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Measuring Damages for Injury or Death of Livestock
Measuring Damages for Injury or Death of Livestock
By Amie K. Wilcox
Amie K. Wilcox is an attorney at Friday, Eldredge & Clark LLP in Little Rock. She is pictured with her dog Hamilton. Humans’ relationship with animals—particularly in light of millennials’ bonds with pets—has evolved in recent decades. This article focuses on historical trends for evaluating damages for injury or death of animals—which, until recently, has been limited to livestock.
Traditionally, the measure of damages for animals has been based on that animal’s objective economic value, measured by comparing the market value of the animal prior to the loss or destruction to its current value (if any). This general rule in Arkansas dates back to 1888, where a Supreme Court of Arkansas judgment included an assessment of interest between the time of the injury and the time of trial, against a railroad company for the death of the Plantiff’s leased mule.1 “[I]n the cold, unsympathetic eye of the law, sentimental value is not recognized as a basis for damages.”2
For nonfatal injuries, Arkansas courts have allowed two measures of damages: (1) the difference between the value of the animal preceding and following illness, plus cost of care or (2) the difference between the value of the animal preceding illness and following recovery, plus a sum for the loss of time, care, attention, and other necessary expenses or losses caused by the sickness, including value of usage lost for working animals. While these two general rules should reach the same result, the latter was intended for cases where it may be difficult for the jury to assess the actual value of the sick livestock. These rules originated from a case wherein cattle became sick after eating cotton seed hulls and meal made from rotten cotton seed.3
Other states have allowed damages based on inferior breeding to valuable stock. A Nebraska court awarded damages for the impregnation of a purebred Hereford cow by a trespassing purebred Angus bull on the value difference of the cow as a purebred registered Hereford for breeding purposes before and after breeding. In this case, the Court did not necessarily consider the purebred Angus bull to be “inferior stock,” but based its damages award on evidence that the calf produced would have no value in the purebred market.4 Interestingly, despite the defendant’s claim that plaintiff was contributorily negligent or assumed the risk based on known malfunctions of his “hot wire” fence, the Court rejected these claims and found that the plaintiff had the right to use his pasture without erecting a fence strong enough to keep out trespassing bulls. In a case that did involve valuable 13-month-old heifers bred by a “scrub” bull, a Kansas court held that the jury could take into consideration the loss in production of thoroughbred calves sustained by the premature breeding considering evidence that the heifers should not have been bred until two years old.5 The Kansas court framed this loss of production as a separate and distinct injury apart from the depreciation of value.
Damages will not be awarded where the harm claimed is too speculative. For example, damages are generally not available for unborn livestock, as they are regarded as having no value apart from their dams. However, this value may be considered by measuring the value of the dam immediately before and after losing the unborn stock.6 In a case involving an ostrich breeding operation, Plaintiffs brought an action for damages against Airship International Ltd, which had piloted an air advertisement for Anheuser-Busch, Inc., in a low flyover above plaintiff’s ostrich farm.7 Plaintiffs alleged that the airship’s “loud noise and frightening appearance startled their ostriches, causing them to run wildly about in their enclosures and bump repeatedly into the fences of their pens, resulting in injury.” Plaintiffs claimed that after the fly-over, the ostriches ceased exhibiting breeding behavior for the remainder of the season. The damages claim was based on profits lost from a decrease in the average number of healthy baby ostriches. The Court declined to “bury its head in the sand” and ignore its precedent to allow the recovery of the value of estimated offspring that would have been produced “but for the airship invading their ostriches’ conjugal nest” because the Plaintiff’s only proof of injury to the birds “is that they lost that loving feeling during the remainder of the 1992 breeding season.”
Doctrines related to damages where animals are involved are quickly evolving. In addition to general livestock and pets, these traditional formulas must be updated with modern considerations when considering cases where there is injury or death of high-value animals like exhibition livestock, valuable breeding stock, horses trained specifically for activities like roping or barrel racing, and skilled dogs trained for hunting.
Endnotes:
1. St. Louis, I. M. & S. RY. Co. v. Biggs, 50 Ark. 169, 6. S.W. 724 (1888). 2. City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. App. 1932); see Missouri, K. & T. R. Co. v. Crews, 120 S.W. 1110 (Tex. App. 1909) (“Courts have uniformly held that he cannot recover a fanciful price therefor, such as he might place upon it on account of a sentiment attaching to, or for any other special reason.”). 3. Hartgrove & Clegg v. Southern Cotton Oil Co., 72 Ark. 31, 77 S.W. 908 (1903). 4. Fuchser v. Jacobson, 290 N.W.2d 449 (Neb. 1980). 5. Matthews v. Langhofer, 110 Kan. 36 (1921). 6. See Texas Pipe Line Co. v. Sheffield, 99 S.W.2d 684 (Tex. App. 1936) (considering the value lost after cattle drank water contaminated by a broken oil pipeline, causing them to abort their calves); Moorman Mfg. Co. v. Barker, 40 N.E.2d 348 (Ind. App. 1942) (reversing a lower court’s instruction to the jury that damages may be based on the value of the litter of pigs lost due to inadequate feed sold by defendant); S. A. Gerrard Co. v. Fricker, 27 P.2d 678 (Ariz. 1933) (denying a claim for damage by reason of loss of increase in number of bees in an apiary on speculative and uncertain grounds). 7. Winingham v. Anheuser-Busch, Inc., 859 F. Supp. 1019 (N.D. Tex. 1994). ■
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