Emerging legal field exudes animal attraction A stranger uses a bow and arrows to kill someone's two Labrador retrievers. A city amends an ordinance for the specific purpose of getting one particular "exotic" pet to pack his alligator bags and leave town. A German shepherd is missing for more than two months after it bolts from the care of a paid dog sitter. For most people, these events -- all well publicized in Portland area media -- provoked feelings of outrage, amusement or sympathy. But to Portland pet-law attorney Geordie Duckler, they present the opportunity to advance the developing field of pet law. "My most famous case is Al the alligator," said Duckler, who was quoted in a 2003 New Yorker article entitled "The last meow: How far would you go for a pet." He said Beaverton amended an ordinance "solely to go after (my client's) alligator, which wasn't a huge alligator." With Americans spending more money than ever on their pets -- an estimated $31 billion last year, according to the American Pet Products Manufacturers Association Inc. -- it's not surprising that pet owners, and lawyers, would come together. And Oregon is standing smack in the center of that intersection. In 1999, the state became the first in the country to pass a law to provide for pets if their owners die unexpectedly. In 2001, a National Center for Animal Law was established at the Northwestern School of Law at Lewis & Clark College in Portland, with a board of directors drawn from law schools across the country. And since 2001, the Oregon State Bar has offered four animal law-related classes, including "Pet Trusts: Providing for Fido and Fluffy" and "Pet Legal Issues: More Than Just Fur and Feathers." "It (animal-related law) is still what we would call a 'niche' topic, like entertainment law," said the state bar association's spokeswoman, Karen Lee. "There isn't as broad a level of interest as there is for business law, but there are attorneys out there who are running into these issues or who have a personal interest in them." While basic legal theories, such as negligence and breach of contract, are still paying for most pet lawyers' bills, Oregon attorneys such as Duckler also have been on the cutting edge of several new, animal law-related concepts. These include trusts to care for pets after their owners are gone and demands for compensation for loss of companionship when pets are harmed or die as a result of reckless or intentional conduct. Such efforts to advance the rights of pet owners have been hampered by a bald legal reality: In Oregon, as well as in all other states, animals -- however beloved -- are considered personal property. "An animal is deemed to be the same as a chair," said Gregory Harris, a Portland business and estate-planning attorney whose work includes the establishment of trusts for pets. "The only thing that gets special status is a human being." But Portland attorneys like Duckler and J. Alan Jensen -- whom Harris calls the "father of the pet trust" -- have been working hard to change the rule. "You go into Petco, buy a dog for $30, and someone mushes it," Duckler said. "You've done more than feed it for nine years. It's a different kind of property than a handbag." Dog hunter gets jail time So far, Duckler has persuaded two Oregon judges to let him argue to juries that pet owners are entitled to compensation for the loss of their animals' companionship. Duckler's first such victory, believed to be the first ruling in Oregon on the issue, involved former professional football player Stan Brock. His two Labrador retrievers were killed by a bow and arrow-wielding neighbor in rural Washington County in 2000. Duckler reached a confidential settlement with the dogs' killer, who also was convicted of animal abuse and sentenced to jail. Another case, involving two Great Danes that were shot to death by a neighbor, is expected to go to trial in Clackamas County sometime this spring, according to Duckler. Duckler also represents the owners of the missing German shepherd, Fremont, and of Al, the alligator. Fremont's owners, Doug Baker and Lisa Klein of Portland, found him after a two-month, $20,000-plus search. They have sued their former pet sitter for at least $160,000. That includes $10,000 for the temporary loss of "the special value of Fremont" and $100,000 for their emotional distress and loss of his companionship while he was lost. And Al's former owner, Dee Ann Gorman of Beaverton, is pursuing her argument that the city had no authority to regulate the animal to the Oregon Court of Appeals, even though Al -- who was 4 1/2 feet long -- has since died. Bill Kirby, who is representing the city of Beaverton in the lawsuit, said Beaverton actually has had a ordinance regulating "wild, exotic and dangerous animals" -- including crocodiles but not alligators -- since 1993. Kirby said the ordinance, which was enacted to address a problem with "howling" pet cougars, was amended to include alligators after an elderly woman found the escaped Al tangled in her garden hose reel. Pets' 'property' value debated Despite Duckler's two trial court victories in the Labrador retriever and the Great Dane cases, there is no appellate law in Oregon that clearly supports his theory that owners are entitled to seek compensation for the loss of their pets' companionship. "There's a big, theoretical discussion going on around the country about whether animals should be treated as property, or whether they should be special types of property," said Laura Ireland Moore, who directs the National Center for Animal Law and practices law with Duckler. West Linn attorney Lawrence Blunck, who represented the killer of Brock's dogs, is on the other side of the discussion. "The dogs' value cannot be based on the owners' emotional attachment to the dogs," Blunck wrote in a legal memorandum in the case. "It must be based on the dogs' fair market value and not on their sentimental or fanciful value." "I have respect for any attorney who works hard for a change of law that he believes in," Blunck said of Duckler. "But I don't believe that it (compensation for loss of pet companionship) would be an appropriate change of law. I don't think the Oregon Court of Appeals will find it to be a compensable issue." The efforts of Portland attorneys to redefine the status of animals for the purpose of providing for their care has been more successful. In 1999, the Oregon Humane Society successfully sponsored a bill to allow a friend, family member or animal shelter employee to take custody of a recently deceased person's animal. The bill also allows the animal's caretaker to be reimbursed from its owner's estate for the cost of such care. Previously, the disposition of a deceased person's pets -- like the rest of his personal property -- was on hold until his estate had been probated. "A pet doesn't want to meet the (estate's) personal representative," quipped Jensen, who has established trusts for pets as part of his estate-planning practice. "A pet wants its next meal." According to Jensen, Oregon was the first state to pass -- and may still be the only state to have -- such legislation. "It is an extraordinarily humane, and needed, law," he said. In 2001, the Oregon Legislature also passed a bill to make the terms of a pet-care trust legally enforceable. Previously, said attorney Harris, "it was hard to make sure that a neighbor actually took care of Fluffy. The neighbor could let Fluffy go and keep the $5,000 (provided by the trust)." Trusts pique interest According to Harris, there is "just a tremendous amount" of national interest in the subject of pet trusts. Harris helped Dove Lewis Emergency Animal Hospital set up its own pet trust program. Under that program, an owner with $25,000 to spend can make a bequest of that amount to the hospital in exchange for the hospital's providing his pet with a permanent foster family home and ongoing medical care. Harris said he sometimes recommends this option to clients who have only one pet. Harris said pet trusts typically are sought by people who are strongly attached to their animals and who don't have an obvious person to provide for them. "Usually, they're people whose lives pretty much revolve around their animals, or whose animals play a significant role in their lives," he said. "Generally, these are people who don't have a lot of heirs. I find that people with kids and grandkids -- the dynamic that comes from a family of humans -- will say, 'My daughter will take the dogs. No big deal.' " One couple who had Harris prepare a pet trust for them as part of their general estate planning said they did so out of a sense of responsibility. But Wanda, who doesn't want her last name published, said that they don't perceive their two dogs and three cats as their "children," as some pet owners do. "They're pets," Wanda said. "But when you get pets, it's a lifetime commitment, both for you and for the pets. We wanted to make sure that if something happened to us, our pets would be taken care of." Reference: The Portland Tribune, January 30, 2004. Author: JANINE ROBBEN |