22 July 2008

Shifting Legal Views on Animals: Animals are More than Property

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Shifting Legal Views on Animals: Animals are More than Property
Cynthia Hodges, MA, JD

Under current United States law, animals are considered to be personal property. To advance animals’ legal interests, it is necessary to change that property status. There are encouraging signs of a shift in legal attitude towards animals. The old, established rule that animals are personal property is being challenged by a new attitude that animals are more than property.
Courts and legislatures are beginning to recognize that animals are more than property. For example, some courts have recognized that pets generally do not fit neatly within traditional property law principles, but rather seem to belong to a unique category of “property” that has not yet been recognized by either statutory law or case law. Although courts feel bound by precedent that classifies animals as personal property, some courts feel the need to fashion and apply rules that recognize animals’ unique status as individuals capable of thought and feelings.

Tort Damages

The classification of pets as property means that the types of damages available do not adequately address the injuries suffered by pets and their owners. In most jurisdictions, pet owners cannot recover for their emotional distress resulting from the injury or death of their pet, because damages for emotional distress are usually not available for the destruction or injury to personal property. Rather, the measure of damages for injury to, or destruction of, an animal is the same as that of other personal
property. The owner is entitled to the amount that will compensate him or her for the loss and thus return him or her, monetarily, to the position he or she was in before the loss. This will usually be the fair market value of the animal.
However, there are developments in case law and legislation that run contrary to the notion that animals are property. For example, courts are beginning to recognize that there is an emotional injury rather than merely an economic, or property-type, loss when a pet is injured or killed. Because courts are beginning to recognize the emotional relationship between people and their companion animals, they have begun to expand recovery for pet owners to include damages for emotional distress and loss of companionship. For example, Oregon allows for special value damages when there is no market value for an animal.
Some state legislatures have also begun to expand the types and amounts of damages for injuries to people’s pets. Some examples include allowing claims for damages for loss of companionship, emotional distress, and pain and suffering of animals and/or their owners.

Marital Property

Most courts consider animals to be personal property in divorce proceedings. These courts do not usually take into account the best interests of the pet when awarding custody of the pet. Neither do these courts generally award visitation rights to an ex-spouse, because courts do not normally award visitation rights to personal property. Contrary to the general rule, however, some courts are beginning to consider an animal’s best interest when deciding possession of a pet in custody disputes.

Cruelty Statutes

Every state has an animal anti-cruelty statute that provides the primary legal protection for animals. All states prohibit cruelty to companion animals, but a majority of jurisdictions limit “cruelty” to unnecessarily causing suffering to an animal, or the failure to provide food, water, or shelter. Animal protection laws protect only a minor percentage of the animals exploited by society and industry. For example, most anti-cruelty laws do not apply to animals raised for food or used in research.
Despite these limitations, one could argue that the very existence of anti-cruelty laws indicates that animals are more than property. This is because such laws are premised on the assumption that animals can feel pain, and that they should be protected from the infliction of unnecessary pain and suffering. Ordinarily, personal property is not protected in such a way, which supports the idea that animals already have a legal status of being more than property.


In order to further animals’ legal interests, it is necessary to change their legal status as personal property. There are encouraging signs that a shift in attitude towards animals is occurring on the legal front. Some courts and legislatures are beginning to recognize that animals are more than property, and are starting to afford them more legal protection and award their guardians damages for emotional distress and loss of companionship..

One Comment so far...

Yorkshire TerrierNo Gravatar Says:

29 July 2010 at 10:06 am.

I enjoy your article – excellent effort!

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