properly tailored compensation scheme.
The Calculus of Animal Valuation: Crafting a Viable Remedy,
82 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol82/iss3/6