Justice v. Vercher
321 Or. App. 439
Or. Ct. App.2022Background
- In 2017 defendant Vercher surrendered an emaciated horse (renamed “Justice”) to Sound Equine Options; Justice required extensive veterinary care and ongoing specialized care.
- Vercher pleaded guilty to first-degree animal neglect and agreed to pay restitution to SEO for Justice’s care through July 6, 2017.
- Mosiman (SEO’s executive director) created the Justice Equine Trust and continued to care for Justice.
- In 2018 Mosiman filed a tort complaint naming Justice (the horse) as plaintiff alleging negligence per se under ORS 167.330 and seeking past/future care costs, pain and suffering, and attorney fees.
- Defendant moved to dismiss arguing an animal lacks legal capacity to sue and the complaint failed to state a claim; the trial court dismissed with prejudice, finding a nonhuman animal lacks necessary legal status to sue.
- On appeal the court considered (1) whether an animal can be a legal person with capacity to sue under Oregon common law and (2) whether Mosiman could proceed as Justice’s guardian or guardian ad litem.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an animal has legal capacity to sue | Justice is a juridical person entitled to vindicate statutory protections and sue in tort | Animals are not persons or legal entities and therefore cannot sue | Only natural persons and human-created legal entities may sue; a horse lacks capacity |
| Whether Mosiman may sue as guardian for Justice | Mosiman is Justice’s de facto guardian under ORCP 27 and could be appointed guardian ad litem | No statutory or procedural mechanism exists to appoint a guardian for an animal; Mosiman lacks capacity to represent Justice | No recognized procedure to appoint a guardian for an animal; court doubted de facto guardianship and declined to treat Mosiman as guardian here |
| Whether Oregon animal-welfare statutes confer animal personhood or procedural rights | Statutory duties (minimum care) create legally protected rights in animals and thereby personhood | Statutes impose duties on persons and limit owners’ property rights; they do not convert animals into legal persons | Statutes qualify owners’ property rights and protect animals, but do not confer substantive or procedural legal personhood on animals |
| Whether courts should modify common law to recognize animals as persons | Court can evolve common law to recognize new class of persons and should do so to vindicate animals’ rights | Judicial recognition of animal personhood would have profound implications better addressed by legislature | Court declines to create animal personhood under common law; such change is for the legislature (court leaves possibility open for statutory action) |
Key Cases Cited
- Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) (observing an animal cannot function as a plaintiff like a juridically competent human)
- Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (declining to extend "next friend" standing to animals; warning of third‑party standing abuse)
- State v. Fessenden, 355 Or. 759 (Or. 2014) (Fessenden II) (affirming narrow statutory/exigent justifications for warrantless state action to protect animals)
- State v. Nix, 355 Or. 777 (Or. 2014) (concluding animals remain property and statutory protections do not convert animals into persons)
- State v. Newcomb, 359 Or. 756 (Or. 2016) (holding an owner has no cognizable Article I, § 9 privacy interest in a lawfully seized animal)
- Bobell v. Wagenaar, 106 Or. 232 (Or. 1922) (procedural rule that a presumed incapacitated party’s appearance without a duly appointed guardian does not deprive court of jurisdiction)