New Pastures for Animal-Rights Lawyers

Practice area gets boost from legislation, case law and the power of the Internet

Mary Pat Gallagher

New Jersey Law Journal

November 30, 2007

Elenora Benz
Image: Carmen Natale

When trusts and estates lawyer Elenora Benz meets with clients who want her to draw up a will, she asks not only about assets and heirs but also about pets and how they are to be provided for.

A New Jersey law enacted in 2001 lets pet owners set up lifetime or testamentary trusts for care of domestic animals. It even allows a court to appoint a trustee if needed and to make orders and determinations to carry out the intent of the creator and the purpose of the act.

Benz, who drafted the statute, has made use of it to help clients ensure their companion animals will be cared for and has even used it to provide for her own cats, dogs and Icelandic horses.

Pet-trust practice "is not going to make a fortune," says the Newton, N.J., solo, but it is a marketing tool, with some clients seeking her out specifically for that reason.

It's just one way in which a growing cadre of lawyers is melding a love of animals with legal practice as animal-related issues become incorporated in numerous legal areas, such as personal injury, landlord-tenant and family law.

They are getting a boost from animal-oriented legislation. The pet trusts law, N.J.S.A. 3B:11-38, is part of a spate of statutes in recent years. More than 30 states have similar statutes, including California, Florida, New York, Pennsylvania and Virginia.

Other recent New Jersey statutes:

A 2000 law against leaving animals in cars "under inhumane conditions";
A 2004 law that increased criminal and civil penalties for animal cruelty offenses;
A 2005 law aimed at cockfighting and dog fighting that clarifies that using one animal to injure another falls under the animal cruelty laws;
A 2006 law that allows public school students to opt out of dissecting animals; and
A 2006 law that requires state emergency management plans to cover animals.

Lawyers are also helped by expanded animal-law-related education and the enhanced ability to network with each other and potential clients via the Internet.

Niedweske Barber, a Morristown, N.J., firm with two cats in residence, has set up a Web site to promote pet trusts, NB Pet Trust. "We don't want to get phone calls from people saying so-and-so died or is disabled and there is nowhere to put their animals," says partner Linda Niedweske. The firm charges a sliding scale fee for the service, depending on ability to pay, she says.

Niedweske also helps tenants fight eviction over pet issues. She is aided by several federal statutes that protect the right of tenants, particularly the elderly and disabled, to reside with companion and "assistive" animals.

Lawyers also represent animal rescue groups and shelters, defend "death row" dogs and try to block using animals for testing. Niedweske's partner, Kevin Barber, represents the New Jersey Society for the Prevention of Cruelty to Animals, which just lost a suit alleging testing violates animal cruelty laws. On Oct. 31, an appeals court upheld dismissal of the case, NJSPCA v. Huntingdon Life Sciences, A-0487-06.

REVALUATING PET CLAIMS

Animal-rights lawyers are also pushing the boundaries of what damages can be recovered for the death or injury of an animal. Historically, animals were treated like other personal property, with market value used to measure damages, but lawyers are seeking to apply the concept of "intrinsic value," which usually applies to items like heirlooms.

In 2004, in Small Dog Rescue v. McKenney, SOM-L-864-04, New Brunswick, N.J., personal injury lawyer Linda Sinuk won a ruling allowing a rescue group to try to prove that a Cairn terrier, named Baxter, had an intrinsic value above the $200 paid to adopt him. The defendant had Baxter euthanized over his tendency to bite rather than returning him, as the parties allegedly agreed.

Superior Court Judge Victor Ashrafi, denying a motion to dismiss for lack of cognizable damages, held the jury could look at what the plaintiffs would have been willing to pay for the dog and its care and maintenance had it been returned. The case then settled for $25,000.

Sinuk has yet to put intrinsic value to a jury, but, armed with a transcript of Ashrafi's decision, she has fended off dismissal motions in other cases.

More typically, her cases involve veterinary malpractice claims, which fall under the Affidavit of Merit law and must involve "really egregious" conduct. The obstacles to recovery include a 2001 Law Division case, Harabes v. Barkery, 348 N.J. Super. 366, which denied negligent infliction of emotional distress damages for the death of a dog. Ronald Graves, then a Sussex County Superior Court judge, reasoned that the Wrongful Death Act does not allow such damages for the death of a spouse or child.

In 2004, however, Graves allowed an emotional distress claim to go forward in Morrisroe v. Moriarty, brought by parents of a 13-year-old girl who, distraught over the laming of her horse, attempted suicide. Graves reasoned that since the horse did not die, the Wrongful Death Act analogy did not apply. The plaintiffs confidentially settled after jury selection, says their lawyer, Newton solo Paul Abramo.

Landlord-tenant lawyer Roberta Tarkan, a Jersey City, N.J., solo, says there is a lot of case law that is applicable by analogy to animal cases. For instance, the same waiver and estoppel arguments for keeping a washing machine can be applied to a cat or dog and general nuisance law concepts can cover barking dogs.

BILLS IN THE HOPPER

Animal-rights bills pending in New Jersey would:

Require courts to issue protective orders against animal abusers (A-4026);
Permit tenants to keep pets provided they are spayed or neutered and properly cared for and controlled (A-2645);
Revamp the animal cruelty laws, upgrading offenses, hiking minimum fines and adding new offenses for hoarding, euthanizing improperly, failing to provide minimum care, committing animal cruelty in the presence of a child and "cruel commercial exploitation" (A-2649);
Create a civil action for disability or death to a domestic companion animal resulting from violation of animal cruelty laws, with "pecuniary damages," such as burial costs and veterinary fees (A-3192);
Provide pet food safety standards (A-4171); and
Allow a civil action for injury or death due to tainted pet food, with up to $15,000 in loss of companionship damages (A-4217).

The Assembly has approved bills to allow a civil action against the owner of a pet that hurts or kills another's pet (A-3192) and to forbid traditional animal-testing methods if there is a federally recommended alternative (A-909).

The Senate has approved a new offense for injuring an animal while committing or fleeing a crime (S-161).