More Than a War of Words

More than a half-century ago, noted science fiction author Isaac Asimov began his acclaimed series of Robot novels, examining increasingly complex interactions between humans and robots in a future world. Asimov's underlying premise for the books was that robots had advanced sufficiently to become sentient beings. Questions raised by this development include whether robots should be granted legal rights, and if so, what those rights should be.

Less fanciful, but no less complicated, is the current national debate about animal rights, the resolution of which could result in a comprehensive restructuring of the legal relationship between humans and animals. The controversy is centered on the question of whether humans should be allowed to own animals as property, or whether humans should be legally defined as guardians of the animals in their care.

There are no easy answers to the question, and the intuitive response might lead to unintended consequences.

The Status Quo

With few exceptions, animals are, and always have been, treated as the personal property of their owners by courts and lawmakers. The Uniform Commercial Code (a code of laws governing commercial transactions that has been adopted in nearly all states), for example, includes animals (and unborn young) among the "goods" that can be the subject of business contracts. Kentucky statutes, for example, specifically define a licensed dog as the "property" of the owner, and other jurisdictions have similar laws.

This well-established property status means that animals legally can be raised for profit or pleasure; bought, sold, or leased; exchanged or given away; put on exhibition or used in races, sports, and other competitions; and disposed of when appropriate or necessary. Status as property does not mean that an animal is nothing more than the legal equivalent of a refrigerator, an automobile, or a computer, however.

While generally defining animals as personal property, the law also recognizes that animals represent a particular class of property and imposes attendant obligations on an animal's owner. In recognition of the fact that animals are living creatures generally dependent on their owners for care, a legal niche is carved out to provide them with additional legal protection.

Kentucky law in this regard is typical of the laws in most states. The owner of an animal is guilty of cruelty in the first degree if he or she uses the animal for fighting, a felony with a maximum punishment of five years in prison. There also is a legal obligation to provide adequate food, water, and shelter for animals, and a legal prohibition against torture, mutilation, neglect, and other mistreatment. There are numerous exceptions, including hunting and fishing, food processing, veterinary care, and bona fide medical research, for example, and most cruelty offenses that do not involve animal fights are charged as misdemeanors. (A recent change in Kentucky state law elevates the punishment for second and subsequent convictions of torturing a dog or cat to a felony.)

In a majority of states, as in Kentucky, at least some instances of cruelty to animals are punished as felonies. It probably is fair to say, however, that animal cruelty offenses generally are classified as misdemeanors, with a penalty of no more than 12 months in jail or, more likely, only a fine.

Another consequence of animals' status as personal property is a general limitation on an owner's potential monetary recovery when an animal is killed. If the death of an animal results from an intentional act, or through the negligence of another person, the owner generally must seek compensation in a civil lawsuit for the destruction of property, rather than for wrongful death, which is the usual legal remedy for the death of a person. If the lawsuit alleging destruction of property succeeds in court, recovery generally is limited to the fair market value, or the replacement value, of the animal.

Non-Economic Damages

In a few states, however, statutes specifically allow recovery for so-called non-economic damages following the death of an animal. A recently enacted Tennessee law, for example, allows the owner of a pet to recover up to $4,000 beyond the economic value of the animal if certain conditions are met. To recover, the owner must establish that the animal's death was the result of another person's actions that were both unlawful and intentional or negligent, and that the death occurred while the animal was on the owner's property or under his or her supervision.

Illinois also allows pet owners to recover for non-economic damages, including emotional distress, for the death of an animal in certain limited circumstances. Similar legislation has passed or is pending in a small number of other jurisdictions.

Even without specific laws, however, juries occasionally go beyond an animal's actual replacement value to compensate an owner.

Kentuckian Judy Taylor owned two registered Appaloosa horses named Poco and P.J. for more than 10 years, and she regarded the animals as members of her family. Following a divorce and serious illness, Taylor reluctantly decided that she no longer could care for Poco and P.J. by herself. She entered into a "free-lease agreement" with Jeff and Lisa Burgess, under which the Burgesses would provide pasture and care for the horses in return for the use of the animals. No money changed hands.

The Burgesses agreed that Taylor could visit Poco and P.J. whenever she wished, and that if conditions changed and they could no longer care for the horses, they would be returned to their owner. Taylor never transferred ownership to the Burgesses, and she never gave any indication that she did not want the horses returned at some unspecified time in the future.

Shortly after Poco and P.J. arrived at the Burgesses' farm, Lisa contacted a horse dealer well known for buying animals for slaughter. He purchased Poco and P.J. for $1,000, and the horses subsequently were shipped to Texas and slaughtered. Lisa Burgess repeatedly lied about the sale of Poco and P.J. to Taylor, who eventually discovered the grisly fate of the animals with help from members of a humane association.

Taylor filed a lawsuit against the Burgesses for the loss of her horses, and following a jury trial she was awarded $1,000, representing the fair market value of Poco and P.J. The jury could have stopped there, and should have done so under a strict application of the animal-as-property theory. It was undisputed that Taylor could have replaced Poco and P.J. for that sum.

Instead, the jury also awarded Taylor $50,000 in compensatory damages and an additional $75,000 in punitive damages, for a grand total of $126,000. The compensatory award was due to the Burgesses' "outrageous conduct" and the punitive award was intended to deter similar conduct in the future. The verdict and award were affirmed by the Kentucky Court of Appeals in 2001.

The appellate court did not acknowledge that the large jury award was proper simply because Poco and P.J. were animals and thus were entitled to some special protection under the law. In fact, the Court of Appeals specifically determined that one of the elements that must be proved for a claim of intentional infliction of emotional distress is the "offender's conduct" rather than the "subject of said conduct." This might suggest that the fact that Poco and P.J. were animals was irrelevant to the damages.

Nevertheless, the Court of Appeals clearly recognized and took into account both the strong emotional bond that existed between Taylor and her animals and the severe emotional distress she suffered when she learned what happened to Poco and P.J. It is highly unlikely that a similar analysis would be utilized to resolve the loss of other items of personal property such as an appliance or automobile, regardless of the circumstances. It is reasonable to suggest that the defendants' conduct was outrageous because Poco and P.J. were animals.

Against this legal framework, in which animals are considered personal property and protected primarily through anti-cruelty laws, several different approaches to animal protection have emerged.

Redefining the Status of Animals

There can be no genuine controversy surrounding the proposition that animals deserve proper care and that they should be protected from mistreatment and abuse. The dispute arises over how the interests and well-being of animals can be best served. For the traditionalist, the road to protection of animals is paved with better owner education, more well-equipped and well-funded shelters, harsher penalties for animal cruelty convictions, and vigorous enforcement of existing anti-cruelty laws.

At the other end of the spectrum, extreme animal rights activists launch violent attacks on commercial animal operations and facilities where animals are used in research, destroying property and releasing animals. The Animal Liberation Front (ALF) and the Earth Liberation Front (ELF), for example, are considered part of a "serious terrorist threat," according to James F. Jarboe, Domestic Terrorism Section Chief of the FBI's Counterterrorism Division. Testifying before Congress in February 2002, Jarboe reported that ALF and ELF members committed some 600 criminal acts in this country during the preceding six years, with damages in excess of $43 million.

A third approach, certainly more middle-of-the-road than the actions of ALF and ELF, but still well outside the mainstream, is a legal restructuring of the traditional owner-property relationship between humans and animals. Advocates are urging state and municipal lawmakers to rewrite their rules, substituting the word "guardian" for "owner" wherever possible in laws that affect animals. The purpose of the wording change, according to its advocates, is to instill a greater sense of respect and compassion for animals. This, in turn, could lead to a reduction in animal abuse.

The guardian movement had its genesis in 1995 at the 11th annual Summit for the Animals held in St. Louis, Mo. Representatives from 47 national organizations approved several resolutions there, including one styled "Adopting Language that Recognizes Animals as Individuals and Not as Property or Things." This resolution put forward the proposition that "animals are not property to be used for the benefit or whim of humans." In Defense of Animals, a Mill Valley, California-based, non-profit animal rights advocacy organization headed by veterinarian Elliot Katz, DVM, soon took up the cause with its nationwide Guardian campaign: "They are not our property...we are not their owners."

The first serious attempt to effect a regulatory change from "owner" to "guardian" failed in San Francisco, but a similar measure was adopted shortly thereafter, in July 2000, by the City Council in Boulder, Colo. Since then, a half-dozen other cities have revamped their municipal codes to include references to animal "guardians." Rhode Island followed suit in 2001, becoming the first state to amend its laws to recognize human guardianship of animals.

Rhode Island General Law Section 4-1-1(4) now states that a "Guardian shall mean a person(s) having the same rights and responsibilities of an owner, and both terms shall be used interchangeably. A guardian shall also mean a person who possesses, has title to or an interest in, harbors or has control, custody or possession of an animal and who is responsible for an animal's safety and well-being."

Adding the word "guardian" to a state or municipal law, especially when the law allows "guardian" and "owner" to be used interchangeably, sounds innocent enough. After all, many animal owners already treat their animals more like members of the family than as property, and being called guardians rather than owners is not likely to make them more responsive to the animals' needs.

Some activists also argue that the change in language will reduce the incidence of animal abuse, by making owners feel more responsible for their animals. This might be wishful thinking, however, considering that child abuse continues at an alarming rate despite the unquestioned responsibility parents and guardians have for the welfare of their children.

Strong criticism of the policy shift has emerged from seemingly unlikely sources. In May 2003, for example, the Executive Board of the American Veterinary Medical Association (AVMA) approved a position statement opposing guardianship language. The official AVMA position reads:

"Ownership vs. Guardianship:

"The American Veterinary Medical Association promotes the optimal health and well-being of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners does not strengthen this relationship and may, in fact, diminish it. Such changes in terminology may decrease the ability of veterinarians to provide services and, ultimately, result in animal suffering."

The Board of Directors of the American Kennel Club (AKC) adopted a similar resolution in 2003, stating in part that, the "AKC believes that the term guardian may in fact reduce the legal status and value of dogs and thereby restrict the rights of owners, veterinarians, and government agencies to protect and care for dogs. It may also subject them to frivolous and expensive litigation. The term guardian does nothing to promote more responsible treatment of dogs."

Similar opposition has been voiced by groups including the Cat Fancier's Association, the Pet Industry Joint Advisory Council, the National Animal Interest Alliance, the Responsible Pet Owners Alliance, and the American Veterinary Medical Law Association. Equine organizations appear to have remained silent to this point.

"What's the problem?" you might reasonably ask at this point. Anything that makes people more conscious of the fact that animals are not a disposable commodity and should not be abused must be a good thing. What could go wrong? So far, nothing.

Laws in Rhode Island and in the cities that have adopted guardianship language appear to allow "owner" and "guardian" to be used interchangeably, with the same rights and obligations attached to each. None of the revised laws have been in force long enough to know for certain whether the change is cosmetic or substantive. There is no doubt, however, that such mixed usage fails to recognize that owner and guardian have legally distinct, and very different, meanings.

The owner of property, according to Black's Law Dictionary and an enormous body of legal precedent, has the right to "enjoy" the property, and to "do with it as he pleases, even to spoil or destroy it, as far as the law permits." It is this bundle of rights, and the potential for harm, that make necessary laws that recognize the unique status of animals and that protect them from cruelty, abuse, and neglect.

A guardian, on the other hand, is a horse of an entirely different color. Strictly speaking, again according to Black's Law Dictionary and the courts, a guardian is a person who has both the legal right and legal responsibility to take care of another person who is incapable of taking care of himself or herself. Adults who are incompetent for some reason and minor children are examples of individuals who require guardians. The subject of a guardian's care is the guardian's "ward."

A guardian also might have a fiduciary duty to the ward, which simply means a legal responsibility to act in the ward's best interest, even at the expense of the guardian's interests. Guardians and owners, in other words, are fundamentally different, mutually exclusive entities. Owners own property, guardians protect the rights of incompetent individuals, and a law that uses the terms interchangeably is a legal contradiction.

The potential ramifications of this clear legal distinction between "owner" and "guardian" are enormous. Assume, for a moment, that "guardian" is not merely another name for "owner," and that a person actually can become the guardian of an animal in the strict legal sense. Implicit in this assumption must be the fact that the object of the guardian's care and responsibility, an animal, now becomes the guardian's ward, with associated legal rights that must be protected.

Any meaningful change in status from an animal owner to an animal guardian must, at some point, also encompass a change in the status of the animal from property to ward. Under the current state of the law, which recognizes only property and persons, the animal thus would assume the same legal rights as a child or incompetent adult.

If an animal is someone's property, the animal can be bought and sold, a simple legal transaction that results in a change of owner. If, on the other hand, the animal has the legal status of a ward with rights that must be protected, it is difficult to imagine a situation in which the animal legally could be sold (or even given away) by its guardian. Animal adoptions also would become far more complicated and expensive.

Under current law it is possible, in some situations, to justify the euthanasia of an animal for economic reasons, such as an illness requiring lengthy and expensive veterinary care. Euthanasia in this circumstance no longer would be an option if the caretaker is a guardian and the animal enjoys the legal status of a ward.

It also is easy to imagine an argument that it is not in the best interest of a Thoroughbred to be raced as a 2-year-old, or at all, or that dogs should not be exhibited at shows or used in field trial competitions, or that zoos violate the rights of their inhabitants. Commercial animal breeding in any form certainly would violate the legal rights of an animal ward, as would human consumption of animals for food and the use of animals in medical research.

These scenarios might sound quite far-fetched, and the possible outcomes might not be obvious consequences of the seemingly innocuous substitution of one word for another in a few laws. Nevertheless, a dramatic restructuring of the human-animal relationship is the stated agenda of some animal rights activists. Whatever your opinion on the status of animals, your support of, or opposition to, the guardian movement should be an informed choice, based on fact rather than supposition.

Courts frequently use the phrase "slippery slope" to describe a course of action that, once it is started, cannot easily be halted. Depending on how lawmakers and courts eventually interpret the true meaning of an animal guardian, the movement toward animal guardianship might be such a slope.


"Animal welfare" is a broad term that generally describes a concern for the health and well-being of animals, elimination of animal abuse and neglect, pet population issues, shelters, and adequate veterinary care. Proponents of animal welfare tend to work within the existing legal framework in which animals are property.

"Animal rights," as the term commonly is used, refers to attempts to change the property status of animals and secure legal rights for animals.

Organizations that support animal welfare, animal rights, or both generally depend on donations from individuals and organizations. Giving to charity is a personal choice, but it is important to become familiar with the specific agendas of the organizations you support. Most charitable groups have Internet presences, and general information about charities can be found through the Better Business Bureau and Internet sites such as and C. Toby, J.D.


Any change in the legal status of animals, whether intentional or inadvertent, will affect an extraordinarily large number of people. According to a survey conducted by the American Veterinary Medical Association and published in the Dec. 1, 2002 issue of the Journal of the American Veterinary Medical Association, nearly 60% of all households in the United States owned at least one pet during 2001. The survey results showed 36% of American households owned dogs and 32% of households owned cats. Total dog and cat populations were estimated at more than 60 million and 70 million, respectively. The survey also showed a horse population of 5.1 million in 2001, but the figures were skewed toward the low side because the total represents only horses owned by households as opposed to farms.--Milton C. Toby, J.D.

About the Author

Milt Toby, JD

Milt Toby is an author and attorney who has been writing about horses and legal issues affecting the equine industry for more than 40 years. Former Chair of the Kentucky Bar Association's Equine Law Section, Milt has written eight nonfiction books, including national award winners Dancer’s Image and Noor. He teaches Equine Commercial Law in the University of Louisville's Equine Industry Program.

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