Delaware Business Lawyer Blog

As a Delaware lawyer and dog lover, I recently wrote about the use of a Delaware pet trust to ensure that your pets are cared for immediately after your death and into the future. Along the same lines, it would make sense to carry a note in your wallet alerting emergency personnel to the fact that you have pets at home, their names, the name of your pet trustee, and any other pertinent information.

Speaking of emergency personnel, if you don’t already have it, it’s advisable to affix a pet safety alert decal or sticker on your door or window so that if firemen have to come to your house, they’ll know that there are animals inside that need to be rescued. These stickers are available at pet stores and on-line. They're inexpensive, around $5, and you'll never regret having it.

I previously discussed the fact that the animals we love and think of as members of our family are considered to be property in the eyes of the Delaware courts. I personally disagree with this, and I’m hopeful that this view will change. However, the good news is that Delaware finally allows us to create pet trusts.

So what is a pet trust and why would you want to set one up? Well, for one thing, it’s important to make sure your pets are cared for immediately upon your death. The trust document names the person who becomes the owner of your pet and the “guardian: of the funds which you set aside for the welfare of your pet. This person is called the “trustee.” The pet trust also allows you to name the “caregiver,” who is the person who will actually provide the day to day care of your pet.

Another reason for the pet trust is that it’s a legally binding document that can be enforced in court if the need arises. You also get the opportunity with the pet trust to write down such things as the activities your pet enjoys, the food your pet eats, etc.

Also keep in mind that because your pets are property under Delaware law, you can’t leave money directly to your pets. If you tried, it would be invalid. The pet trust permits you to give your pet and the money to the trustee. The trustee gives the pet to the caregiver, and distributes funds to the caregiver from time to time as needed.

Finally, with a pet trust, the funds don’t get tied up in probate, which means the money is readily available for the care of your pet immediately after your death.

No matter how much you might love your dog, under the laws of Delaware, a dog is considered personal property. As a Delaware lawyer who loves dogs, I don't like it but I guess we have to live with a recent court opinion that explains the significance of this.

A bloodhound went into a neighbor’s yard and attacked the neighbor’s Yorkshire terrier. The poor Yorkie was seriously injured, and the neighbor spent more than $14,000 in vet bills.The neighbor then sued the owner of the bloodhound for the vet bills she already incurred plus any future bills, and her emotional distress.

The court ruled that because a dog is personal property, its owner cannot sue for medical bills as an injured person could. Instead, the measure of damages would be the same as used for a damaged sofa, car or other inanimate object. If the bloodhound had chewed up an oriental rug, the most the neighbor could recover is the market value of the rug. Therefore, the most the neighbor could recover for her injured “Yorkie” is the market value of the dog.

The judge’s written opinion contains the following instructions:

“While the Court is mindful that dogs are often beloved family members, and that many owners will spend inordinate sums of money to keep their pets healthy, the law in Delaware has not advanced to the point where it has carved out a personal injury action for injured dogs, wherein expert veterinary witnesses would testify, medical expenses would be placed in evidence, and pain and suffering and the degree of permanency would be measured by a jury. Obviously, the animal cannot be deposed, there is no provision for independent veterinary examinations, a pet dog is not likely to have lost earning capacity, and there is no loss of consortium claim (as dogs do not marry), nor are there any other similarities between a personal injury case involving an injured human plaintiff and an owner's loss of her dog, as in this case. If a change in the law is to occur, it is up to the Legislature, not the Courts, to decide that a dog named Fido, a cat named Boots, a hamster named Harry, or a fish called Wanda can have some new species of personal injury action brought on their behalf.”

In dismissing the claim for emotional distress, the Court said:
“while the Court is mindful that loss of, or injury to, a pet may be a devastating emotional experience, under our law the dog is property, not a person, no matter how great an effort has been made on the part of the owner to humanize it.”

As a Delaware attorney who loves dogs, I’d like to tell you about a recent case where I helped a family who bought a puppy from a local store, took it home and fell in love with it, and spent the next year going to the vet’s office before the puppy was put to sleep.

They contacted me after they spoke to the pet store owner and were treated rudely. I informed the family that Delaware has laws that protect them, and that the store owner violated these laws. So what do these laws say?

For one thing, a seller has to post in a conspicuous place a notice informing customers that “purchasers of dogs from this seller are entitled to specific rights under the law.” Customers must be provided a written copy of such rights at the time of sale or upon request even if there is no sale.

In certain situations, Delaware’s dog warranty laws apply only during the first 20 days after the sale. But in other situations, the laws apply up to 2 years from the date of the sale.

Situation #1 - within 20 days after the purchase of the dog, a licensed Vet states in writing that the dog suffers from or has died from an illness, disease or other defect adversely affecting the dog’s health that existed in the dog on or before delivery to the purchaser.

Situation #2 - within 2 years after purchase of the dog, a licensed Vet states in writing that the dog possesses or has died from a congenital or hereditary condition adversely affecting the dog’s health or that requires hospitalization or nonelective surgery.

If either of these 2 situations apply, the purchaser has a few options:

First option: return the dog to the seller for a full refund of the purchase price plus reimbursement for reasonable vet bills for diagnosing and treating the dog

Second option: Exchange the dog for another one of purchaser’s choice (of comparable value) plus receive reimbursement for reasonable vet bills for diagnosing and treating the dog

Third option: Keep the dog and receive reimbursement for reasonable vet bills for diagnosing and treating the dog

There are of course more details and procedures, but these are the basics.