It may seem counter-intuitive to some, but for me and other like-minded animal lovers, justice for animals will not come from granting animals “personhood rights,” or by banning the commercial breeding of purebred dogs, or by substituting guardianship for ownership, or banning biomedical research involving animals, or granting owners the right to non-economic damages for emotional distress following the injury or death of a pet resulting from the tortious act of another.  These actions, perceived by some to benefit animals, will result in their harm, illness, and even, in some cases, extinction.

The question of whether a pet owner can be awarded money damages for their emotional distress resulting from the tortious injury or death to a pet, whether by a veterinarian, another pet, as a result of a car accident, or by a law enforcement officer, has been considered in many jurisdictions and largely rejected.  But this issue was central to a Maryland case where a family, whose dog was shot by a police officer while he was attempting to execute an arrest warrant on the homeowners’ son, sued for non-economic damages based on their emotional distress.

Their dog, Brandi, was shot when she went to greet the police officer.  Fortunately, her injuries were not fatal, but understandably were distressing for her and her owners.

The jury found that the officer was grossly negligent for his actions based on a video-tape of the encounter.  The homeowners sought awards for their mental anguish, otherwise known as non-economic damages for emotional distress.

For the constitutional rights claims, the Court upheld the jury’s award of non-economic “mental anguish” damages, but for the common law trespass claim, the award was not available.

Same conduct, same emotional impact [which no one disputes], different result.  That’s because the Court decided that the constitutional tort violation permitted it to skirt the arguments from Amici, filed by Phil Golberg and Victor E. Schwartz, of Shook, Hardy & Bacon LLP on behalf of veterinary and animal-related associations [1], and in support of defendant’s position, that the Maryland statute providing for damages to pet owners is limited to only compensatory damages and applies to any tortious conduct resulting in such harm.

Specifically, Maryland’s statute limits damages from any tortious injury to a pet to compensatory damages up to $7,500.  Therefore, the finding of gross negligence for the tortious conduct of the officer should have limited the award to the maximum permitted under that statute.

But the Court found that the constitutional tort allowed for damages outside the pet damages statute.

Still, the Court’s analysis of the pet damages statute is troubling.

Even though the Court acknowledged that, before adopting this law, the legislature had reviewed “certain out-of-state cases that permit recovery of non-economic damages for injury or death of a pet,” the Court concluded that because there was no reference to “recovery of such damages” in the statute, it could permit emotional distress awards, at least those based on the constitutional rights claims in this case.

The Court upheld the owners award of $200,000 based, at least in part, on the following logic:

 “Suppose that someone distractedly (and thus negligently) drove his car into the wrong driveway, crashed into his next door neighbor’s garage, smashed the garage door and the car just inside it, and injured the neighbor’s rabbit, who lived in a hutch along the garage wall. The Deputy’s theory of [Maryland’s pet injury statute] would limit the neighbor’s recovery to the bunny’s vet bill and preclude any recovery for the much greater damage to the neighbor’s car or house.”

I disagree.  In this scenario, the rabbit’s owners could have been awarded damages based on the totality of the damage to the garage, and the damage to the car and separately for injuries to the rabbit.

And, notably, while the Court stated that it “express[ed] no views” as to whether non-economic damages could be awarded in other cases, such as veterinary malpractice or product liability cases, it did not reject such potential awards.

That should concern every pet owner.

As noted in the Goldberg/Schwartz Amici Curiae Brief, the consequences of permitting such awards include the escalating costs of “every pet’s health care, pet products and other pet services in Maryland” and the ultimate result of this lawsuit and others similarly filed, if successful, would place “essential pet-related services, and with it responsible pet ownership . . .out of reach of many Maryland residents. In short, pets will be harmed if they do not receive care because of lawsuits.”

For more on the implications of the Court’s decision see Phil Goldberg’s article in The Daily Record.

 [1] Amici included:the Maryland Veterinary Medical Association; American Kennel Club, Cat Fanciers’ Association, Animal Health Institute, American Veterinary Medical Association, National Animal Interest Alliance, American Pet Products Association, American Animal Hospital Association and the Pet Industry Joint Advisory Council.