Animal Law Breakthrough: Court Recognizes Dogs as Family Members with Christopher Berry

Prior to working at NHRP, he helped manage litigation at the Animal Legal Defense Fund, where he specialized in private civil enforcement of animal protection laws and related issues such as standing, justiciability, and procedure. And I'm so excited to have you here, welcome Christopher.

Christopher Berry: Thanks for having me. Also excited to be here and thanks for the lovely introduction.

Mariann Sullivan: One of the reasons I'm excited to have you here is that, you know, I feel like we've been talking about like big environmental issues and talked about Alligator, um, Alcatraz last week and, and this week we're going to be talking about an issue that is far more personal and yet I think is, I am sure you'll be able to do this, put in context is, is, so important.

And one of the reasons I feel that way is because when I, when I've taught animal law, I almost always, I mean, my first class is introductory, but my second class will always be on the relationship between tort law and animals and companion animals.

And everybody in the class, and whether it's the, uh, the student who knows absolutely nothing about animal law or the one who's really, you know, that's why they came to law school. They're all shocked. I mean, it is, I think it is, the issue that really brings home to people more than anything how crazy the law is when it comes to animals.

So before we get to the le, the specific legal issues here, which involve a, you know, a case, an ongoing case, uh, in brooklyn that people may have heard a bit about, um, can you just give us the background overview on the bizarre status of tort liability for harm to a companion animal in the US?

Christopher Berry: I think the best way to understand how messed up it is, is this, uh, I think it was a 2013 Texas Supreme Court decision, uh, Medland v Strickland. Uh, this was a, a case where, uh, a companion animal, a dog went to the shelter, family was told to come back on the weekend after the holding period to pick the dog up.

The dog had been euthanized in the interim. So there was a action against the city shelter for negligence for killing the dog. And the question was uh, under Texas law, whether you could get sentimental damages. So normally with property, you're limited to the market value. Someone totals your car, you don't spend a million dollars to un crinkle the car, you just get money to go buy a new one. But for certain forms of property even, that doesn't quite work. Like family heirlooms are an example of that. So Texas recognized sentimental damages and the issue was whether a, the death of a companion animal, uh, was limited to market value or whether you could get sentimental damages as you could in Texas for like a family heirloom.

And the Texas Supreme Court said, uh, no. For an animal, you're limited to the market value. And they, there was some like 18 hundreds case involving a, I think like a guard dog on a farm or something like that, that they said, we're just gonna stick with that really old precedent. And what was remarkable and why this is the example that I wanna lead with, is that there was this hypothetical like, well, what, what if the family had a family heirloom that was a taxidermied dog, and that was destroyed.

And the Texas Supreme Court, like to their credit, acknowledged that hypothetical. And they said, they kind of just shrugged. And they're like, yeah, like you could get sentimental damages for, uh, a taxidermied family heirloom dog that was destroyed, but not for a living one. And so to me, like that perfectly captures the absurdity of, of the current status of companion animal valuation under tort law.

Mariann Sullivan: Yeah, it, it, it really does. It's a great example. And, I also just wanna share that it's not just Texas. I think every single time this issue has reached, it, the the lower courts have gone different ways and tried different things, but every time it's reached the top court in any state, they've said no. They're, they're not worth anything pretty much because, you know, market value. Let's face it, your old dog ain't gonna bring a lot on the market.

Christopher Berry: No. In fact, it, you know, I've, I've haven't done this analysis, but I've wondered if even someone would, someone who intentionally killed, uh, like a geriatric dog that was costing a lot of money with healthcare, whether they might actually have a restitution claim.

They might be able to sue the owner for restitution. Like, I just saved you $10,000 on radiation therapy for your dog, so give me 10,000. You know? So it, it is absurd. And, um, yeah, and you're exactly right. This is, the Texas example is, uh, really representative of the nation at large, all the 50 states. There are some, but there is like some, a little bit of like turbulence too.

Is it, you know, decisions where they'll say, well you can at least recover the, if you have to go to the veterinarian to save their life, you could at least get the vet costs.

Mariann Sullivan: Even if they're more than the market value of the dog.

Christopher Berry: Exactly. Even if it's more than the market value.

Mariann Sullivan: Whereas with other kinds of property, you can't get repair costs if it exceeds the market value. But, so that is, that truly is a variation, a little exception.

Christopher Berry: Yeah.

and also, um, receiving emotional distress damages for intentional infliction. Right? But in, and it's, you're sort of likening it to like p punitive damages or sort of a punitive aspect there, but then there's still that recognition that like, you can be emotionally distressed when they, when you're a member of your family perishes.

Mariann Sullivan: And also, there's just a few cases, like there's that New Jersey case, I think, like they, they tried to up the, the, the, value of the dog by saying the dog could do tricks, as if that's what we value about our dogs. But they try to like bump it up a little bit in a fake way.

Christopher Berry: Yeah. And so I think this like absurdity, right? That they're the, the tricks and the, like your market value, but we'll still let you recover for veterinary costs to keep them alive... Uh, the, the taxidermy dog being able to have sentimental damages for destruction, but not the living family dog.

Like the, the, I think this is actually evidence of like, like incredible tension that's like brimming underneath. Like we have, we have this general rule that you're limited to the market value because companion animals are property. Like, that's sort of the general textbook, you know, sim the most simple kind of way of explaining it.

But when you really look into the details and really dig in, it's, there is incredible tension. And that's, I think that's what you indicated when you bring this up in your, in your classes. That there's that sort of disbelief at the current state as well.

Mariann Sullivan: Yeah. Which I think that shows what an important issue this really is in our relationship with animals.

It's where The rubber really, it, it hits the road, but people are pretty unsatisfied with where it's hitting the road, so to speak. Which is a horrible expression to use in this case since it was a car accident case.

Um, And uh, before, just in setting the scene, before we, before we, leave the setting, the scene, there is one state, Tennessee, that has done something a little different, right?

Christopher Berry: Is that the one that I think they have a statutory amount for it? Like a, $5,000 or something along those lines?

Mariann Sullivan: 5,000, a $5,000 limit. Yeah. And it doesn't apply to veterinary malpractice, but you know, it is since, since every court that considers this tends to say this is a matter for the legislature, it's worth noting that, well, one state did, legislature did, um, try to, uh, address it. Though, in every other state that has tried to address it, they haven't been able to get past the, um, the lobbies. But, we'll, we'll, we'll get into the policy stuff a little bit more, but for the moment, let's talk about this case.

And as usual, let's start with the facts. I think I mentioned that it was a car accident case. And I think these facts are pretty straightforward. So just tell us what happened, who these people were, and that...the incident that gave rise to this lawsuit.

Christopher Berry: Really, the immediate fact is walking a family dog through a crosswalk. So, a driver just blew through the stop sign and, almost hitting the, uh, the woman who was walking the dog who was on a leash and, uh, but in fact hitting and, and then killing the dog who died.

There was a security camera across the street that caught the whole thing, like quite captured the whole incident quite clearly. This was in New York City as well. Um, and one other fact that I think was pretty significant was that, that the dog had been the ringbearer for the, uh, couple's wedding previously. Yeah, which to me I thought was really uh, I don't know that it's material because, right, your dog is still a member of the family even if they don't do it, but it really drove home that...

Mariann Sullivan: Yeah, well you know, facts matter.

Christopher Berry: Yeah.

So there was this, there was no disputing that this was a member of the family according, um, in, in the eyes of this family as it would be for almost anyone who has dogs or cats or other companion animals.

Mariann Sullivan: Okay. Since this is tort law, there are variations from state to state, but we're talking about new, so we're talking about New York law here, and it is dramatically different from other, um, questions.

And since liability, I mean, we won't talk about liability it's not really an issue that's, uh, particularly at issue or of interest to us, but the primary issue here is damages.

And that has to do with the cause of action that they brought, which of course is negligent infliction of emotional distress, which is a tough cause of action under any circumstances. Um, and can you tell us what kind of harm this cause of action addresses and specifically under New York law, um, what you need to show in order to recover for a negligent infliction case?

Christopher Berry: With a infliction of emotional distress, right? That means that you've suffered like a psychic injury that was, you know, caused you to, to miss work or seek therapy or you know, other sorts of damage to your quality of life. I think there's sort of a, a, an issue like sort of a problem with that, which is you could claim emotional distress for anything, right?

Like, um, you know, maybe I'm, I'm frustrated because there's traffic on, on the way somewhere. There's a, some car accident that's getting cleaned up to the side and I'm, you know, you could, you could say, well, I was emotionally disturbed by that because I saw the wrecked car and it made me anxious to drive.

So, the way courts have, I think, uh, the way we've dealt with it is, uh, having, putting limits on when you can claim emotional distress, and particularly in the case of, of, of negligence, when can you recover? So you have to be really, there's like two material requirements here. That someone has to be you know, hurt, right? Uh, you have to witness someone being hurt. That person has to be a member of your immediate family. So that's the first requirement, uh, in New York. And the second requirement is, uh, you have to be within the zone of danger, right? So it's like you were, you were right there, you almost got hurt yourself.

And, um, a member of your immediate family, in fact, instead of you, they got hurt and you watched them suffer or perhaps die.

Mariann Sullivan: So it's very limited. The circumstances under which that this can apply are quite limited. Um, and I think particularly so in New York. And, and, and as you say, it's not because other people aren't emotionally disturbed by what's happened, it's because too many of them are.

You know, like if a, if somebody is killed, like their cousins are upset, their aunts and uncles are upset, their friends are upset, people who knew them, like they you at some point, you know, the court said, okay, I mean, we, we just have to have some limits here. And they have to be pretty sharp because we're not talking about anybody who was injured.

We're talking about, you know, it's also a, a claim that could be, um, fabricated. but even if it's not, I mean, a lot of people get upset when something terrible happens.

What I think is so interesting here, is that, um, one of the reasons for that is to cut off liability.

You know, tort feasors can only be so liable. They're liable for the wrongful death and they're liable for, for, you know, maybe loss of consortium or other causes of action. At some point, you, you have to say, well enough is enough. They can't pay everybody who was harmed by this.

In animal cases, they don't have to pay anything. No, there's no liability at all. Nobody has the right to recover 'cause the animal can't recover. And so there's no enormous liability to cut off. So I really think these issues are very, very different, but I don't think the courts have recognized that, and that's why it's so important to have animal advocates, um, in there explaining to the court exactly what the issues are.

And as far as I know, the plaintiff here was not represented by a firm that specializes in animal issues, not no shade. I mean, they might have been doing a great job, but how did you and other animal advocates get involved?

Christopher Berry: Before I answer that, I I, I wanted to sort of amplify your point about how there's, with animals, there's no, like, there's not, uh, the problem is there's too few liability.

And I think that that's actually really problematic because, uh, if, you know, if you think about this through like a Chicago economic school of thought. Like what are the incentives? If you're a groomer, if you're, uh, boarding dogs as like a kennel, if you're, uh, if you're making decisions like, should we kind of negligently cram a bunch of dogs in a shed, or should we replace this like dryer that's been malfunctioning at, at the groomer?

Um, if there's no liability, that's kind of a problem. Yeah. And you know, even, even the fact that there's also some strange incentives as well, um, in negligence cases where you're better off killing the dog than you are leaving them, like severely injured, but able to go to the vet, able to go to the veterinary clinic and get treated.

So that's, it's just a very, this kind of lack of liability, it, I think creates like a, a really perverse, uh, incentive structure. And I, and given a lot of negligence at kennels, borders, uh, you know, dogs flying cargo on airlines, like, I, I could list, I could list off a bunch. Act I actually think, you know, maybe veterinarians, but I actually don't think that they're the, the worst of it.

'cause, you know, they're, they're trying their best. Um, that, uh, yeah, very perverse incentive structure. So, anyways, that, that's an aside. You had asked how we heard about this?

Mariann Sullivan: Yeah, I, and it wasn't just you, there were other animal advocated who filed briefs as well, weren't there? The court so the court obviously, uh, was, and took them all very seriously as well. So it was obviously looking for information on the broader implications of this issue.

Christopher Berry: Well in July of 2024, so last summer, uh, the court, the trial court, who was figuring out what to do with this negligent infliction of emotional distress claim, um, and had, had it already briefed, I think for summary judgment. Uh, had sent out sort of an SOS like, uh, an order asking, listing off, uh, several animal groups, uh, you know, just kind of on all sides of, kind of all ends of the spectrum and saying like, please weigh in on this because I'm, I'm struggling with whether there should be, uh, a negligent infliction of emotional distress claim here. Uh, and so what that signaled to me is that, that the judge, I think was picking up on the very inequity that we've, that we've been talking about in this conversation, right. How can, like this, there's a sort of an absurd inequity with how these rules are working and I believe even said at some point had, had watched the video footage as well of this happening.

May, I don't know, maybe this, maybe the judge has dogs himself, maybe not, but seemed to be really be struggling with it. So, just sent out an SOS issued an put out an order, like if any of these groups wanna weigh in as amicus at the trial court, like summary judgment stage, like please do so.

Like, I would love to hear from you and here's like an amicus briefing schedule. And...

Mariann Sullivan: Does that happen? I have to say I've never heard of that happening before. Like?

Christopher Berry: No, I, I've, I have never seen that hap because the two really weird things about it were, one, soliciting amicus briefs. I, I don't think I've ever seen a, a court do that. May, maybe it's happened once or twice that I've caught wind of, but I've, in, in any context, I've never heard of a court doing that.

In fact, a lot of times you'll hear appellate judges, uh, saying that, eh, like a lot of amicus briefs aren't that helpful 'cause they're just sort of...

Mariann Sullivan: No, I, I I spent most of my career working at an appellate court and amicus briefs were mostly a pain in the ass, to be honest.

They're just like people spouting their, you know, who aren't that familiar with the case, spouting their own like opinion, but this is a very different issue because probably he was not, the judge here, was it a he? Aaron, yeah, was not getting the kind of briefing that he needed.

Christopher Berry: Yeah. Or, or, or feeling like there was some like unresolved question, like, because... yes. And well, and the other unusual thing too, this is a trial court.

So trial courts usually don't even have rules to accept amicus briefs. Not, and they, they can. I've looked into this in the past in other contexts, like, um, through like inherent authority of the court. Like they can kind of do anything that's like reasonable, that's not gonna get overturned as an abuse of discretion, so they can kind of make up any procedure as long as it's not abusive.

Um, but that was also unusual and, uh, there's a dynamic to this and I think it really underlies a lot of animal law where you have to dig quite far below the surface to really understand the inequity that's going on, or to ex to understand the, the like, kind of the flaw in the logic that it's not, it's not as simple of as going back to the last case in the 1980s or nineties that said, um, you know, there's no negligent infliction of emotional distress claim under these circumstances, right?

Like that's sort of the, I don't know, the cookie cutter way of, of doing law, and it works most of the time but in animal law, I think is, is different because both because of the like really like entrenched historic, like inequities that have been kind of like pre, that are presumed and kind of baked into the way the law is functioning right now.

And because of the fact that we're, that animal law is going through like a growth spurt and it's, and we're not, I don't think it's anywhere near finishing that growth spurt. So, so there's, there's a sort of a level of, um, like research and digging deeper and like, like sort of exposing like, like unburying, like really, really problematic flaws.

Um, and saying like, that's wrong and you should do something about that, your Honor.

Mariann Sullivan: Yeah, which brings up what i, I don't know whether that you were on the list that the court solicited, but I would actually be surprised if, if you were, because I'm not sure this is an issue that you are particularly identified with.

I mean, Non-Human Rights Project has, you know, pursued impact litigation and certainly in New York, so you're probably better known in New York courts than, than some other organizations. But, you know, frequently the cases have involved elephants other, uh, what they call charismatic megafauna, um, you know, these big animals against institutional owners.

Um, and i, I, I don't recall Non-human Rights Project being involved in this issue previously. Am I right, and if so, why did you decide to get involved this time?

Christopher Berry: Yeah, you're right. And the judge didn't include us on the list of organizations that he wanted to hear from. Um, but he did acknowledge that the legal, you know, the legal status of animals was being questioned and cited the Happy case.

So, one of our very, uh, astute um, senior attorneys here at the Non-human Rights Project, Spencer Lowe has, has, you know, all these alerts set up any, anytime anyone sneezes, and it sounds like Non-human Rights Project. So hat tip, um, yeah. So he, so he caught wind of this and, uh, because of the Happy reference.

And then, so that begs the question, why, why does a group that's spent so much time on, you know, habeas corpus right to liberty for chimpanzees and elephants, what, like, what, what does this companion animal valuation have to do with, with our work? And, and the short answer to that is that we're common law nerds.

That's really what the basis of our habeas corpus, uh, argument is. And the negligent infliction of emotional distress is a, it's a common law claim. And, and I could, there's reasons why that's like, important and germane, but it, it, it, it actually, it links up really strongly with our work, um, if you look past the surface level.

Mariann Sullivan: Yeah. It actually brings up, I, I had pulled out this quote, I don't know from where, but I think you said it, and I, it just really struck me that, that courts have a responsibility, not just the authority to advance animal legal status through the common law. I think that's just so, so important to remember. This isn't optional on the part of the courts.

Whether they struggle with these issues, it's their responsibility to do that. And also, I, I just thought, uh, something that you're obviously aware of, but that Steve Wise, of course was the founder of the Non-human Rights Project.

A lot of the work he did, you know, to keep himself alive, and to, you know, his actual practice had to do with this issue, interestingly enough. Though, I'm not sure whether he considered it part of the Non-human Rights Project work, but you know, there obviously are connections because he was also the original common law nerd. Um.

So you're in Brooklyn, uh, I understand in in what we call a New York Supreme Court, which confuses everybody else. 'In the country. cause That's our trial court is our Supreme Court. Um, and uh, so were there causes of action that were brought other than negligent infliction? There was a property damage, uh, cause of action brought as well, right? You know, loss of property.

Christopher Berry: Yeah, I think so. That, you know, those were, those are a little fuzzier to me because, simply because it's um, and, and, and probably to the, I would say even to the, you know, litigants themselves because that's easy to resolve.

You know, here's your $500 check, go buy a new dog. So,

Mariann Sullivan: Well, well, I, I would like to talk about that a bit if we have time, but I'll save that to the end 'cause it's obviously that's just one of my hobby horses.

I think you're, you know, the main argument here as you already laid out was this definition of family member in, in the co in the cases that have laid out this cause of action, they talk about how it involves, uh, specific family members who have been injured in, in these particular circumstances that can give rise to this kind of liability.

So you wanna expand that definition. You Can can you just kind of summarize what your argument is for why that does apply to a beloved dog?

Christopher Berry: Yeah. And, um, there's maybe sort of two aspects to that that I really want to key in on. So, one is that well, in, in New York, the definition of family member had recently been, um, expanded by the New York Court of Appeal to include grandparents. Right. And the, the idea, this is kind of, this is sort of in line with modern family law trends, which is more about like a sort of a chosen family and not necessarily like, like a nuclear, like one generation removed, uh, you know, parent child, sibling sort of definition of immediate family.

So there was, had been a decision, uh, a few years ago it was called the Green decision, that extended that to, you know, beyond that, that sort of nuclear family. So the question then of course is like, well, you know, c can this extension include, uh, a non-human family member as well?

And the answer to that is really going back to like basic principles of common law interpretation and, and, evolution, which is like that courts are supposed to consider, you know, societal norms, like interests of like justice and equity and fairness in deciding whether to you extend or evolve or, or modify or, or kind reinterpret, I suppose, uh, a, a common law doctrine.

And so our argument was really like, look, this is really out of line with how people feel about their animals and in, in a way that's like just profoundly unfair. And therefore in, in violation of, of your common law power. Um, we cited public opinion surveys. Like people are asked is, you know, are your dogs or companion animals a member of the, of your family, or are they like property or, you know, what are they?

And the overwhelming majority of people, like refer to them as family and barely anyone refers to their companion animals as property. So that's clearly out of step with the societal norms, right. And that's super important, right? Like, like who's a judge to say that like, they're not a member of your family when like 90% of Americans would say that they're part of your family? Like it's, it's sort of like why the obstinence? Right. And um, and of course it's, unfair, right? It's inequitable, so.

Yeah.

Yeah. And if I could a, and if I could sort of accent one point too, which is the, you know, you'd mentioned earlier the idea of that common law that courts, when they're exercising their common law powers, they don't just have the authority, but they actually have a responsibility do something. I think that that was really an emphasis that we, that we had that was really important and strategically designed because there's this, uh, I think, I think part of the thing that's holding judges back is a sort of like an, an amount of shyness about using their power. I think there's like this stigma of being like this like activist judge, but when your own high court precedent says you have a responsibility, like literally they literally, you know, obligation, responsibility. Like, like this, it's very, very, very strong, unambiguous language from, um, high court in New York and other states as well, that you're supposed to evolve the common law.

Like you're not sup, you're not supposed to say crazy things like, you know, dogs aren't members of the family ever. You're not supposed to say that. You're supposed to like, do justice, that's what you're supposed to do. And if, and if doing justice, you know, is a problem, like it's not the legislature's job to like solve every injustice, right?

It's the court's job to and it's the job of the justice system to do justice.

Mariann Sullivan: Yeah, especially When it's a common law issue, which means that the courts have the power to do that.

Christopher Berry: Right? And of responsibility and it, so it's actually the proper balance of power there is for the court to act justly.

And then there is a political process where, uh, for you could do legislation if need be constitutional amendments, you know, if the people want to kind of redefine justice, um, but in, in a, in some way, like, you know, that's a safety valve as well, but that doesn't... I think there's this like inertia this like fear of doing justice. And so a big strategic goal of ours in uh, filing this amicus brief was to try to embolden courts to do justice.

Mariann Sullivan: I had asked about the amicus briefs, but I forgot to ask about the fact that there were also a great deal of amicus briefs on the other side. And I think in this context of the question of do we expand the definition of family member, it's really important to consider the very odd position that so many of the opposition groups are in who really rely, they're all business interests that completely rely on animals being considered family members.

Um, and can you talk about a little bit about who, who was on the other side, of the, who filed some of the amicus briefs? There were a lot of them. Obviously, this issue really caught the attention of the industry.

Christopher Berry: Yeah the key ones, is this is sort of like, uh, I'm trying to think of the right, I don't wanna call them evil cuz I like to try to see the best in people.

But this, um, I would, I guess economically motivated trade group coalition that weighs in on these issues whenever they really, wherever they appear. So, uh, and really the main, the main ones are like the, uh, American Veterinary Medical Association, American Kennel Club.

Mariann Sullivan: I'd be happy to I'll do it for you.

Christopher Berry: I try, I really try to see the best... you know, humans are animals too, so I try to, I try to have a, try to keep that in mind. Um, but, you know, it is, it's, it's greed, it's, and it's economic. It's purely economically motivated. So, the Cat Fancier Association. So it's, it's really, you know, these are some of the main ones that come to mind.

But it's trade groups, like, you know, veterinarians and breeders, esentially.

Mariann Sullivan: Even though obviously their interests were not involved in this particular case, which was about a car accident, they still, uh, they still don't hesitate to, um, jump in. I, I'd just like to bring up a couple of, um, issues that have come up in other cases. One thing I've always thought of as interesting in the, in Wisconsin, when this case reached the, the, um, the top court, the court felt that there were too many possible species that could be included. What's your response?

You know, like people can have relationships with all sorts of different animals. Does that really matter?

Christopher Berry: Earlier I was talking about trying to like, like unbury, like sort of deep injustices, so on the surface level, maybe there's these, well, oh, what if you're really bonded to your pet iguana or something? Well, um, okay. If you dig deep enough, you go back to the like middle ages and the where, like that purpose of tort law, that's really like been the foundation of American tort law was established and it was to fairly compensate victims of wrongdoing.

That's, that's the purpose of tort law, and I don't, there's nothing in there about policing, you know, non-human species lines. There's nothing, there's nothing in there about that. It's a so, the really, the question is like, what's fair and reasonable compensation? Like that's the starting point. And, uh, it, yeah so these sorts of concerns about it's not reasonable to care to, like, love some species who, who are companions, uh, or concerns about some, you know, marginal effect on insurance rates for veterinary professions or so forth. Those are, in my view, those are act, those are policy concerns and it's, it's activist for judges to, to worry about those instead of the fundamental, um, equities and fundamental, uh, principles of the case. So it's this, it's this like, again, this like strange world where everything's kind of upside down and, and, and the activist judges are actually the ones that are policing this boundary, uh, based on policy considerations that belong to the legislature.

Mariann Sullivan: That is an excellent point. It's the judge's role to apply the law if the law needs to be changed, it's the legislature's role, and yet they're, um, they're really changing the law in this particular area in some ways.

I mean, you could look at it that way, anyway. Um, I, I think we should get to the decision because I've, I've been doodling around asking you about, um, positions, but, uh, I really wanna get to the decision because this was a very serious, well thought out, complex decision.

I mean, the, the kind you don't see in animal law cases a whole lot. So that in and of itself is, uh, is reassuring. And the court definitely recognized and acknowledged that it was treading new ground. I think that, that it was bound by precedent and, um, it actually, its decision was really rather, rather narrow.

And that may have been both because the court wanted to limit how far the decision went, but also because the court is a trial court. I mean, they can't, you know, if the appellate courts have already decided something, they have to find their, find their way through that. And I think the court did that very admirably, um, and didn't change the immediate family requirement. Found that at least certain companion animals should be included in the definition.

I don't know whether the court actually wanted its decision to be so limited to this particular, very particular factual situation or whether the court just had to limit, make sure it was very limited in order to fit through precedent, but it really did end up being a very narrow um, decision. Groundbreaking, but at the same time narrow just applying to this very particular factual situation. So what were some of the some of the limitations on, I mean, we're not talking about vet malpractice here, that's for sure. It's limited to this very particular situation, right?

Christopher Berry: Yeah, the, so the court navigated the issue that there was some, that there was already negative appellate precedent on the question of negligent infliction of emotional distress, by distinguishing this case from other cases, from that previous precedent.

And so the fact, emphasizing that where the, um, companion animal's a dog, where the family member is in the zone of danger, and even attach significance to the fact that, that the dog was on a leash, which that was a detail that wasn't included in, in prior precedent, but it does, it does add to the, the zone of danger because if, if you're, if you're tethered to the animal when they're hit, that that increases the magnitude of danger to you as well.

So, so, and I think that the trial court was technically right to do this. To be, to, to distinguish it in this way. Say that that under these sort of enhanced circumstances. It is, it is in fact, um, there is no precedent with that level of, of circumstance to it. And so, um, yeah. Now did they want it to be? Would they maybe hope for something that's, that's like more expansive? You know, all we know is what they wrote. So who knows? But I mean, but certainly the fact that it's that this rule is like so inequitable in the first place that the limitation on tort damages for companion animals is so like, so unfair and it, it goes so, uh, harshly against like sort of common sense.

Uh, and the fact that, that the judge wrote such like a detailed analysis and, and you know, went to the lengths to be, to be so technically correct that, that he could sidestep the prior precedent I think is, quite, it's quite telling.

Mariann Sullivan: Yeah. And I, I. You know, it's the common law. The court just has to decide the case that is before it. And, and different changes can wait for different moments when there's a different case. And, uh, though of course, those in opposition still lost their minds. As if the floodgates were opening. And floodgates are certainly a word that they love to use.

Uh they definitely love to use it. And, um, I think there are actually two aspects to their floodgates arguments. First, if we're counting companion animals as family members, wouldn't we include like best friend? Like, wouldn't we have to include all sorts of humans?

Like what is your, uh, you know, like your best friend? Does it. If your best friend is killed, obviously you're gonna be upset too. And I think that hearkens back to the, what we were saying before about, well, if your best friend, best human friend is killed, there's other forms of compensation that will be had, many, uh, whereas with animals, um, there will be nothing.

Are there any other, uh, is there any other reasons that we would extend it to your dog and not your best friend that you put in your argument?

Christopher Berry: Well, well they are members of the household. Um, so yeah, I think that's important. And, and of the, you know, going back to like surveys as well, like people, people use the language of family to describe their companion animals.

So that's something that doesn't apply to like, like a best friend or, I mean even to a roommate. So, uh, yeah. So there are, I think, just quite a few distinguishing characteristics and it's a strong argument.

Mariann Sullivan: But the other floodgates argument, which I think is really their their their big argument seems to be based on this idea that there are all these animals out there and apparently they're being negligently harmed all the time, and there are all these potential lawsuits, so there would be so much litigation. But isn't that what the courts are for? And isn't it a problem if all of these animals are being negligently harmed, or kid killed?

I mean, it's it's such a weird position that they are in making this argument, I think. But that is, I think, pretty much the argument that this would just, and of course, you know, they they like to act as if all of the litigation would be pretextual and, and, and it would just, you know, harass the courts with, uh, with frivolous litigation, which of course, courts have ways of addressing frivolous litigation.

It's not like this would be the only area in where there, which there would be frivolous litigation. How did the court address this floodgate concern?

Christopher Berry: Well, first of all, by, by going back to the narrowness of, of the holding, right. Which I think is, was appropriate at this trial court stage. And, and, um, you know, the issue, if it gets addressed on appeal, might be more holistic than that.

But, so I certainly think um, that that's one way of it. And, and you're right, there's this tension in this argument where it's like either there's this, like a lot of injustice that's going uncorrected... um, right. Like, well... so the problem is too much justice? Like that's, I mean, that's kind of an insane thing to say, and that's, and that's not just for torts, but it's also for, you know, I see this with, like cases against, you know, factory farms for example.

Um, like we see it in our, we we get dogged with this, for lack of a better word, uh, all the time in our, in our habeas corpus cases, that it's gonna, you know, what's the limit? Like if, but if it's, if it's just, then you're the justice system, do it. You know, like do it. And, and or, you know, there other claim is that this would be frivolous, right?

Like that, that they would just get harassed with frivolous claims. And you're right, there are ways of dealing with that as well, right? You can do, uh, sanctions, there's motions to dismiss. Um, I actually think, I think they're quite wrong. Like, just that people are motivated to bring frivolous lawsuits for harassment purposes.

Like, lawyers, like winning cases. We don't like, we don't like losing them. And there has to be some motivation to take the case. And that's either gonna be money, if it's a damages case and it's a private lawyer, or it's gonna be that you're gonna win and have a good impact.

If it's a, if it's like being done pro bono by like a nonprofit or, um, you know, or someone who's not getting paid at all. So there's, in my view, actually the problem's the opposite. I'm worried that if we, that if, if we open the gates, that there's still just gonna be a trickle going through potentially, um, in a lot of sort of areas of animal law.

Um, so I think it is, it is the wrong concern. And again, it's, that feels like a policy concern, right? Like, court administrative burden is not like one of the like factors of common law evolution analysis. It's like liberty, justice, equality, fairness. Those are the important considerations.

Mariann Sullivan: It almost is as if there's a underlying sense, which I think there's some truth in that our treatment of animals is, in so many instances, so bad that if we start addressing it, we don't know what we're gonna have to do. And you know, there's actually some truth in that, but that's not a reason to ignore it.

Christopher Berry: Well, I think that gets to, um, you know, questions about like cognitive dissonance and moral schizophrenia, which is like, pretty well, pretty well discussed in terms of like consumer choices. Like whether you go to the zoo, whether you, whether you eat bacon and eggs. Um.

That there's this kind of, uh, yeah, this is like a psychological dissonance. And I, I actually strong. I I don't know if I believe it 'cause I don't have, I don't, I just have sort of anecdotal experiential evidence for it. But, but to me it seems like that what's going on, even at the legal system.

'Cause of course you know, judges are human too. Right. And, uh, and I'll, I'll plug a, an interesting essay on this too by Matthew Liebman, uh, who I worked with at the Animal Legal Defense Fund. It's a spin on the, the legal realism, like what the judge ate for breakfast like, might determine like how they rule that day. And Matthew's spin on it was like who the judge ate for breakfast.

Mariann Sullivan: Yeah, exactly. Yeah. No, I, the underlying issues like pop up everywhere in everything we have to do with animals.

But getting back to the case itself, I, I don't want to stop talking about the decision without mentioning um, the, the, court noted that that, there have been a lot of changes in New York law and that I think gave the court some, some, uh, basis to go a little further, which just shows you that all of the work that animal advocates have done, like to get these little changes, uh, you know, can lead to better changes. Particularly I think the best interest standard in divorce cases.

And, uh, I think some, the trust issue, which you know, happened a long time ago, that you could have a pet trust and, and all these things give, give, courts a little, uh, boost to, to, allow them kind of to do, even though it's a different issue, to allow them to do the right thing. Do you agree?

Christopher Berry: Yeah. Yeah. And that, and that kind of goes back to the reason why the Non-human Rights Project ev, even though we're focused on fundamental rights for, for animals, and there's, you know, uh, companion animal economic valuation and under tort law isn't, doesn't quite, it doesn't exactly gel with like our historic work, but there's, but there's, um, there's kind of like a congruency, right?

Of, of all these things working together and, and sort of painting a picture. And I think it'd be incongruent to say, for example, that like, we're not, we're not going to, uh, exercise our common law obligation and authority to recognize that companion animals are members of the family, which like 90% of people that you would poll in New York would agree with.

Right. To say that, but then to deny that kind of common law evolution, but then to, but then to evolve a common law with regards to, you know, bodily liberty for an elephant. I think a lot of this kind of works in tandem now. They don't, it doesn't, it's not like a necessarily implies b, but when you have these factors kind of working together, it starts to paint a, it starts to paint a picture.

And when you, and when you connect the dots, it all kind of rises and falls together.

Mariann Sullivan: And, and gives the court less feeling that they're at risk in, in, holding something new and, and animal supportive they won't be made fun of or considered ridiculous cause there's all this other stuff going on.

It, it's all extremely important. Now, if there's nothing else you wanna talk about with the decision, there was something I promised I wanted to address. Um, it's, the property value.

I think the actual owner of the dog was the son and his negligent infliction claim was dismissed because he wasn't there. Um, he wasn't in the zone of danger, but they did award him the dog's inherent value, not market value, inherent value. Which I thought was really interesting 'cause I'm not exactly sure how that's defined in New York law. I'm not sure anybody is, as far as I can figure, they were only seeking $1,500.

But, can you just discuss a bit about how dogs and other companion animals have traditionally been valued as property? And and I've always wondered whether the value of companionship, um, which is an enormous value, similar to loss of consortium, could be thrown into that value, which would take it, I think, way over $1,500 in my opinion.

Like if you're sticking to a property analysis. Whole different analysis of this, exact same facts, but a different theory of recovery. We're not recovering for what happened to the plaintiff, um, Nanda Blaze, um. And that she was emotionally traumatized and, measuring it by how much trauma she suffered. She lost property, how much was the property worth, how much is this dog worth?

And I know that the Non-human Rights Project is not really fond of arguments, that value animals as property, but if you start valuing them a little higher as property maybe there would be another way to litigate these cases. Different theories. Same facts. All right. I, I don't know whether you wanna offer anything on that or you, you're just allowing me to expound my favorite theory.

Christopher Berry: Well, I think something that you're hitting on there is that the loss of the companion animal, the, like, the grief, the not, not being able to go on hikes with them. The the traumatic memory that you're always gonna hold onto for the rest of your life when you think about them.

That there's actually like several ways to go about that. Like the tort system act ha has several overlapping ways that you could provide some sort of fair compensation for that right? Through, through wrong, like kind of a wrongful death or a loss of companionship, uh, through emotional distress, uh, or through, um, this kind of like, like intrinsic valuation which is um, you know, for property that's not, where, there's not like a market for that particular kind of property. And, and, and, so I think that to me, that really just adds to the inequity of not recognizing it for any of them because you're actually, it's actually sort of this like compounded inequity where you're, where you're saying even though there's like multiple overlapping ways that we could provide some kind of like, compensation for your experience, for this terrible experience, we're just gonna say no to all of it.

And again, to me that starts to look more like that is more like judicial activism than, than it would be, than it would be to allow some of this through. Um, so that's sort of my main, my main reaction there. And I, and I do think that the intrinsic value actually could be higher.

Like, could be much higher 'cause like what's, what's

Mariann Sullivan: I think it should be much higher.

Christopher Berry: I completely agree.

Mariann Sullivan: How much is your dog worth? You, like if you had to give up your dog or your car, uh, which one, which one is going?

Like, how much, how much money do people spend on vet care for their, for their animals? I mean, the, these values are very, very high.

Um, and, and, yet to to value the animal, I mean, as I said, I think if I'm reading the decision correctly, is all they ask for $1,500. I do think there's New York appellate law on this issue at the mid-level, which kind of forecloses it. But you know, this case is going up on appeal, right? So, uh, maybe, maybe that could be, uh, I mean, this trial court may not have been comfortable going in that direction, but I can see including value of companionship, or however you wanna characterize it in the value of the animal. I think it's, I think that's what we value in our animals. We don't value whether they can do tricks. Well maybe a little bit.

Christopher Berry: Completely agree. In a way it sort of depends, like how do you, like, at what level of abstraction or, or generality do you def uh, define the, um, like the property that, that you're trying to evaluate? Is it like a dog?

How much does it cost to buy another dachshund from a breeder or, you know, go to the shelter to get one? Um, or is it, you know, this particular dog, right? Um, and that's like actually like, kind of, that's like almost priceless. Uh, really, if, if it's, you know, they're, they're gonna respond to the name, they're gonna evoke this like, love this feeling of love and bond and memories together when you go to your favorite park together. And if you just buy a replacement dog, you're not

Mariann Sullivan: You don't get any of that, we all know that. This is so obviously true!

Alright, so the, the New York's high, I mentioned there were a couple appellate court decisions, but New York's highest court, which we eccentrically call the Court of Appeals, even though it is the highest court, because we've already used up the term Supreme Court, um, has actually never reached this issue, is that correct?

And, and, you know, in other states, the highest court, as we mentioned before, has ultimately rejected it. Do you think this is the case that is going to go up?

Christopher Berry: It's true that a lot of high courts haven't addressed the issue, although over the last, like 10 years or so, there have been a handful.

So it is, it is really a hot issue. Unfortunately most of them, or perhaps all of them, really not direction that they should be on this. Um, so I do hope that this one goes to the New York Court of Appeal and I, there has been a notice of appeal filed, so it is gonna go through an appellate process, I think. There's some reasons to be optimistic here, right? Two of the, two of the judges that are on the New York Court of Appeal right now, uh, ruled in favor of bodily liberty for an elephant under the, under a common law expansion. So I, I would think that there's gonna be at least a few members of the court who are open, who are open to this and really take a hard, fair look at it.

So I have some optimism that, that this case or, or another one in, in New York could be the one to finally break through this historic inequity.

Mariann Sullivan: Yeah, And it might help that this is a very narrow holding and that's how the um, that's how the common law works. It can be broadened in the next case.

It doesn't have to, you don't have to decide the whole thing all at once. So since last we spoke, you, you have left ALDF, I think the last time I interviewed you you were still with ALDF, to head up the Non-human Rights Project.

I mean, I wanna hear what's happening there, aside from this case, but I also wanna hear your perspective on, given what's happening to animals and the world and democracy and the whole big picture and the crisis of factory farming, why does this issue matter?

Christopher Berry: I think it's really symbolic of the entire sort of injustice with animals, because what you have here, uh, in, in our, in the Non-human Rights Project cases, which for people who aren't familiar, it's, uh, these are state common law habeas corpus cases. We're bringing them on behalf of like animals with a scientifically indisputable, uh, degree of like cognitive autonomy.

Uh, no matter really, no matter how narrowly you define it, right? They like elephants and, and great apes that have, uh, language, like chosen families, um, preferences about like what to do, personalities, like self-awareness, ability to recognize themselves in a mirror, like memory, planning for the future, like by really any sort of measure or standard of, of autonomy, they're autonomous.

And so we're asking courts to recognize that they have precisely the kind of liberty interests that are supposed to be protected by habeas corpus. And habeas corpus, really, the sort of simple way of explaining it is it provides, uh, individuals with a, uh, like a procedure to free themselves or to become free from an unlawful or a wrongful confinement.

Essentially we're trying to protect their liberty interests. Like the law cares about liberty. They care about liberty. So courts should care about their liberty. The key part there is whether they're non-human or human, it shouldn't, it shouldn't matter if you're non-human, if you have, if you have, uh, a strong liberty interest.

And so that's why our work is important beyond the suffering of the individuals who we're bringing these cases on behalf of, um, right. There's, uh, evidence, for example, elephants in, in, in zoos, they lack so much enrichment and space that they actually suffer brain damage. They, uh, are commonly engaging in like stereotypic behavior.

Uh, in colder climates, they're like left in barns for several months over the, over the course of the winter. Taken from their family, um, you know, forcibly bred and then, and then their, their offspring are taken from them to go to other zoos. So it's really, it's really a horrible system. It's a horrible injustice for them, but it's really, um, you know, at its core, confronting the justice system with like this idea that you can matter even if you're not human. And so that's why this is so important.

Mariann Sullivan: Yeah, I think it's, I mean, this is, this is an incredibly important moment of change, and this is one of the things that we definitely have to change.

I, I'm very grateful for the work that you're doing the big, the big picture kind of work. Uh, 'cause with animals there's so much suffering, it is easy to get drawn into, like addressing the individual issues of suffering and it's very important for somebody to be doing that big picture.

Um, So can you go into a little bit more specifics about what's going on at NhRP?

Christopher Berry: Yeah. Let me, you know, I wanted to sort of like add to the stakes or sort of explain my own, like personal, like, why I gravitate towards this area as well. Um. Which is really just my frustration with the status quo.

At ALDF, right? Like one of the things that I did a lot there were like bringing, um, animal cruelty sort of cases, but through like a private right of action trying to, uh... You know, you have a prosecutor who's a government who's not doing anything for an animal cruelty or maybe, or an Animal Welfare Act case even.

So how, like, how can we, how can private advocates sort of get that restraining order or injunction, the way that we easily would be able to if they were human victims of some, some sort of violence or neglect? It, it was just so frustrating. Um, right. We would bring, there's this, uh, uh, theory of standing called like a haven standing, where an organization that like diverts resources to counteract some, uh, or in response to some illegal activity towards animals, like they, they can sort of claim that that diversion of resources, right? Like sending a letter to the prosecutor, like politely asking them to enforce the law. That, that those sorts of activities were the basis for standing.

And sometimes we would win those, and sometimes the courts would say we, that we don't, that, you know, it was a self-inflicted injury or something like that. And like there was like nibbling around the edge quality to like the standard playbook. The one, like the one, the one that's like successful most of the time, you know, in over 50% of cases, like ALDF has a great track record.

Um, but it was really like gnawing at me that there were so many like filters and limitations and that, that the solution is like, that the animals matter. Like that, that they should matter in the eyes of the legal system. And the, that the problem with like, you know, in, in a cruelty case, isn't that the animal, you know, that some human went to the zoo and like saw an animal in a bad condition, like that's not actually the, that's not the core problem. And so while this isn't, um, you know, the Non-human Rights Project isn't, you know, hasn't brought like anti cruelty cases or anything like that. What the Non-human Rights Project has done, like really successfully is like just saying like, we're bringing this case on behalf of the animal.

It's the injury to the animal that matters. Like, you know, Nonhuman Rights Project on behalf of Happy and have generated like a worldwide conversation about that. And had, you know, several judge, like several judges, uh, including three on the New York Court of Appeal, you know, writing sympathetically about us.

So there's like, there's something that I think that's really resonant about this, like, about this honestly and directness of calling a spade a spade. Right. Um, so I think it's a really like inspirational organization and this like, like sort of animal centered approach to animal law is, I think uh, exactly what's needed. So, you know, excited to basically to be a part of that and to work with the, all the brilliant minds at the Non-human Rights Project to make the world a better place in this regard.

Mariann Sullivan: Yeah, it's incredibly valuable work. Can you just tell us a few specific things that you're working on?

Christopher Berry: Yeah, so I, I think this amicus, um, strategy is something that we're you know, experimenting with. And it kinda goes to that same core issue that I was, you know, talking about like, the reason that the Nonhuman Rights Project is so valuable is because we're trying to say that non-human individuals can matter.

And that there's something that's almost kind of activist about denying that, about sort of, you know, saying that a dog's not a member of family or to say that Happy doesn't care about her liberty. Um, and so the dismantling that really the bias against non-human, um, individuals and the denial of their legal status, is something that's common amongst both our liberty cases and this Deblase case. We'd also, uh, filed an amicus brief in a right to rescue case in California. And that, that, that's a case where activists had, uh, walked onto a factory farm and taken like, uh, what the evidence appears to support and what they say were, uh, animals who were, you know, being neglected and dying and, you know, save them.

And the, the particular issue that we weighed in on was purely, uh, whether as a common law defense, the right to necessity should recognize that cruelty to animals is a significant evil. Um, because that, that's at issue in that appeal, whether animal cruelty is a significant evil.

And we kind of along this the same basis that like non-human animals matter, that there's a sort of incongruity to having the common law, like not advance in these important ways. We're wanting to help sort of foster these like sort of other like tangential issues to our main work in order to inspire judges to use their common law power.

That's kinda like one bucket that we're, that we're doing. And then, um, another thing that I'm really excited about too is we're really doing a deep dive into research. Um, thanks to, Rebecca Garverman, who was on your podcast a few months ago when she was, uh, joining us to, to do a deep, a deep dive into what we're calling, uh, like procedural rights for animals.

And that's some of these maybe not his headline, grabbing, grabbing as like bodily liberty, but I think still really important, which is like the ability to like file the thing and to, to get the hearing, to get the remedy to actually support your case. Uh, these sorts of procedural rights are actually extremely important because in order to have really, like any right at all, you have to be able to, to get to the end of the finish line, you have to be able to get through, through your entire process.

You need to be able to get, to have your day in court where you try to prove your claim and you need to be able to get an enforceable remedy as well. And I think that that's something that's, that gets overlooked a lot not just in like the animal rights discussion.

Like, you know, they're, they're just their right to have like a legal process, but also in the animal movement kind of at large. Is this like bottleneck that it's like so hard to even just get into court, to have standing, to have a right of action to enforce laws, whether it's a common law right to bodily liberty, or whether it's like, kind of like a statutory right not to be abused or neglected, that animals should be recognized and have the ability to do that.

So we're, so we're sort of exploring that space and see if there's any, if there have been any overlooked opportunities there that, that we should be investing more of our bandwidth into.

Mariann Sullivan: That sounds very exciting. I'm looking forward to hearing more about that 'cause I think there are many hidden opportunities, especially in like, well, not especially, but to some extent just in the statutes, like the 50 different sets of very complicated, sometimes archaic statutes actually there could be some opportunities there.

So I'm very, very happy to hear that you're looking into all of those topics and we'll be looking forward to hearing more from you.

And unless there's anything that I didn't ask you that you wish I had asked you, I guess, I guess it's time to tie this up and I'm so grateful to you for joining us today.

Christopher Berry: Yeah, well thanks for having me, and I was super happy to talk.

Maybe I'll, I'll end with what an illustration on that, that last point about there being opportunities in the statutes. I think there's a, I actually think there, the, like one illustration that really drove this problem home for me was, uh, in California. Like we celebrate prop two, which was a proposition that cost millions of dollars, this like national story in 2008 that said, you know, he hens in battery cages, calves raised for veal in crates, and gestating pigs like had to have enough room to like stand up and turn around, you know, trying to abolish the extreme confinement of those three types of farming.

That was in 2008, but in 1970 or was it maybe 71? Uh, the state of California en enacted, uh, like actually a what appears to be a much broader version of that, which simply said, anyone who confines an animal shall provide it with an adequate exercise area. So it's, it's...

Mariann Sullivan: it's so crazy that that law exists. So crazy.

Christopher Berry: Penal code 597t if anyone wants to look it up. And, uh, to me it, it's kind clearly should have applied to like extreme confinement. And yet there was no example of a prosecutor ever enforcing this against a, intensive confinement on a factory farm. Clearly the factory farms themselves either didn't know about it or they knew about it and they just thought they could get away with it, and they, which they did. And then there were a series of cases by animal groups. There were like four, four cases uh, brought by like Humane Society of the United States, Humane World, now, um, ALDF, I think Farm Sanctuary had one as well, trying to do this through like civil means, saying like, oh, this is like a violation of consumer protection laws because like this cruelly produced milk was sold to people, and all of those cases failed on standing grounds or like right of action grounds.

Like there was no procedure by which to that. So the court never ruled on the merits of that, of those claims, even when advocates were pushing the issue. Uh, instead it was, they were just like flushed down the drain on these procedural questions. And that's just like one example, right? Um, you know, one state, one case study.

So just imagine a world where, like, where our rights, you know, our right to vote, our right to free speech where, uh, our right not to be like stalked or, or harassed or assaulted, our right not to be discriminated against, right, like if, imagine if all of these legal rights, uh, like we still kind of kept them on paper, but the only way to enforce it would be to write a letter to the government and hope that somebody at the government would bring the claim for you.

Like, would, would anyone consider that acceptable? Uh, I, I think the answer would clearly be no. So this is that to me, just like a huge, huge bottleneck. Um, and, and legal rights for animals, I think, is the best solution to that.

Mariann Sullivan: Yeah, absolutely. Very exciting work and and really ties into these dire times we're living in. They're dire, but changing times present opportunities and, and let's hope that they do for animals. So, um, thanks for joining us today, Christopher.

Christopher Berry: Thanks for having me.

Mariann Sullivan: And thanks to all of you for tuning into the Animal Law Podcast. Please remember to subscribe on your favorite pod catcher and or on YouTube. Thank you so much to Vicki Beechler, Jen Riley, and Akber Kahn for their assistance in producing this episode, and I'll see you next week on the Our Hen House podcast, which will start with Rising Anxieties on Tuesday.