Divided Court affirms, as discretionary, a “pet allocation” that factored the husband’s denial of visitation during separation. in disregard of “Zola’s emotional attachment to wife”

 LaRiviere v. Shea, 2023 VT 33 

CARROLL, J.  Husband appeals a final order granting wife ownership of the family dog in this divorce action. We affirm.

Section 751 of Title 15 gives the family division authority to order an equitable division of marital property after considering all relevant factors.15 V.S.A. § 751(b) ("In making a property settlement the court may consider all relevant factors, including [statutory criteria]."); Hament .v. Baker, 2014 VT 39 , ¶ 7.

On appeal Husband argues  that the trial court  misapplied the pet-allocation factors set out in Hament and authorized by § 751(b).

Because  few of the statutory factors apply to pets, Hament held that  § 751(b) “permits the consideration of additional relevant factors.” Id. ¶ 12. We outlined two factors not in the statute that were appropriate for courts to consider in this context: “[1] the welfare of the animal and [2] the emotional connection between the animal and each spouse.” Id. ¶¶ 12- 13  The family division enjoys wide discretion when dividing property and must only “provide a clear statement as to what was decided and why” Id.

The court found the parties adopted a dog together before their marriage, which they named Zola. Zola appeared to be emotionally attached to both parties. Each regularly spent time with Zola and maintained a strong emotional bond to Zola They shared equally in the expenses and care for Zola until the spring of 2021. When the parties first separated, each agreed to have Zola every other week on an alternating basis. After moving out of state, however,  husband  unilaterally and without explanation cut off wife from contact with Zola.

The trial court correctly identified 15 V.S.A. § 751 and Hament as the appropriate authority and provided a clear explanation about what it decided and why. Applying the two Hament factors, the court found that husband and wife were each able to meet Zola’s needs, including providing play time and medical care. The court found that each party had strong emotional bonds with Zola, although wife’s bond seemed to be greater. The court was troubled by at husband’s unilateral and unexplained decision to cut off contact between wife and Zola, stating it “call[ed] into question his regard for the emotional attachment that Zola feels toward [wife].” On balance, it concluded that the two factors favored assigning Zola to wife. 

This satisfies  Hament, which merely requires a clear statement about what it decided and why. Id. ¶ 7,  ¶ 20. 

The dissent mischaracterizes a single finding—husband’s disregard for wife’s emotional connection to Zola—as engaging in a custodial best-interests analysis, which would be unlawful in this context See Hament, 2014 VT 39, ¶ 10 (“In contrast to a child, a pet is not subject to a custody award following a determination of its best interests.”). Neither party raised the question the dissent focuses on, and the trial court did not consider it. Husband’s disregard for wife’s emotional connection to Zola is inherently a finding relating to Hament’s factor regarding “the emotional connection between the animal and each spouse.” Id. ¶ 13

Even if we were to find that disregard for Zola’s feeling toward wife does not neatly fit into either Hament factor -- though it plainly relates to both -- we would affirm the court’s decision. Nothing in Hament  limits the family division’s discretion to certain factors  As discussed, § 751(b) and Hament both permit the court to fashion an appropriate order based on “all relevant factors.” The trial court has considerable discretion in this posture and, absent entirely withholding its discretion or exercising it for clearly untenable or unreasonable reasons, we will affirm.

For these reasons, the court did not err in awarding Zola to wife.

 Affirmed.

 COHEN, J., dissenting. I would reverse and remand on the grounds that the trial court’s decision exceeded the scope of the factors identified in Hament, ¶ 13 for determining pet ownership in divorce proceedings. The court applied a best-interests standard appropriate when determining child custody but inappropriate for pet allocation.

It is inappropriate and an abuse of discretion to allow best-interests factors to seep into a property-division analysis beyond the two pet allocation factors this Court has already indicated are appropriate. See Hament, ¶ 13. Whether or not husband has regard for the emotional connection between Zola and wife is irrelevant to the pet-allocation analysis.

This Court already held in Hament that a property-division proceeding cannot end in shared ownership of a pet; it would be logically inconsistent to then rely on compliance (or lack thereof) with a shared-ownership agreement as evidence weighing in one party’s favor in such a proceeding. Id. ¶ 6.

Further, regard for the emotional connection between the pet and the other party is categorically unnecessary when considering pet ownership.

The trial court impermissibly considered factors beyond the scope of Hament. I would therefore remand for the court to reconsider the evidence under the correct legal standard.  I am authorized to state that Justice Waples joins this dissent.

How cited

SCOVT NOTE.  Hament held the welfare of the animal may be considered in final disposition, also noting, "Like most pets,[a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions."  

In addition to confirming that the statute expressly permits consideration of relevant factors other than those enumerated in § 751(b), Hament  held the Family Division has no authority to impose an enforceable joint custody or visitation order for a dog. An order of "pet allocation" is a final property division order not subject to modification. Even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division:

Divorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time.

Hament ¶ 19. (Crawford, J.)

SCOVT NOTE ON THE LAW OF PETS

©2009- 2023 Allan R Keyes, Esq., all rights reserved


The finder of a lost dog, by caring for it and sheltering it for over a year, became its rightful owner. Morgan v. Kroupa, 167 Vt. 99 [filed September 5, 1997], noting that courts simply cannot evaluate the “best interests” of an animal.

Town, under dog control ordinance, validly transferred possessory interest in a lost dog to adoptive owners, even though the true owner was known. Lamar v. North Country Animal League, 170 Vt. 115 [filed November 12, 1999], noting that although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal would be unsuccessful.

Pets are not subject to the law of conversion-- but a horse is. Hegarty v. Addison County Humane Society, 2004 VT 33 [filed April 2, 2004], noting that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests.

No damages may be awarded for lost companionship or emotional distress resulting from the wrongful death of a cat. Goodby v. Vetpharm, 2009 VT 52. [filed May 8, 2009] noting that there may be a more appropriate measure of damages for the tangible loss of pets due to the negligence of others based on the particular pet’s value to its owner, beyond simply its value to a stranger in the market.

Cat precedent applies to dogs. Court refuses noneconomic damages for the malicious destruction of pet dog. Scheele v. Dustin, 2010 VT 45 [filed May 21, 2010] noting that pets occupy a legal realm somewhere between chattel and children.

Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition. Hament v. Baker, 2014 VT 39 [filed April 25, 2014] noting that, in contrast to a child, a pet is not subject to a custody award following a determination of its best interests; but that, in awarding the dog to one of the parties the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse.

Family Division "Pet allocation"  order properly considered, under Hament ,  that  husband’s denial of visitation during separation showed lackof "regard “for the pet's emotional attachment to wife” LaRiviere v. Shea, 2023 VT 37(divided Court )

Liability for dog bite is based on negligence. Martin v. Christman, 2014 VT 55 [filed 13-Jun-2014], reaffirmiing the Court's longstanding rejection of strict liability in dog bite cases, and noting that, with the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.

Landowner had no duty to passing motorist to prevent escape of horse not in his control. Deveneau v. Wielt, 2016 VT 21 [filed March 4, 2016].

Search warrant for dogs was not overbroad in part because the law may provide protection to dogs in their own right “as living, sentient beings.” State v. Sheperd, 2017 VT 39 [filed June 2, 2017].

Although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal found to be a threat to others. Gill Terrace Retirement Apartments, Inc. v. Johnson, 2017 VT 88 [filed October 6,2017].

Neither landlord nor guest of tenant/dog-owner owed a duty to passerby injured when pit bull escaped because they had no "reason to know" that the dog in question posed an unreasonable risk. Gross v. Turner, 2018 VT 80 [filed August 10, 2018], noting that landlords are not obligated to conduct background checks on tenants’ pets and that a dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm.

Pets are not subject to the law of conversion-- but a horse is.

Hegarty v. Addison County Humane Society, 2004 VT 33 [filed April 2, 2004}

SKOGLUND, J.On suspicion of inadequate care, defendant Addison County Humane Society (ACHS) seized Suzanne and Elizabeth Hegarty's elderly mare, Paka. The Hegartys sued ACHS in Addison Superior Court alleging claims for conversion and intentional infliction of emotional distress. The superior court granted ACHS's motion for summary judgment and the Hegartys appealed. we affirm.

The Hegartys argue that when ACHS seized Paka it unlawfully withheld possession of their property in exclusion and defiance of their right and the court should have found a conversion as a matter of law.

Initially Hegartys  contend that the trial court erred when it relied on Morgan v. Kroupa to characterize Paka as a pet and thus not subject to a conversion claim. 167 Vt. 99, 103-05, 702 A.2d 630, 633-34 (1997). We agree.

The trial court correctly cited Morgan for the proposition that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests. Id. at 105, 702 A.2d at 634. We do not quarrel with this analysis, but rather with the court's suggestion that our Morgan ruling supports characterizing Paka as a pet.

 In Morgan, we explicitly distinguished between pets — dogs, cats, and hamsters — and "agricultural animals with substantial economic value." Id. The fact that a horse may also be considered a pet by its owner does not remove it from the category of agricultural animal with respect to the property interests at issue in a conversion claim. Id. Paka is not a pet and the trial court's ruling to the contrary was in error.

There is no dispute that the Hegartys are Paka's rightful owners or that, by seizing the horse, ACHS was withholding possession of Paka from them. The question is whether that deprivation was lawful. . . . 

Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiffs-Appellants.. . .

How cited

Search warrant for dogs was not overbroad in part because animals are living, sentient beings to which the law may provide protections in their own right

State v. Sheperd, 2017 VT 39 [Filed June 2, 2017]

ROBINSON, J. In this case involving multiple counts of cruelty to animals, defendant appeals the trial court's denial of a motion to suppress arguing that: the warrant was unconstitutionally broad in allowing the search for and seizure of any animal found at defendant's home. We affirm on this issue.

We reject defendant's argument that the warrant was unconstitutionally broad because it authorized the officers to search for and remove any animals, although the warrant only listed two specific pit bulls. Probable cause in this case supported the warrant's full scope and the warrant's language was sufficiently particular. We conclude on the record of this case that once the animal control officer established probable cause concerning the dog on the porch, she had probable cause to search for and seize all dogs at defendant's home.

Additional considerations come into play when a warrant calls for the search for and seizure of animals. This Court has recognized that nonhuman animals occupy a unique legal status in that they have traditionally been regarded as property but are nonetheless "different from other property." Hament v. Baker, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461. Accordingly, animals "generally do not fit neatly within traditional property law principles," but instead "occup[y] a special place somewhere in between a person and piece of personal property." Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (quotation omitted). 

Various laws limit peoples' ownership rights over animals, requiring them to provide a minimum level of care to animals in their possession and prohibiting them from treating animals the same way they might treat true, nonsentient property. See, e.g., 13 V.S.A. §§ 352, 352a (criminalizing cruelty to animals); id. § 386 (prohibiting confinement of animals in motor vehicles when conditions are dangerous, and allowing state agents to remove animals from a vehicle to prevent harm). This special treatment of animals reflects a recognition that animals are living, sentient beings to which the law may provide protections in their own right. Hament, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461.

Animal welfare is a factor we must consider when determining whether a search or seizure was lawful

How cited

SCOVT affirms summary judgment that dog control ordinance validly transferred possessory interest in a lost dog to adoptive owners.

Lamare v. North Country Animal League, 170 Vt. 115 [Filed November 12, 1999]


MORSE, J. Plaintiffs Chasidy Lamare and Charles Arnold appeal a summary judgment of the Lamoille Superior Court in favor of defendants North Country Animal League, Darcie Fitzgerald, and John and Jane Doe. Plaintiffs raise numerous claims challenging the court's ruling that their possessory interest in a lost dog had been transferred to defendants under the Town of Wolcott's dog control ordinance. We affirm.

Plaintiffs were the co-owners of a five and one-half year old female German Shepard named Billy who was found at large by a couple who brought her to the Lamoille Kennel on June 3, 1997,which in turn gave her up for adoption on July 8, even though on July 7, plaintiffs arrived at the League and identified their dog.

This case, in contrast to Morgan, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances.

In this case we are bound to conclude that the town's actions fully complied with its animal control ordinance and that its ordinance provided ample notice to plaintiffs consistent with state law and due process requirements.

We conclude that the provision of the ordinance authorizing the town to sell or otherwise dispose of the animal in a humane fashion constituted a necessary and essential power under the enabling statute, and therefore did not exceed the town's authority

We also conclude that the qualified right to possession of dogs and the strong public interest in assuring their permanent placement in a suitable environment, amply supports the town's decision to provide for the sale or transfer of impounded dogs if unclaimed after seven days.

Morgan recognized that a dog is an inherently social creature whose “value derives from the animal's relationship with its human companions.” Thus, while municipal shelters or pounds may provide temporary safety for the public and security for the animal, long term residence in such facilities is decidedly not in the public's or the animal's interest.

We note in this regard the several studies cited in the amicus curiae brief of The United States Humane Society which demonstrate that long term confinement is severely detrimental to the health of dogs and a considerable expense to the impounding agency.

The owner of a lost dog may be expected to make reasonable efforts to locate an animal by contacting humane societies and other agencies and checking other public locations where notices may be posted. Only in the limited circumstances where the owner of a lost dog has not complied with the license requirements, and has failed to take the reasonable steps of inquiring with the local pound or checking notices in the town office and other public places, is it possible that an owner will fail to receive notice within the seven-day notice period. The fact that plaintiffs in this case did not take these reasonable steps does not render the ordinance unconstitutional.

We conclude, in sum, that the town's posting of descriptive notices in the town clerk's office, post office, and village store—in conformity with the ordinance—did not deprive plaintiffs of their constitutional right to due process.

The actions of the League in this case was, to say the least, insensitive in its dealings with plaintiffs. Although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal—a claim not alleged here—would be unsuccessful.

Beth Robinson of Langrock Sperry & Wool, for Amici Curiae the Humane Society of the United States.

How cited

SCOVT Note. The Court's suggestion that an action would lie for "the emotional distress or other damages resulting from the negligent handling of an impounded animal" was premature. See Scheele v. Dustin , 2010 VT 45 (affirming judgment denying recovery for emotional damages for the intentional killing of a pet dog); Goodby v. Vetpharm, 2009 VT 52 (denying recovery for lost companionship and emotional distress resulting form death of pets.)

Divided Court affirms ruling that finder of lost dog, by caring for it and sheltering it for over a year, became its rightful owner.

Morgan v. Kroupa, 167 Vt. 99 [filed September 5, 1997]

MORSE, Justice. Defendant Zane Kroupa appeals from a judgment awarding possession of a dog named Boy (a/k/a Max) to plaintiff Mary Morgan. We affirm.

Defendant adopted a mixed-breed puppy when it was six to eight weeks old and trained it to be a hunting dog. In July 1994, when the dog was five years old, it broke free of its collar, ran away and became lost. About two weeks later, plaintiff found the and brought it home. Plaintiff took care of the dog and fed and sheltered it.  In September 1995, a friend of defendant's told him that he had seen the dog at a house only two miles down the road. Defendant drove to the house, the dog jumped in his truck and defendant left with the animal.

Shortly thereafter, plaintiff brought this action in replevin to recover the dog. The trial court, sitting without a jury, ruled in favor of plaintiff and returned Max to her. The court refused  to analogize the case to a child custody case, and inquire into what was in the “best interests” of the dog. The court instead ruled that plaintiff had “substantially compl[ied]” with the lost-property statute and was therefore entitled to possession.

Modern courts have recognized that pets generally do not fit neatly within traditional property law principles. No decision has ever applied the lost-property statutes to any kind of “beast” other than a farm animal of considerable value. Ordinary common law or statutory rules governing lost personal property do not provide a useful framework for resolving disputes over lost pets. Instead, courts must fashion and apply rules that recognize their unique status, and protect the interests of both owner and finder, as well as the public.

However strong the emotional attachments between pets and humans, courts simply cannot evaluate the “best interests” of an animal. When confronted with a case of this nature, therefore, courts should factor practical and policy considerations into any decision. Finders of stray pets should be encouraged to make every reasonable effort to find the animal's owner.Owners of lost pets should be enjoined to undertake reasonable efforts to locate their animals..

Indeed, this was essentially the approach taken by the trial court here. Having found that plaintiff diligently attempted to locate the dog's owner and responsibly sheltered and cared for the animal for over a year, the trial court was clearly within its discretion in awarding possession to plaintiff.

Possession of domestic pets may be, and often is, limited by overriding public interests. In this case, as explained above, the public interest in encouraging finders to care for and shelter lost pets necessarily qualifies the owner's right to possession. Where, as here, the finder of a lost domestic animal diligently attempts to locate its owner and provides care, shelter and companionship to the animal for over a year, a trial court does not abuse its discretion in awarding possession to the finder.

GIBSON, Justice, dissenting. Because I believe that Vermont's lost-property statute, 27 V.S.A. §§ 1101–1110, rejected by the Court herein, outlines the rights and responsibilities of both true owners and finders of stray domesticated animals, including dogs, and that, under the provisions of that statute, Boy (a/k/a Max) should be returned to defendant, I respectfully dissent The statute provides a clear, consistent, and just approach to settling disputes between finders and owners of stray domesticated animals, and  includes safeguards to protect pet owners from theft. I am authorized to say that Chief Justice Allen joins in this dissent.


Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellee.

all 85 citing documents 

SCOVT NOTE. Morgan is cited in:

• Lamare v. North Country Animal League, 170 Vt. 115 (1999) (possessory interest in a lost dog was validily transfered to adoptive owners under dog control ordinance. "Morgan involved a dispute between private parties and was governed by common law principles. This case, in contrast, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances" )

• Goodby v. Vetpharm, 2009 VT 52 (no damages for lost companionship or emotional distress resulting from wrongful death of a cat. In both Morgan and Lamare, . . ., the dogs at issue remained personal property despite their recognized human attachments, and their intangible value in monetary terms was never considered or addressed.")

• Hegarty v. Addison County Humane Society, 2004 VT 33 (Pets are not subject to the law of conversion-- but a horse is. In Morgan, we explicitly distinguished between pets — dogs, cats, and hamsters — and "agricultural animals with substantial economic value.")

• Scheele v. Dustin, 2010 VT 45 (refusing noneconomic damages for the malicious destruction of pet dog, though "We have noted in the past 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.")

• Hament v. Baker, 2014 VT 39 (Family Division has no authority to award visitation or joint custody of pets, but welfare of the animal must be considered in final disposition. "Like most pets,[a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions.")

• State v. Sheperd, 2017 VT 39 (Robinson J.) (search warrant for dogs was not overbroad in part because animals are living, sentient beings to which the law may provide protections in their own right. Animals "generally do not fit neatly within traditional property law principles," but instead "occup[y] a special place somewhere in between a person and piece of personal property.")

"Indeed, pets occupy a legal realm somewhere between chattel and children." Schelle, 2010 VT 45 ¶ 17

Landlord/ tenant. SCOVT affirms no-pet policy. Although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal .

Gill Terrace Retirement Apartments, Inc. v. Johnson, 2017 VT 88 [filed 10/6/2017] 

SKOGLUND, J. Tenant Marie Johnson appeals the trial court’s conclusion that she violated two material terms of her residential rental agreement: a “no-smoking” policy and a “no pets” policy. We affirm based on the no-pets violation. The court did not err in concluding that tenant was not entitled to a reasonable accommodation for a specific emotional support animal. Given our holding, we find it unnecessary to address whether the court erred in finding that tenant violated the no-smoking policy

We acknowledge tenant’s attachment to Dutchess and her need for an emotional support animal, but the court properly weighed the evidence regarding Dutchess’s aggressive behavior against landlord’s concerns for the safety and wellbeing of the other residents. As a result, we conclude that the court did not err in affirming landlord’s denial of tenant’s reasonable accommodation request because the evidence established that Dutchess posed a threat to others and that Dutchess would cause substantial physical damages to the property.. We affirm the court's conclusion that, although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal Dutchess.

 Affirmed.

Liability for dog bite is based on negligence.

Martin v. Christman, 2014 VT 55 (13-Jun-2014)

CRAWFORD, J. The single issue raised by this appeal is whether we should change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision.

The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that Vermont precedent has long required proof of negligence to recover against a dog owner for damages caused by his or her dog. Godeau v. Blood, 52 Vt. 251 (1880). See Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963); Worthen v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).

In limiting recovery to cases of negligence, the dog-bite cases fall within the normal parameters of our tort law. O. Holmes, Jr., The Common Law 163 (Little, Brown & Co. 1946) (1881)(“ the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.”)

These principles are generally followed in the United States. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010). The overwhelming majority of those states that have adopted strict liability for dog bites have done so only by statute.

We see no reason to single out dog ownership for treatment that is different from that we apply to other human pursuits. If a change were warranted, it should be left to the Legislature. We are not prepared to depart from long-held principles of negligence to create a new field of strict liability.

Affirmed.

SCOVT note on strict liability at common law in Vermont. 

The Court today reaffirms its early rejection of strict liability in dog bite cases, noting that “With the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.” Martin v. Christman, 2014 VT 55, ¶ 10. 

The doctrine of strict liability for abnormally dangerous conditions and activities is a comparatively recent one in the law. See Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969). In Vermont the only recognized application of the doctrine involves blasting.

Here is a brief history.

The doctrine of absolute liability was jettisoned in Vermont as early as 1833 in the case of Lapham v. Curtis, 5 Vt. 371.

In Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 343, 111 A. 346, a case involving a railroad torpedo, the Vermont Court rejected strict liability as a general doctrine.

Goupiel was recognized as good law as late as 1958, in Thompson v. Green Mtn. Power Corp., 120 Vt. 478, 482, 144 A.2d 786 (1958), a case involving dynamite and chickens. The Court said that the doctrine of absolute liability has not been accepted in this jurisdiction, citing Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348.

In Malloy v. Lane Construction Corporation, 123 Vt. 500, 194 A.2d 398 (1963) the Court overruled Goupiel v. Grand Truck Ry. Co., and adopted the doctrine of absolute liability in its application to the blasting operations. There “The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs' dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.” 194 A2d at 398-99. The Court accepted plaintiff’s’ argument that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have prevented injury to their property.

Surveying law elsewhere the Court said, “The use of dangerous explosives has been particularly subject to rules imposing strict liability….Negligence need not be demonstrated, but only the use of explosives and resulting damage.”

Malloy is the high water mark for Rylands v. Fletcher in Vermont.

In 1969 the Court expressly refused to extend the doctrine of strict or absolute liability, as recognized in Malloy, to accidents involving the transmission of electricity. Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969) .

In 1990 the Court also refused to extend the doctrine to public railroad crossings.Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).

In 2000 a case involve the escape of electicity from transmission lines came before the Court on a products liability theory. Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 567, 762 A.2d 826, 828 (2000) Because the utility did not sell the electricity that allegedly caused the fire in this case, the Court held the doctrine of strict product liability did not apply. The issue of ultra-hazardous activities was not before the Court.

In Bosley  the Court explained that strict liability has been confined to things or activities which are "extraordinary", or "exceptional", or "abnormal". (citing Prosser on Torts, 3rd Ed. Strict Liability, section 77, page 520. ) The Court noted the Restatement of Torts, section 519, 520 accepts the principle of Rylands v. Fletcher, 3 Hurl & C 744 (1865), but has limited it to an "ultra-hazardous activity", defined as one which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."

~ Zphx

Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition.

Hament v. Baker 2014 VT 39 (25-Apr-2014)

CRAWFORD, J. The only issue in this contested divorce was which spouse should receive the family dog. Belle is an eleven-year-old German wirehaired pointer who is greatly loved by husband and wife. The parties have no minor children, and they were able to reach an agreement on the division of their property and other financial issues. They came to the final hearing for a ruling on which one of them would receive the dog in the divorce decree.

On appeal, wife claims that the court erred in refusing to consider allocating the dog to both spouses in a joint arrangement. She also argues that the court failed to enforce the parties’ temporary agreement to share their time with the dog. We affirm the family court decision on two grounds. The factors identified and considered by the court in allocating the dog were appropriate. The court was also correct in its statement that the family division cannot enforce a visitation or shared custody order for animals.

We hold first that the allocation of a pet in a divorce is subject to 15 V.S.A. § 751. In contrast to a child, a pet is not subject to a custody award following a determination of its best interests. Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification.

This Court has consistently ruled that pet animals are property. Scheele v. Dustin, 2010 VT 45, ¶ 8, 188 Vt. 36, 998 A.2d 967; see also Goodby v. Vetpharm, Inc., 2009 VT 52, ¶ 7, 186 Vt. 63, 974 A.2d 1269 (holding that no tort recovery allowed for emotional damages following loss of pet). But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment. See, e.g., Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (noting that value of most pets is primarily emotional rather than financial). Morgan recognized the emotional value of a dogs well as the value our society places on the humane treatment of animals. The dog in that case remained “property,” but his disposition was governed by concerns for animal welfare. Id. at 104-05, 702 A.2d at 634.

We hold that the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse. Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses. In this case, the parties were afforded an opportunity to put on evidence regarding both factors without restriction. While the family court could consider both welfare and emotional ties in awarding the dog to one of the parties, it had discretion to decide what weight to give to these factors.

The court’s specific findings about Belle and her owners are supported by the evidence. The factors the court considered—the dog’s welfare and its emotional relationship with the parties—are the same factors that we recognize today as appropriate for the resolution of similar questions in the future. Accordingly, we affirm the court’s decision to assign ownership of the dog to husband.

Finally, we disagree with wife’s contention that the court had authority to impose an enforceable visitation order for the dog. Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Accordingly, we agree with the court below that even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division. The enforcement of such agreements falls outside of the jurisdiction of the family division over the distribution of marital property.


Affirmed.

Stare decisis: Cat precedent applies to Dogs. Court refuses noneconomic damages for the malicious destruction of pet dog.

Scheele v. Dustin (2009-213) (21-May-2010) 2010 VT 45 (Skoglund, J)

This case asks the Court to decide the proper measure of damages for the loss of a family dog. David Putter, Montpelier, and Heidi Groff for Plaintiffs-Appellants. Plaintiffs appeal from a judgment denying them recovery for emotional damages for the intentional killing of their pet dog, Shadow. Though plaintiffs recovered $155 in economic damages for the destruction of their property, the issue is whether they are entitled to damages for emotional distress or loss of companionship as a result of Shadow’s death. They claim that the real worth of a pet is not merely financial and cannot be measured solely by the replacement value. Thus, they argue, their emotional suffering—the result of defendant’s malicious and intentional acts—warrants noneconomic damages. The Superior Court barred such recovery, holding that Vermont does not recognize noneconomic damages for the malicious destruction of personal property, even when the property is a beloved pet. We affirm.

Last year, in Goodby v. Vetpharm, we addressed a similar case that claims for emotional damages and loss of companionship stemming from alleged negligent or wanton acts resuling in the death of two pet cats. We affirmed the trial court’s denial of the plaintiffs’ request for noneconomic damages, including loss of companionship and emotional distress, on the ground that such damages were unavailable for the destruction of a pet because it is type of personal property. We see no reason to deviate from the sound logic of Goodby. That Goodby, sounded in negligence whereas, here, defendant alleged acted with intent and malice when he shot plaintiffs’ dog is not a distinction that entitles plaintiffs to noneconomic damages for their property loss. Instead, punitive damages are available in instances of an intentional and malicious tort.

The court at (¶ 15) refuses to extend the common law to recognize a new cause of action for the wrongful killing of a pet dog. While this Court has and will “change the common law to meet changing needs of the people of this state,” we also recognize instances where the issue presented “is better left for legislative resolution.” As in Goodby, here "[p]laintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss." 2009 VT 52, ¶ 11

Here we see no principled basis upon which to define categories of applicable harm or recovery. Moreover, when we have chosen in the past to expand the common law, we have recognized that such changes must still fit “within the doctrine of stare decisis.” See Hay v. Med. Ctr. Hosp. of Vt., 145 Vt. 533, 544, 496 A.2d 939, 945 (1985) (quotation omitted). While we do not hew to precedent without regard to the challenges and changing needs of the people of Vermont, we are not persuaded that plaintiffs’ cause requires a major shift in the landscape of the common law, especially coming so close upon the heels of our most recent ruling. Thus, as we stated above, our decision in Goodby and its predecessors continue to guide us today.

In holding with the traditional view that the law recognizes animals as a type of property, we are not blind to the special place they hold in our lives. Indeed, pets occupy a legal realm somewhere between chattel and children. 

Our animal protection statutes today circumscribe minimum standards of care for all animals, now defined as “all living sentient creatures, not human beings,” 13 V.S.A. § 351(1). Thus, under Vermont law, a person would face no criminal charges for ignoring their garden during a hot, dry summer or overloading a bookshelf to the point of collapse. Yet like treatment of a pet or other animal could result in incarceration or thousands of dollars in fines. See 13 V.S.A. § 352(2) & (4); id. § 353 (imposing criminal penalties). Over generations, the Legislature has shaped a complex and comprehensive structure guiding our treatment of animals. This statutory regime lends credence to our position that “[t]he changes plaintiffs request are better presented to the General Assembly,”

Wrongful death of a cat: no damages for lost companionship or emotional distress.

Goodby v. Vetpharm, 2009 VT 52 (Burgess, J.)

This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.

Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.

Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.

To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.

Affirmed.