Loss of Companionship as Compensable Damage in the Tortious Death of Companion Animals

By Joanne M. Finegan

Courts and legislative bodies around the country have considered various causes of action and ways of compensating the aggrieved owners of companion animals, or pets, who are killed by the tortious acts of another. Veterinary negligence, conversion, hunting accidents and deliberate acts have all been the basis for lawsuits as well as the impetus for legislative action to devise an appropriate method of assigning a dollar amount to the loss suffered by pet owners, or guardians.

In computing damage awards when companion animals are wrongfully killed, courts and legislatures have traditionally applied as a basis the concept of loss of personal property, that is, fair market value. Maryland has codified this approach in the Courts and Judicial Proceedings Article, Section 11-110, “Damage for injury to pet”. Capping total awards at $7,500, the liability of one causing the wrongful death of a pet is the fair market value of the pet and the reasonable and necessary cost of veterinary care.

How courts in Maryland have determined market value is not ascertainable because the limit on total awards has kept these cases out of courts of record and out of the appellate courts. In some other states, courts have included such factors as purchase price, age of animal, its training, usefulness and desirable traits.

None of these factors, however expansively applied, address the actual value of a pet to its owner, and that is its value as a companion, a friend, and to some, a member of the family. In Morgan v. Kroupa, the Vermont Supreme Court commented that a pet’s worth “is not primarily financial, but emotional; its value derives from the animal’s relationship with its human companion.” And the Wisconsin Supreme Court, in Rabideau v. City of Racine, sympathetically noted that “labeling a dog ‘property’ fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property…This term inadequately and inaccurately describes the relationship between a human and a dog.”

As summarized in 1998’s “Damages For Killing or Injuring Dog”, a 100-year-old decision from Missouri perhaps best states the essence of animal companionship: In Klein v. St. Louis Transit Co., the court declared that, where the dog owner prized his dog very highly, took pleasure in its company, and was proud of the smart things the dog could do, the jury, in assessing damages, might very well take into consideration the owner’s loss of the dog’s company and the owner’s deprivation of the amusement and pleasure the dog afforded, as well as the dog’s pecuniary value. And the New York City Civil Court, in 1980’s Brousseau v. Rosenthal, acknowledged the companionship and protection that the widowed Plaintiff, appearing pro se, lost with the death of her canine companion of eight years. That court also found that the difficulty of pecuniarily measuring this loss did not absolve the Defendant of his obligation to compensate the Plaintiff for that loss, “at least to the meager extent that money can make her whole.”

Even while considering that companionship is the utility or actual value of a pet, most courts do not recognize an independent cause of action for loss of companionship. An emphatic Pennsylvania Superior Court, in its 1988 Daughen v. Fox decision, declared that under no circumstances may there be recovery for loss of companionship due to the death of an animal. Companionship, the court observed, is included in the concept of consortium, which is a right growing out of a marriage relationship giving each spouse the right to the companionship, society and affection of each other in their life together.

The trend of modern tort law has been to expand liability in an effort to compensate those injured by the wrongful conduct of others. Recovery is generally limited to the injured person, except when there is a legally-recognized relationship, such as marriage. Then, the law may recognize a claim for damage to that relationship due to the harm done to one of its members. The lack of a legally-recognized relationship between a companion animal and its human guardian, not to mention the inter-species nature of the relationship, may thus remain uncompensated by the courts upon the death of the animal partner.

Joanne M. Finegan, Esquire, is a founding member of the MSBA Animal Law Section.