Suit asks court to recognize pets as members of family

February 18, 2007|By Sharon Adarlo | Sharon Adarlo,Star Ledger of Newark, N.J.

Maxie's death struck the Colbaths hard. To them, the 8-year-old Labrador and golden retriever mix was a member of the family. She even had her own Christmas stocking.

It was more than a year ago when a Piscataway Township, N.J., officer shot and killed the dog while responding to a tripped burglar alarm at the home of Brian Colbath's mother. Now the family wants compensation for the trauma of watching their dog die. And they have filed what could be a precedent-setting lawsuit.

The Colbaths want Maxie acknowledged as a member of their family, making them eligible to recover damages from the police officer and the township, according to their lawyer, Gina Calogero.

Calogero is basing the claim on a 1980 ruling that granted a woman money after she witnessed her son die in an elevator mishap. Additional cases have expanded family-member status to include boyfriends and girlfriends.

"Under these circumstances, the time is ripe for New Jersey courts to consider a companion animal to be a close family member under the context of this type of claim," said Calogero, who specializes in animal law. "It's just as traumatic to lose a pet as a close family member. The bond can be just as close.

"This is not a frivolous claim," she said. "Does a dog constitute a family member? The question remains."

Piscataway Township's attorney, James Clarkin, confirmed that the municipality has received a copy of the lawsuit, which was filed in December.

"We will vigorously defend it," he said, declining further comment.

The Colbaths' case is part of a growing trend across the country testing how the law relates to pets, said Joyce Tischler, the founding director of the Animal Legal Defense Fund in Cotati, Calif., a nonprofit organization at the forefront of animal law for nearly 30 years.

If the Colbaths win the right to consider Maxie a family member, it could have far-reaching consequences in New Jersey and other states, where the case could be used as an example, Tischler said.

"It's cutting-edge," she said. "It's pushing the envelope."

As a member of the California state bar, Tischler has seen her share of lawsuits involving police shootings of family pets. But she has not seen a case that expands the definition of a family to include a pet, except for a 1979 lawsuit in New York, where a judge, in an offhand remark, referred to a pet as a "four-legged member of the family."

The American Animal Hospital Association, in a survey of 1,500 people more than 20 years ago, found that 99 percent of respondents considered their pets family members. In a 1995 survey, 70 percent of respondents thought of their pets as children, Tischler said.

"I have seen a sea change, a palpable difference in how humans view their pets," she said. "In a nutshell, the law has lagged behind how our society has evolved in our view of dogs and cats, and this sort of lawsuit is pushing the legal system to catch up."

Calogero also is testing the definition of family member in another suit filed in Passaic County. In that case, a woman is seeking compensation for emotional distress after witnessing the death of her cat as it was put under anesthesia at a Clifton veterinarian office.

In the Maxie case, Brian Colbath was cleaning his mother's Piscataway house in December 2005 when the burglar alarm was accidentally tripped.

According to the lawsuit, Piscataway officer Fred Bell responded and was confronted by a charging Maxie. Bell backed away from the dog, but then shot Maxie because he thought the barking dog was about to attack him.

Brian Colbath held Maxie as she died and asked the officer to shoot the dog again to end her suffering, the suit states.

The Colbaths now have another dog, a rambunctious 1-year-old named Samantha, who looks just like Maxie. Still, their home isn't the same, they said.

"We still think about Maxie every day," said Jill Colbath, adding that her husband remains traumatized by the shooting. "Brian is still having difficulty. Anything stressful triggers the pain. Maxie left a big void."

For the first Christmas after her death, the Colbaths put Maxie's stocking near her ashes in the living room.

"She is still with us in spirit," Jill Colbath said. "She was having Christmas with us again."

Sharon Adarlo is a staff writer for The Star-Ledger of Newark, N.J.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.