Being a lawyer means often correcting the legal misconceptions of others.  As an animal lawyer, one of the most common misconceptions that I encounter is the so-called "6-day Rule."  I am often informed that, according to Arizona law, any person who possesses an animal for more than six days becomes the owner of that animal.  This is NOT true.  Determination of the ownership of an animal, just like ownership of any property, depends on the evidence that a person can provide demonstrating a claim to ownership.  While duration of possession can be an important piece of evidence, it is not conclusive.

The "6-day Rule" comes from Arizona Revised Statutes section 11-1001(10).  This section provides the definitions that are applicable to the article of Title 11 dealing with animal control functions.  This specific subsection defines an owner, for the purposes of animal control issues and the statute regarding assault with a vicious animal as "any person keeping an animal other than livestock for more than six consecutive days."  The purpose of this definition is not to cause any change in ownership of an animal that someone holds for more than six days.  If that were so, then any kennel that watched a person's dog on a week-long trip would then own the dog.  Rather, the point of this definition is to impose liability on anyone who has an animal for more than six days, as it is reasonable to conclude that the person has some degree of control over the animal.

This is clear by looking at the first sentence of section 11-1001, which indicates that it applies only to that article (and the assault statute).  The other statutes in that article deal with issues like dog licensing, rabies vaccinations, dogs at large, and bites.  None of these statutes deal with deciding ownership of an animal.  Thus, the "6-day Rule" is not much of a rule at all -- unless the dog you've been watching for a week happens to bite someone.

Whenever I have a case that involves an injury to or the death of a companion animal, I inevitably encounter some variation of the following statement: "The measure of damages for a companion animal is the animal's fair market value."  It has become a mantra among the legal community, at least for those who have bothered to consider the issue.  Insurance adjusters and their retained attorneys assert this like it is the foundation of reality.  I even hear it from attorneys and judges who profess to be big advocates of better treatment for animals, and who have and care for companion animals at home.  The truth of the matter, however, is that this statement simply does not accurately reflect the law.  And the sad impact of this widely mis-accepted rule is that it denies any meaningful recovery to those who have lost a furry, feathered, or scaly member of their family, as companion animals (especially those rescued from a shelter) generally have no market value.

The case that started this line of thinking is Roman v. Carroll, 621 P.2d 307 (Ariz.Ct.App. 1980).  Though the whole opinion is only two paragraphs long, it was treated as though it were a lengthy and thoughtful analysis of companion animal damages.  It was not.  Simply put, Roman v. Carroll stated that a companion animal's owner is not allowed to recover emotional distress damages for witnessing the negligent death of her companion animal.  It did not establish a "fair market value only" rule.

Next in the saga came Jeter v. Mayo Clinic Arizona, 121 P.3d 1256 (Ariz.Ct.App. 2005).  Though this case had nothing to do with non-human animals (it dealt with the loss of cryogenically preserved embryos), it did address the issue of emotional distress damages for the loss of property, and addressing Roman in a footnote, essentially limited Roman to its facts.

For a little while, it seemed that Jeter would be the undoing of the Roman rule.  In 2009, though, the Court of Appeals decided Kaufman v. Langhofer, 222 P.3d 272 (Ariz.Ct.App. 2009).  In this case, the court determined that a person cannot claim emotional distress damages for the death of a companion animal, whether the person witnessed the death or not.  I represented several amicus curiae at the Court of Appeals on this case, and as I have so often seen, the judges were sympathetic to my position -- and then ruled unanimously against it.

Kaufman is often used by my opposing counsel.  Sometimes, they point out that I actually argued the case, and therefore I should know better than to seek anything more than "fair market value."  A careful reading of Kaufman, though, reveals that although the court recognized that "fair market value" is often the measure of such damages, the court also did not establish that it is always the rule.  (I think it important to note that the only case cited by the court in Kaufman in support of this proposition involved bees, and not a companion animal.)

Thus, we are left with common law cases not involving animals to determine how much they should be worth.  The good news is that Arizona has recognized the "actual value to owner" test for property having little or no fair market value since 1925.  See Jones v. Stanley, 233 P. 598 (1925).  This rule applies to the valuation of companion animals at least as much as the rule in Kaufman -- in fact, the court in Kaufman specifically declined to address the "actual value to owner" rule (see paragraphs 20-21), while noting that Jones v. Stanley is still good law.

Thus, contrary to the general attitude of most lawyers and judges in Arizona, the law in this state DOES allow a companion animal owner to recover more than "fair market value" for his or her lost friend.  Do not be persuaded otherwise.