By: Grayson Harbury | Senior Articles Editor

November 17, 2023

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In the fall of 2022 the Oregon Court of Appeals affirmed the dismissal of a per se negligence claim based on a violation of a state animal welfare statute.[1] Notably, the named plaintiff for the civil claim was the horse who had been neglected, Justice.[2] The lower court dismissed the claim, holding that animals do not have standing to sue because they are not legal entities.[3] The appellate court affirmed, holding that there was no procedural method that would allow for third-party standing on behalf of an animal, and also that animals are not legal persons and therefore lack standing to sue.[4] The court interpreted Oregon’s criminal animal neglect statute as qualifying the rights of animal owners, rather than creating substantive rights in animals.[5] In contrast, the plaintiff asserted that the animal welfare statute created a right in the animal to receive a minimum standard of care, civilly remediable through a per se negligence action. The court instead viewed animal welfare statutes as a manifestation of animal owners’ duty to the state.[6] Ultimately, the court regarded the question of legal personhood for animals as a public policy choice best left to legislative determination.[7] However, the precedent cited by the court in holding against a theory of animal guardianship is not as straightforward as the opinion suggests.

To begin, the court held that legal guardianship is not available for animals because animals’ interests are not discernable.[8] However, by enacting animal welfare statutes, legislatures implicitly recognize humans’ ability to recognize animal preferences. Indeed, the Oregon Court of Appeals acknowledged that “animals are sentient beings . . . and should be cared for in ways that minimize pain, stress, fear, and suffering.”[9] Mindful of that, the court then explained that guardianship ad litem or analogous procedural devices would be inappropriate for animals because those seeking to represent animals might have ulterior motives.[10] The court relied heavily upon a case in which PETA pursued a copyright claim on behalf of a monkey to underscore the potential for abuse of animal guardianship procedures.[11] In that case, however, the Ninth Circuit held that PETA had not made a factual showing of a significant relationship with the monkey sufficient for “next friend” third-party standing.[12] Thus, even in the context of a monkey’s copyright claims, the plaintiff’s case did not fail for lack of ability to discern the animal’s interests, or even for a lack of ability to discern who would most faithfully pursue those interests: the claim failed because PETA did not allege adequate facts.[13]

In fact, the court in Naruto determined that the monkey had established Article III standing sufficient to survive a 12(b)(6) motion to dismiss.[14] In addition to the factual inadequacy, PETA could not establish third-party standing as a “next friend” because “next friend” standing is statutorily created and thus Congress would have clearly indicated an intent to create a cause of action for animals to invoke copyright protection.[15] Nevertheless, the Ninth Circuit then explained the court’s duty under Federal Rule of Civil Procedure 17 to ensure adequate representation of incompetent parties, including the appointment of guardians ad litem if necessary.[16] Thus, if Justice adequately pled a case of negligence per se, Naruto would actually stand for the proposition that the Oregon Court of Appeals was under a duty to ensure his adequate representation under analogous state procedural rules.[17] Furthermore, in the context of animal neglect or abuse, the fact-finding process to determine the person best suited to pursue the animal’s interests would have a presumptive candidate: the new owner.

Recognizing third-party standing for animals would undoubtedly be a contentious step in the development of the common law.[18] Nonetheless, the Naruto opinion, which declined to extend next-friend standing to animals on statutory interpretation grounds,[19] implies the possibility of case-specific, fact-reliant common-law third-party standing for animal plaintiffs rather than a blanket skepticism of people’s ability to pursue animals’ interests in good faith. A negligence per se claim for animal neglect presents a case in which that fact-finding would be simplest, from the standpoint of discerning both the animal’s interest, and the legal person best suited to advance that interest. A common-law expansion of animal standing would also make the most sense in the tort-law context, given the judge-driven development of the field.[20]

On a different note, the Oregon Court of Appeals’ focus on conditional animal ownership suggests the possibility of framing animals’ civil claims similarly to honorary trusts, a common-law creation that allowed pet owners to bequeath part of their estates to beneficiary pets, despite the pets’ inability to enforce the trust.[21] If the state grants animal ownership in trust, with the duty of the owner to provide a minimum level of care, third-party representation of the animal by a successor trustee (owner) could actually be a fiduciary duty.[22]

[1] Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439 (2022), review denied, 524 P.3d 964 (2023).

[2] Id.

[3] Id.

[4] Id. at 444–46.

[5] Id. at 454.

[6] Id. at 453–54.

[7] Id. at 456.

[8] Id. at 446.

[9] Id. at 454 (citing Or. Rev. Stat. Ann. § 167.305 (West)).

[10] Id. at 447–48.

[11] Id. at 446–48 (citing Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)).

[12] Id. at 446 (quoting Naruto, 888 F.3d at 421).

[13] Id. (quoting Naruto, 888 F.3d at 421).

[14] Naruto, 888 F.3d at 425.

[15] Id. at 425–26 (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)); see Fed. R. Civ. P. 17.

[16] Naruto, 888 F.3d at 422–23.

[17] See Or. R. Civ. P. 27(a).

[18] See Vercher, 321 Or. App. at 457–58.

[19] Naruto, 888 F.3d at 425–26 (citing Cetacean Cmty., 386 F.3d at 1179).

[20] See generally Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What’s the Difference?, 77 Or. L. Rev. 497 (1998) (discussing Oregon tort-law development as influenced by statutes and how “a court should consider providing a statutory duty action, such as negligence per se, to further the purposes of the statute” when the statute is “focused” on specific types of harms and victims).

[21] See generally Emily Gardner, An Ode to Roxy Russell: A Look at Hawaii’s New Pet Trust Law, Haw. B.J., Apr. 2007, at 30 (discussing the evolution of honorary trusts in the context of Hawaiian legislation covering the subject).

[22] Eric A. Manterfield, Shelter from the Gathering Storm: Protection for Trustees (and Estate Planners!) Facing Fiduciary Challenges (2015) (“Many states provide that a successor trustee becomes liable for a breach of trust by a predecessor trustee if the successor trustee fails to make a reasonable effort to compel a redress of a breach of trust committed by the predecessor trustee.”).