Under the “zone of danger” doctrine, which New York state applies, a person does not need to be physically injured to recover for emotional distress under common-law negligence. A person in immediate risk of serious harm—a person in the “zone of danger”—may recover for the fear they experienced while in the zone of danger, even if they were not actually hurt. A person may additionally recover for emotional distress over witnessing the serious injury of an immediate family member who was also in that zone of danger. New York has expanded the term “immediate family member” to include grandparents, in addition to spouses and children.
Adding grandparents to the notion of immediate family members, while a more inclusive definition, still limits recovery for emotional distress to circumstances involving human family. Pets, which are not human, could not therefore qualify. Which makes some sense: pets are considered property in all 50 states—even in the minority of states that provide pets more consideration in a divorce than, e.g., a lamp. (For a discussion of this issue, see Is Your Pet A Piece Of Property Or A Beloved Family Member?) Most jurisdictions will not, therefore, allow recovery for a pet owner’s emotional distress due to others’ negligent actions toward a pet, as they do not allow recovery for emotional distress over property that was negligently harmed.
A court in Kings County, New York, however, has again expanded the scope of “immediate family member” to include canine family members—despite New York law that defines pets as property. DeBlase v. Hill, 239 N.Y.S.3d 770 (N.Y. Sup. 2025). How did this come to pass?
Changing Perspectives on Pets
Part of the court’s justification was that people increasingly consider their pets to be part of their family. Because of this, New York already provides special considerations, over and above inanimate objects, for pets in divorce proceedings. (You can access some of the research here: Are Dogs Truly (and Legally) Members of the Family? | Psychology Today; All in the Family: Pets and Family Structure.) The court observed that similar changes in peoples’ conception of family had been used to justify the inclusion of grandparents as “immediate family members.” Pets, therefore, the court believed, should similarly be included. Because the court identified special circumstances that must be met to sustain a pet-related emotional damages claim, the court further believed that its expansion of what constitutes a family would not create a flood of further litigation.
Special Circumstances Must Still Be Met—One Court’s Attempt to Limit the Scope of Liability While Also Enlarging the Scope of Emotional Distress Claims
First, the pet must have been struck by an “instrument of harm,” such as a motor vehicle. Second, the owner must be leashed to the pet when the motor vehicle severely injures the pet. Both conditions merit a brief discussion.
The term “instrument of harm” is normally used in the context of third-party tort liability. An entity may be held liable for injuries where it has contracted with another party and where the contracting party fails to properly perform its duties to such an extent that its actions are likely to cause injury—e.g., a supermarket may be held liable for a pedestrian’s injuries when it contracted with a valet service and an incompetent valet then hits the pedestrian. There’s no contract between parties in this case—the driver was not an employee of another party, for example—but, nonetheless, the court believed it appropriate to label the car an instrument of harm and to apply a higher degree of scrutiny to the driver’s actions as a result. The court, in so doing, limited recovery of negligent emotional distress damages to pet injuries caused by a motor vehicle.
The family member must also be leashed to the pet at the time the pet is injured. To so require, the court believed, would further limit litigation. It is generally only canine pets who are walked on a leash; generally, then, only dog owners would have standing to sue for emotional damages and only if their dogs were leashed to them at the time of injury.
Identifying a Pet as an “Immediate Family Member” Raises the Risk of Additional Liability and Potentially Excessive Recoveries
In the New York court’s opinion, the special conditions it imposed would prevent the possibility of greatly increased litigation over emotional damages for the injury of a pet. The court’s opinion, however, may not align with what may result, practically speaking, from expanding the zone of danger’s scope.
The analogy of grandparents as family to pets as family required pets to be considered more than property under the law. Not only is this in tension with existing property laws, but analogizing a pet to a grandmother may, in fact, open up additional liability.
There does not seem to be a bright line, for example, between recovery for one type of pet but not another. And while there are certain regulatory distinctions made between “companion animals”—defined as cats, dogs, and horses—and other types of animals, “family pet” is not so defined and may encompass a vast array of animal types.
The decision creates, in effect, a legally cognizable difference between certain pets and property under New York tort laws. The pet is no longer considered merely property but something more. But how much more? People can file suit on behalf of their injured human infants, even though the infants lack the capacity to sue. Perhaps so, too, will pet owners try to sue on behalf of their injured pets.
Compensation for a pet also may become more fraught. If pets and owners are considered close enough emotionally to be immediate family members, loss of companionship suits for pets may seem more colorable. Identifying pets as immediate family members under one type of tort recovery creates fewer barriers for identifying pets as immediate family members under other types of recovery. Veterinary malpractice claims might thereby be affected, were this holding to be more broadly accepted. It might be used to permit recovery for emotional distress and loss of companionship, for example, over and above the fair market value of an injured pet.
Attorneys for animal health law entities should consider affirmatively addressing possible arguments against the “multi-species family,” given the possibility that a family unit, so defined, might enable greater recovery in claims related to the injury or death of companion animals.
Venable will continue to monitor this space and provide updates. For more information, contact one of the authors or members of our Animal Health Law team.
Additional References
- Cardena v. Swanson, 531 P.3d 917 (Wyo. 2023)
- DeBlase v. Hill, 239 N.Y.S.3d 770 (N.Y. Sup. 2025)
- Greene v. Esplanade Venture Partnership, 168 N.E.3d 827 (N.Y. Ct. App. 2021)
- In re Pet Food Products Liability Litigation, 2008 WL 4937632, at *10 (D. N.J. 2008), vacated in part and remanded on other grounds by In re Pet Food Products Liability Litigation, 629 F.3d 333 (3d Cir. 2010)