1. Pet-owner - April 27, 2007 at 5:43 pm

   Frank, i’m curious – do you have any pets? For some people, their pet is the only companion they have (and maybe a pet that they have raised from birth). Does it seem fair to compensate someone only the $40 (common adoption fee at many pounds) for losing their beloved pet of many years? The work in raising, training and nurturing a pet (not to mention worrying about them, taking them to the vets, parks, etc.) is surely similar to the effort put in by many parents with their kids.

   There have been studies done that pet-owners derive great benefits from having pets (things like lower blood pressure, less incidence of depression, etc). This indicates a reliance on pets as more than just disposable objects. Pets must be recognized as more than just furniture that can be replaced for the purchase price. Maybe not to the same extent as humans, but certainly to a much greater extent than they are now.

2. Patrick S. O'Donnell - April 27, 2007 at 5:54 pm

   Frank,

   This is a motley topic and your post raises many issues so let me just touch upon a few. First, I agree that sometimes people can be a bit over the top when it comes to attributing human characteristics to our non-human animal friends, however, not a little bit of reseach has suggested the gap on this score is not as great as we used to think, particularly when we are speaking of consciousness and some emotions. Secondly, religious traditions of Semitic origin have often historically exaggerated the gap between non-human animals and those created in “God’s image,” understandably insofar as the motivation was to account for why human beings are thought to be unique or in some measure stand apart or “above” the rest of creation as the latter is understood in a naturalistic sense. The moral status of animals was not until comparatively recently thought to be much of an ethical or philosophical concern or issue worthy of attention. Things began to change with the likes of Henry Salt (Animals’ Rights Considered in Relation to Social Progress, 1892; see: http://www.henrysalt.co.uk/index_old.html) and increasing exposure to and appreciation of Asian traditions (by way of notions of samsara and karma, including consciousness) that tend to emphasize our kinship with nonhuman animals while at the same time conceding that, ethically and spiritually speaking, there is something unique or exalted about humanity (in both Hinduism and Buddhism, for example, only humans can achieve liberation: moksa or nirvana [diacritics unavailable).

   One need hardly worry about a slippery slope of the sort you mention (seems like a straw man, in other words) when we're still rather conflicted about our understanding of non-human animals. For instance, while people get rather close ('attached') to and love their pets, they see no inconsistency with such displays of affection alongside other behaviors, like sitting down to the dinner table to dine on animals that were raised in an appallingly inhumane fashion and often killed in a no less barbarous manner. In other words, few people evidence any concrete concern with other animals, some of which are quite intelligent: swine, or crows, for instance.

   One problem here is that many people imagine a re-consideration of our ethical relations with the animal kingdom to involve a conflation of non-human and human animals in a way contrary to the spiritual teachings of the great Abrahmanic traditions. However, we could fundamentally alter our ethical practices with regard to non-human animals while maintaining an ethical and/or spiritual distinction between the species (there are now Jewish, Christian and Muslim vegetarian groups). Moreover, we might come up with criteria whereby we recognize that for some purposes, a fly does not have the same value as, say, a dolphin, even if we ascribe intrinsic ecological and other value to nature or sentience as such.

   That said, I agree that 'calibrating legal treatment of such losses [as you cite here] to the subjective response of individuals’ is hardly a proper way to proceed. Still, until we come to more of an ethical consensus on questions of the moral status of animals and what is (unfortunately but perhaps unavoidably) called ‘animal rights,’ our legal capacity to deal with such issues will in some measure reflect our background ethical inconsistencies, contradictions and confusions.

   And, with apologies to readers who have heard this before, I have available a bibliography: ‘Animals: Ethics, Rights & Law,’ that I will send along to anyone interested. Indeed, I’ll highlight a few titles from this rather large list if that would be helpful. See too The Chicago Project on Animal Treatment Principles at the University of Chicago’s Law School: http://www.law.uchicago.edu/academics/animal/index.html

3. geoff - April 27, 2007 at 5:54 pm

   How do you know this degree of anthropomorphism is “undue”? Why are these individuals’ subjective valuations of loss any less deserving than your subjective evaluation of their loss? Or do you belive that yours is objective? I agree with your point that humans are resilient, but I don’t know why that’s true for humans grieving over lost pets but not lost children. Who is deeply confused again? Those who arbitrarily assign value to the sources of other people’s (dis)utility, or those who feel the sorrow of a lost loved one, even if canine? Don’t get me wrong–I can think of lots of reasons to be less charitable with tort awards in cases like these, and perhaps we shouldn’t compensate for pain and suffering in these cases (or in cases of lost children). But your rationale–that you think we are unduly anthropomorphising animals–is unduly arbitrary. Wait–your parents didn’t let you have a dog growing up, did they?

4. Patrick S. O'Donnell - April 27, 2007 at 6:23 pm

   Erratum: Abrahamanic or Abrahamaic

5. Frank - April 27, 2007 at 10:51 pm

   Just so it’s on the record–I did have a dog for a few years as a kid, and cared for it a great deal. I also have witnessed the great difference a pet can make for many people (and isolated seniors especially). I’d be in favor of all manner of pet-friendly policies.

   But I’m just saying that the pet ought to be a more replaceable than persons, and the loss of a particular pet less significant than the loss of a particular person.

   I’ll try to respond a bit more on the weekend.

6. Jeff Lipshaw - April 28, 2007 at 8:23 am

   I’m thankful that we never lost a pet while my kids were too young. We have two dogs now, and I still worry about how their passing would affect my kids, and my youngest is 18!

   Is the problem the growing importance of pets, or is it instead the growing belief that every hurt is to be attributed to someone and compensated for as a matter of legal liability? It seems to me reasonable that there be liability and compensation for the killing of a pet through defective pet food, but there’s no natural law that says we have to award emotional distress damages for every instance of emotional distress. We limit the damages an employer has to pay a worker for workplace injuries as a quid pro quo for the certainty of compensation; if we do that, there’s no logical or doctrinal barrier to saying “enough’s enough.”

7. Patrick S. O'Donnell - April 28, 2007 at 9:03 am

   For the record, I think Jeff is on to something in asking if the problem is not better characterized as ‘the growing belief that every hurt is to be attributed to someone and compensated for as a matter of legal liability?’ And I completely agree with the proposition that ‘there’s no natural law that says we have to award emotional distress damages for every instance of emotional distress.’ There’s a tendency in this culture for folks to believe their feelings count for everything and and are thus somehow determinative in most instances: that’s irrational and unreasonable and, of course, too expensive. So there’s no strict legal or logical determination from a belief in animal rights or a subscription to any one of several current theories in ‘animal ethics’ to a decision in the tort questions at issue in the Pet Foods case(s).

8. Robert Rhee - April 28, 2007 at 3:36 pm

   The problem with emotional distress claims is that liability is the exception. Over the past century or so, the common law has decided that there is too much social liability in this are and have clearly delineated the limits through various arbitrary bright lines. Most negligent infliction of emotional distress claims fail unless they meet certain arbitrary elements of the common law rules. Given this legal landscape for loss of human life, it would be peculiar for the law then to grant more liberal liability rules to the loss of animals. An interesting question is to what extent emotional distress can be “parasitic” to property or economic loss. The most analogous claim here is the negligent infliction of economic loss claims, and those are rather limited in scope. The question of emotion based damages would necessarily raise a relative valuation of animal versus human life. Courts consider the latter complex enough, and so I think they would tend to continue treating animals as largely property interests.

9. Daniel Goldberg - April 28, 2007 at 4:10 pm

   From a bioethics and medical humanities perspective, I’d tack on to Patrick’s excellent comments (as always) with the perspective that thinking about our duties towards animals may go a ways towards illuminating morally contentious duties about the scope of our duties to humans, and in particular, to strangers. Utilitarians are particularly likely to hold this view, as any being capable of experiencing pleasures and pains are moral agents for purpose of the utilitarian calculus.

   Thus, it should be no surprise that Peter Singer writes extensively on the duties owed to animals, and likens them to the duties owed to strangers. Obviously, Singer is controversial for a variety of reasons, but I do think those who seek to explain why animals are owed less of our moral attention than strangers cannot simply assert our humanity as the rationale for such a distinction, because some moral theorists (like Singer) begin by rejecting such a rationale ex hypothesi.

   I also think David DeGrazia has some excellent arguments explaining why animal rights are something to be taken seriously.

   Finally, I agree with Patrick that simply because we may owe similar, if not identical duties to animals as to human strangers, it does not follow the tort system should allocate loss correspondingly. But the former premise does not inherently follow from the latter premise.

10. Frank - April 28, 2007 at 7:17 pm

    I really appreciate these great comments. Some thoughts:

    1) In response to Patrick and Daniel: In the abstract, and in the present, I am very receptive to arguments for due regard for animals….be they from Wise, Sunstein/Nussbaum, Singer or other utilitarians, Christian theorists like Scully, or the Eastern traditions that Patrick mentions.

    However, when we consider our predicament more dynamically, eliding boundaries between human and nonhuman animals strikes me as a dangerous path to go down. I don’t think we as a society want to reward individuals who consider lavish spending on a pet as something morally commendable (by, say, permitting recompense of all they’ve invested in a pet upon the pet’s untimely demise). In a world of brutal human need, such spending may be inappropriate unless it is accompanied by some effort to attend to that need. Consider these pages from EmptyTomb.org:

    http://www.emptytomb.org/about.html

    http://www.emptytomb.org/lifestylestat.html

    “This year [2003] pet purchases are expected to rise to $31 billion . . . with much of the money going to products no one dreamed of 10 years ago.” Some of the items include $30-per-lb. beef patties, dog jewelry, outfits and bags.”

    2) In response to Jeff and Robert, thanks very much for providing some larger legal context for the decisions to be made here. Jeff, I’d originally thought about calling this post “Valuing Pets vs. Pet Valuation,” implying that the latter can sometimes mislead us on the ways in which we should do the former. One can certainly have great love for a pet without having great expectations of compensation upon its death. And though I’m no expert on the topic, I’d guess that tort cases focused on valuation of the loss of humans generally look at the expected earnings potential of the victim. . . .not the degree to which he or she was loved.

    To Geoff: do you think pet manufacturers could alleviate the problem here by, say, putting a “shrinkwrap license” on dog food requiring owners to disclaim any liability for poisoning? I would think you would like my perspective here as a way of taming the tort system.

11. Patrick S. O'Donnell - April 28, 2007 at 7:47 pm

    Frank,

    Just to be clear, my point was that even with these new ethical theories we should NOT elide all boundaries between human and nonhuman animals (Singer’s theory comes closest to doing this), which is why I discussed the Western and Eastern religious traditions in the first place and one reason why I value a religious perspective on such matters. That said, religious adherents could learn a thing or two from a Francione, Singer, Regan, Sunstein, Nussbaum…. And certainly nothing at all follows from any of the prominent theories in animal ethics that the kind of outrageous spending practices on animals that you cite here is directly or indirectly encouraged or endorsed by these theories. One can carefully outline all the various ways in which we are like non-human animals or why they deserve enhanced moral status and better treatment from us while at the same time holding fast to the idea that there remains an insurmountable boundary between the species, which is just what the aforementioned religious traditions teach us (I happen to think Asian worldviews are more adept at this given certain metaphysical doctrines and ideas but that need not concern us here).

12. cosim - April 28, 2007 at 9:22 pm

    This seems to me yet another example of the lawyer’s creed (per Oliver Wendell Holmes) that “the general principle of our law is that loss from accident must lie where it falls.” Even where lawyers are willing to extend liability, damages must be limited.

    So whenever there is an argument, whatever its merits, lawyers’ gag reflexes are honed during law school with respect to imposing greater liability or more fully compensatory damages, and true to form, they gag while invoking “the slippery slope”.

    If we’re talking about animal rights, then it’s much more about a wrongful animal death suit, so to speak. And some (more progressive) jurisdictions permit, in everyday human wrongful death suits, recovery for the sort of loss of companionship that an animal wrongful death suit might seek.

    I find some pampering of pets rather distasteful, but then, there are very many things I’m not fond of that one can successfully prosecute a lawsuit concerning.

    Law, especially ours, did not for a long time recognize a cause of action for wrongful death. (It wasn’t until the 1970s that the tort could be pleaded in an admiralty case. Even today, some jurisdictions recognize award only pecuniary damages). But is an animal wrongful death tort the next step?

13. Jeff Lipshaw - April 29, 2007 at 10:28 am

    In a tort case, you can get loss of consortium (“the legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other”) for death or injury to a spouse, not just earning capacity.

    I’m not sure quite where I would want to go with this.

14. cosim - April 29, 2007 at 9:16 pm

    One can recover for loss of consortium, as noted. But all love isn’t of the sort between spouses, and some jurisdictions allow damages for, e.g., “the loss of the society, comfort, and companionship of the [wrongfully dead minor] child.”

    Certain jurisdictions have, however, imposed a hard cap on damages for such losses. Perhaps that is one way to alleviate concerns about overly emotional juries. The current Supreme Court’s “procedural due process” protections no doubt afford some protection against limitless punitive damages awards as well.

15. Regular Reader - May 2, 2007 at 1:02 pm

    Erudite discussion aside, I believe it was Demetri Martin who quipped, “owning a dog in the city is like saying, ‘my need for companionship outweighs my distaste for picking up sh*t.’”

    Amen, bro.

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