Horses and other animals are the personal property of their owners. This is a basic tenet of the law in all 50 states and it means that the owner of a horse, or a dog, or a cat that is harmed by someone else can win only the economic value of the animal in a successful lawsuit. Monetary recovery for emotional distress, pain and suffering, and loss of companionship generally are not available for the loss of an animal.

All personal property is not created equal, though. Animals enjoy a special status because they are living creatures that depend on their owners for food, water, shelter, and care. This dependency has generated a variety of state and federal animal protection laws, some good, some not so good. The clash between the legal status of animals as property and their special treatment under animal protection laws has lead to numerous creative attempts by animal owners to recover non-economic damages.

With a few notable exceptions, attempts to sidestep the economic-damages-only mantra have failed. Most recently, in Scheele v. Dustin, the Vermont Supreme Court affirmed the well-established legal standing of animals.

The question in Scheele was how a court should measure the damages for the loss of a much-loved family dog. The case did not directly address horses, but the decision is a reliable indicator that the loss of a horse would be treated no differently.

In July 2003, the Scheele family was vacationing in Vermont. The family dog, Shadow, was playing off-leash when he wandered onto the private property of the defendant, Lewis Dustin. Dustin was sitting on his porch, armed with a pellet gun and planning to shoot squirrels. This was an incident waiting to happen. Although it was undisputed that Shadow did not threaten Dustin or pose any danger to him at all, he shot the dog with the pellet gun anyway. Shadow died as a result of a hemorrhage caused by the wound.

The trial court awarded the Scheeles the full economic value of Shadow—$155. The trial judge also considered whether non-economic damages were appropriate and reached the conclusion that Vermont law did not allow recovery for the emotional distress resulting from the death of Shadow, because animals are the personal property of their owners.

The Vermont Supreme Court agreed.

The Court acknowledged that "categorizing a beloved pet as mere property fails to recognize that such an animal’s ‘worth is not primarily financial; . . . its value derives from the animal’s relationship with its human companions.’ " Despite that special relationship, the Court said, case law in Vermont and other states is clear: Non-economic damages are not available in property actions.

There also was a public policy component to the Scheele decision. The Court reasoned that allowing non-economic damages for the loss of a pet would offer greater compensation for the loss of an animal than for the loss of a close human friend, or relative, or co-worker.

The Vermont Court said that animals occupy a special place in the law, somewhere between ordinary property and children, but that property law applies when an animal is harmed. Are they right about that? Should monetary damages for emotional distress, pain and suffering, and loss of companionship be available to the owner of an animal that is harmed or killed through the actions of someone else?