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NEW YORK — Adam Riff’s 8-year-old died from complications during a tooth extraction. Riff and his mother, Ellen, sued the doctor for alleged breach of contract, malpractice and emotional distress for the untimely death. The suit survived a motion to dismiss and is now in the discovery phase. That may seem unremarkable, except for one crucial fact: The Riffs’ 8-year-old was a Shetland Sheepdog named Lucky. And while companion-animal suits alleging emotional distress are not a brand-new concept, trial courts across the country are growing less reluctant to dismiss them. In addition, state legislatures are accelerating the trend by reforming their animal protection laws. In 2000, Tennessee became the first to pass a civil statute giving a pet owner the right to pain and suffering damages, as well as punitive damages for each act of abuse or neglect. A version of the Tennessee law was passed in Illinois last year, while others are pending in Rhode Island, Connecticut, New Jersey and New York. West Virginia removed damage caps that limited civil awards to the assessed value of injured or killed pets. The enactment of civil statutes broadens the legal protection given to companion animals and their owners. A total of 41 states make cruelty to animals a felony, while abandonment of an animal is a crime in 18 states, according to the Animal Legal Defense Fund. Animal rights advocates hail the movement as a turning point. “This is a trend that we’re very glad to see, because after many years of fighting over the issue of limiting damages for animals through the courts, we may see faster progress through the legislatures,” said Joyce Tischler, executive director of the Animal Legal Defense Fund. Traditionally, civil remedies for grieving owners varied from state to state, depending on individual courts’ valuation of a pet’s life. Plaintiffs’ usual recovery was limited to the replacement cost of the pet. Emotional distress claims were dismissed altogether. The ability of grieving owners to recover noneconomic damages has been facilitated by some courts distinguishing pets from nonliving property. Barry Silver, Boca Raton, Fla.-based solo practitioner specializing in personal injury law, is representing the Riffs in Riff v. Welleby’s Veterinary Medical Center Inc., 02-012991-08 (Broward Co., Fla., Cir. Ct.). He noted that the number of emotional distress claims for the loss or injury of a companion animal is “happening more and more, and the law is catching up.” Silver thinks the courts will gradually come to the recognition that pets are sentient beings “capable of giving and receiving affection.” But not everyone agrees with Silver. Daniel Bachi of Miami’s Sellars, Marion & Bachi, who is defense counsel in Riff, is doubtful that courts will create a separate category for pets. “I agree with [Silver] in concept that pets are different than pieces of property, but the law has to draw the line, and the law says that they’re property,” he said. Bachi asserts that a win for the Riffs would open up a “Pandora’s box of problems” for unscrupulous claims and increase the cost of veterinary care. “I think it’s kind of ironic that people are putting forth the argument that we should get pain and suffering for pets, while our legislators are hard at work at analyzing whether there should be a cap on pain and suffering for medical malpractice claims of people,” he said, referring to the tort reform debate in Florida. But the wheels are in motion. In April, the California Superior Court refused to strike David Lunas and Jennifer Rampton’s $30,000 emotional distress claim in Lunas v. Stockton, 2002-074717 (Alameda Co. Super. Ct.). The couple’s Beagle mix, named Austin, a companion and hearing aid dog, died as an alleged result of their vet’s failure to diagnose Austin’s gestating testicular cancer. The case survived a motion to dismiss and is now in discovery, where the plaintiffs must gather enough evidence to show not only negligence, but what Austin meant to them. If the plaintiffs in Riff win, and then survive appeal, Florida would become the second state to allow a pet owner to collect emotional distress damages. The first state is California, where in 2000, $20,000 was awarded to the owner of a disfigured Rottweiler, one of the largest noneconomic damage awards in a vet malpractice suit. Evers v. Palmer, No. 773909 (Orange Co., Calif., Super. Ct.). Cherie Song is a reporter with The National Law Journal , a Recorder affiliate based in New York City.

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