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It was a bad day for the dogs when the men of the Lewis and Clark expedition decided they could not stand another lean, monotonous dinner of elk steaks. Man’s best friend or not, the expedition had learned from Plains Indians to savor a pot of greasy dog stew. Two centuries later — in pet-adoring America — eating a dog is regarded as not far different from cannibalism, but Lewis and Clark would have little to fear in contemporary courtrooms. In the eyes of the law, a “companion animal” is chattel, indistinguishable from chickens in a barnyard. But wait. That view is under challenge from aggrieved pet owners and animal-friendly lawyers seeking compensation for the emotional distress of negligent loss of their pets. “I don’t foresee a jury awarding $500,000 for the loss of Fido, but juries also see that loss of Fido is not the same as your car being totaled in a collision,” said Steven Wise, a Harvard law professor. “Are human beings who own companion animals to be compensated for loss of society or emotional suffering when the animal suffers injury or death from negligence? This is just straight tort law.” Rick Cupp, a law professor at Pepperdine University School of Law, sees the emergence of “animal law” as much more than simply trying to dispassionately calculate the value of lost afternoons watching your cat nap in the sunshine. “The strongest proponents of this trend are in favor of blurring the distinction between humans and animals. They see this as one battle in that war,” he said. “I think it is harmful for society if the law encourages that attitude, to value a pet in the same way we value a human being.” CASE IN POINT Cupp, who lists his dog, Shasta, in the section of his faculty profile that asks the names of children, confesses that his legal and ethical reasoning runs opposite to his emotional reactions. “It is tempting to think animals are morally superior because they don’t lie, cheat or steal and people do, but it is ultimately dangerous,” he said. “That is emotional laziness. Pets are easier to love than people, but the relationship does not have the depth and complexity of a relationship with a human being.” Wise sees that reasoning as off the mark, arguing that the tort at issue in animal law is not the loss of the pet, but the loss of the relationship with the pet. “Many studies have shown that the emotional relationship with companion animals is very intense and that many people view their pets as children,” he said. “This is very common when you have childless couples or a single person who forms an extremely close relationship with the animal. Juries should be allowed to evaluate this sort of thing.” Last June, Wise represented the plaintiffs in a tort case for intentional infliction of emotional distress stemming from the death of a pet dog in an attack by another dog. The jury ultimately awarded the plaintiffs compensation for the costs of veterinary care of the fatally injured dog but rejected compensation for intentional infliction of emotional distress. Samples v. DeCastro, No. 97-2513 (Super. Ct., Middlesex Co., Mass.). “Even though I disagree with the jury in this case, this is a perfect example of why a judge should be allowed to let juries decide these issues,” said Wise. Cupp noted that someone engaged to be married couldn’t collect damages for loss of companionship if his or her intended were killed negligently. The negligent death of an animal is similar, he reasoned. “Individuals can suffer significant emotional damage from the loss of a beloved animal, but the law does not simply compensate a loss. We let policy step in to determine if we compensate the loss,” he said. “I won’t tell them they are not suffering emotionally. It is just that the current measure of value, which is market value, is correct.”

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