Man's best friends and their owners getting day in court

Baxter was a perky little Cairn terrier with long white hair that covered his eyes. But he had aggression issues. His adoptive owner found him to be an unrepentant biter who sometimes had to be handled with fireplace gloves.

Susan McKenney eventually gave up and had him euthanized more than a year ago, but the fight over his death and his worth is raging before a state Superior Court Judge in Somerville, N.J.

The owner of Small Dog Rescue, a shelter in Princeton, N.J., where the dog lived prior to adoption, is suing McKenney, saying the dog should have been returned to his care. He wants compensation for his loss and punitive damages.

"He was a great dog, one of my favorites," said Emmett Wilson, who spoke fondly of Baxter's talent for balancing a Frisbee on his head.

A few years ago, a suit over the loss of a pet might have been tossed long before reaching trial. But more and more animals — and their owners — are getting their day in court.

Around the country, the legal community is starting to pay serious attention to cases involving pets: pet trusts, veterinarian-malpractice cases and suits that push to expand emotional damages so they cover a pet's death or injury.

"There is more happening since the year 2000 than in the previous century ... A whole convergence of different energies are creating this fantastic, really, volcano of change," said Carolyn Matlack, president of Animal Legal Reports Services, which tracks lawsuits and legislation. "The courts are struggling to figure out how to create justice."

In recent years, nearly 30 states have adopted laws allowing people to make accommodations for pets in wills. Veterinarian-malpractice cases, though small in number, have increased 320 percent in the past five years, according to Matlack's calculations. A decade ago, a handful of law schools offered classes on animal law; today there are more than 40, including Columbia University School of Law.

Unique form of property

Since most states have sophisticated criminal statutes regarding the treatment of animals, most of the current surge in activity is happening in the civil arena.

One of the primary ways is estate planning: allowing people to set up a trust for the care of a pet.

Courts also are showing a willingness to regard pets and other companion animals, such as guide dogs or show horses, as a unique form of property, worth more than their purchase price.

"There seems to be a nationwide awareness of the fact that animals are not just plain pieces of property like a chair. They have emotions and feelings and their market value does not, in any way, come close to defining what their value is," Matlack said.

Some cases around the country are tackling that issue.

Last month, a Seattle woman was awarded $45,480 in damages for emotional distress when she sued her neighbor after his dog killed her cat. A Texas court recently awarded $10,000 in emotional damages to the owner of a mini-schnauzer who got away from a groomer and was killed. Last year, a jury in California said two veterinarians had to pay a dog owner $39,000 for bills and the animal's "unique" value after the dog was misdiagnosed and died.

In New Jersey, a Sussex County case last year set precedent for the kind of damages that can be sought when a pet is maimed. A judge ruled the parents of Jaimie Morrisroe, 13, deserved to seek damages for emotional distress after an injury to the girl's horse.

Max was a $20,000 birthday present to the teen, who had been riding since she was 7.

"Domestic animals are living creatures capable of establishing very special relationships with humans. Because of their unique qualities, it makes good sense for the law to distinguish animals from inanimate objects," wrote Judge Ronald Graves.

The suit settled privately after jury selection, an attorney said.

A challenging task

Lawyers who handle animal cases said getting a case to court is one thing but winning is a separate challenge. Because the field is so new, lawyers have little case law to back them up and must be creative in drafting legal briefs.

Linda Sinuk, who is handling the case of Baxter the Cairn terrier, said she hears snide jokes from opposing lawyers or judges in almost every such suit. "You have to be very committed," Sinuk said.

Some longtime lawyers in the field said the focus on getting the courts to recognize pets as having more worth than their market value doesn't go far enough.

Gary Francione, a professor at Rutgers University Law School — Newark, has been teaching animal-rights courses for 20 years. He said he worries that as long as animals are defined as the property of humans, they will never be fully protected.

As for Baxter, the woman who adopted the dog said she consulted experts and made the responsible choice, fearing the dog could hurt someone. And putting Baxter down wasn't easy.

"It was a heartbreaking decision that caused me a great deal of anguish," McKenney said.

The parties are trying mediation to reach a settlement before trial.