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Dec 3

Emotional Support Animal Rights

Aviation Liability Law Animals

Posted on December 3, 2014 — by Michael Ely

“When pigs fly” is an old colloquialism meant to state impossibility.  However, this article reports on a literal manifestation of this saying.  The title says it all, “Emotional support pig removed from airplane after defecating.”  Emotional support animals were a concept that I had not previously been aware.  Apparently, there are a couple of federal statutes that require accommodations for emotional support animals in limited instances.

This article in the New Yorker does an excellent job of explaining emotional support animals and the laws that govern them.  Further, the article is highly entertaining.  The author explains that the laws concerning emotional support animals are not widely known or understood.  The article initially explains the difference between service animals and emotional support animals.  Service dogs are trained and able to perform specific tasks (such as a guide dog).  Emotional support animals have no training and have no specific skills.  Service animals are allowed anywhere.  Emotional support animals are only allowed on planes and in housing that normally prohibits pets.  The Fair Housing Act allows emotional support animals in housing and the Air Carrier Access Act allows emotional support animals on airplanes.  More importantly, emotional support animals have no statutory right to be in any other public or private areas.

An emotional support animal is an untrained animal that gives comfort to a person with a disability (emotional or psychological).  In order to qualify under the Fair Housing Act or the Air Carrier Access Act, the animal must be accompanied by documentation (not more than a year old) from a licensed mental health professional that states that the owner has a mental health issue and that the animal is necessary to maintain the owner’s good mental health.  The pig that was kicked off of the flight was allegedly one of these emotional support animals. 

In the New Yorker article, the author exploits the confusion around emotional support animals.  She manages to bring a variety of different animals including a turtle, snake, pig and alpaca (a small llama) into various public areas including an art gallery, taxi cab, train, airplane, and restaurant, all under the guise of the emotional support animal right.  She was not able to do this with legal authority, but rather through confusion over law regarding emotional support animals.  I believe that the author of the article meant for it to be humorous, but the article brings up some interesting legal questions.

The DOT regulation that allows emotional support animals gives wide latitude to airline personnel for the rule’s enforcement.  The rule states that emotional service animals should be allowed on an aircraft (free of cost and they should not be required to be caged), unless the animal represents a direct threat to the health or safety of others or a significant threat of disruption to the service in the cabin.  It is important to repeat that the rule is not iron clad and it does allow airline personnel wide latitude to refuse emotional support animals.  This latitude opens the door for possible legal ramifications.  For example, what if airline personnel allow a pitbull on an aircraft as an emotional support animal?  Or what if airline personnel allow an emotional support animal on a flight in which there is also a person who has severe pet allergies?  Where does one right begin and one right end?  Is there legal liability for the airline if an emotional support animal attacks and injures another passenger?  Is there legal liability for an airline that allows an emotional support animal that causes another passenger to have a severe allergic reaction?

It is very likely that when the DOT formulated a rule to allow emotional support animals on flights, it did not completely comprehend the legal issues that it would initiate.  However, it is important to have fairness when balancing the rights of two competing parties.    

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