Blog: Another court opinion scaring folks about the status of pets as property

Blog: Another court opinion scaring folks about the status of pets as property

Judges’ comments meant to explain why the state of Oregon is hard on animal abusers, not change longheld precedent.
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Jun 27, 2016

Image of Mark CushingMy last blog analyzed a Georgia Supreme Court opinion about damages for the loss of a pet. Animal health publications and blogs were wringing their hands about the implications of this decision for the longstanding rule of no recovery of non-economic (emotional) damages for the negligent injury or death of a pet.

I spend part of every week defending the veterinary industry from legislative mischief, so I closely read the case to see if it portended the harm that I’d been warned about by colleagues. Fortunately, the Georgia Supreme Court did no such thing and the law against non-economic damages is alive and well in the Peach State.

This week the culprit is the Oregon Supreme Court in State of Oregon vs. Amanda Newcomb. Here’s a sampling of the headlines we came across in my office:

The Newcomb case involved criminal charges of animal abuse and neglect. The issue was the constitutionality of police blood withdrawal from the defendant’s dog. The defendant argued that the dog was personal property and the police had no right to “invade” its body without the owner’s consent. The Oregon Supreme Court reversed the lower court and held for the government.

What excited readers was a series of comments by the court about the special nature of pets as property with emotional and sentient qualities more akin to humans than chairs. As a lawyer and lobbyist I understand the fears that these statements could lead us down a slippery slope to a point where pets are treated like human family members and pet owners (like parents) could be awarded non-economic damages for negligent injury or loss of life.

Needless to say, this would have a dramatic impact on veterinarians in terms of their malpractice liability and insurance costs—costs that would inevitably be passed on to the pet owner in an already increasingly price-sensitive environment.

But that’s not what the Oregon Supreme Court held, so relax. Here’s what the ruling actually says (ignoring some of the rhetoric along the way):

  1. Pets are personal property under Oregon law and always have been. Not so much as a hint that this bedrock rule will change.
  2. The case revolved around Oregon’s progressive criminal statues governing animal abuse, not common law definitions of damages or law school theories about the legal status of animals. The comments raising eyebrows among veterinary readers were explanations about why the Oregon Legislature is so tough on animal abusers. Put simply, the criminal sanctions for hurting a puppy are greater than smashing a vase.
  3. The court went out of its way to highlight the importance of veterinary care, particularly when there is a potential issue of animal abuse. Veterinarians are part of the solution, not the problem.

The profession needs to remain on alert for legislators or judges taking aim at the common law rule of non-economic damages involving pets. This rule is always under attack. My 12 years in this field annually involves some group somewhere trying to change the law. But don’t worry that the Oregon Supreme Court, or the Georgia Supreme Court, changed the rules. Like recent decisions in California, Vermont and Texas, the law remains intact.

Mark Cushing, JD, is founding partner of the Animal Policy Group, providing government relations and strategic services for various animal health, veterinary and educational interests. He maintains offices in Portland, Ore., and Washington, D.C., and is a frequent speaker at veterinary conferences.