Companion Animals: Valuation
Alaska
Mitchell v. Heinrichs
27 P.3d 309
Supreme Court of Alaska, 2001
FACTS: Heinrichs shot and killed Mitchell’s dog as it was running near her livestock. Mitchell filed a complaint against Heinrichs seeking compensatory damages for the loss of her dog, as well as damages for her emotional distress and punitive damages. Heinrichs offered Mitchell $250 so that she could buy a new dog. Mitchell did not accept the offer. Heinrichs moved for summary judgment, seeking to dismiss Mitchells claims of conversion, intentional infliction of emotional distress, and punitive damages. The superior court judge granted the motions on the intentional infliction of emotional distress and punitive damages claims. He denied summary judgment on the conversion claim, but limited compensatory damages on that claim to the fair market value of the dog. Heinrichs filed a second motion for summary judgment, requesting dismissal of Mitchell’s conversion claim based on the failure to prove any damages based on Mitchell’s statement that “the value of her dog, just before it was shot, was zero, because other people are not interested in buying someone else’s dog.” The superior court granted the motion and Mitchell appealed, challenging each determination of the superior court judge.
ISSUES: Whether the court erred in dismissing Mitchell’s claim for intentional infliction of emotional distress and punitive damages; whether the court erred in concluding that damages for the loss of a pet may not include sentimental value or companionship value.
HOLDINGS:
1) Alaska recognizes a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal. The challenged conduct must have been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
2) Alaska allows recovery for punitive damages for the killing of a pet. The plaintiff must produce evidence that the defendant’s conduct was outrageous, such as evidence that he acts were performed with malice, bad motive, or reckless indifference to the rights or interests of another.
3) Because Mitchell presented no material facts to dispute that Heinrichs acted in a manner justified under the community standards embodied in the municipal ordinance, the superior court did not err in finding that Heinrich’s conduct did not support a prima facie case of either intentional infliction of emotional distress or punitive damages.
4) The Court agrees with those courts that recognize that the actual value of the pet to the owner, rather than the fair market value, is sometimes the proper measure of the pet’s value. In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog or account for zero market value.
5) While a court may take into account money spent on immunizations, neutering, training, the breeding potential of an animal, etc. in determining actual value and assessing damages, a court may not consider sentimental value as a component of actual value.
6) The trial court did not err in prohibiting Mitchell’s claims for damages of emotional and sentimental value.
7) Mitchell’s concession that her adult dog has no resale value does not prohibit her from recovering for her loss.
Florida
Kennedy v. Byas
867 So.2d 1195
District Court of Appeal of Florida, 2004
FACTS: Kennedy filed a 2 count complaint against his veterinarian, Byas, seeking damages for veterinary malpractice in the treatment of his basset hound. Count 1 alleged negligence and emotional distress; count 2 alleged fraud. The defense motion for partial summary judgment was granted with respect to the emotional distress damages, finding that, even if all allegations were proven, Kennedy could not recover for emotional distress, mental pain and suffering, or mental anguish. The court denied the motion with respect to the fraud claim.
ISSUES: Whether emotional damages are recoverable in a veterinary malpractice case; whether the court should abandon the impact rule and allow the recovery for emotional distress in cases involving veterinary malpractice.
HOLDINGS:
1) The Court declines to extend the impact rule or create an exception to that rule to malpractice cases involving animals.
2) The Court finds itself in agreement with the New York courts which recognize that while pet owners may consider pets as part of the family, allowing recovery for these types of cases would place an unnecessary burden on the ever burgeoning caseload of courts in resolving serious tort claims for individuals.
Illinois
Anzalone v. Kragness
356 Ill.App.3d 365
FACTS: Anzalone’s cat was attacked and killed by a rottweiler while boarded at the Kragness Animal Hospital. Anzalone brought an action against the veterinarian and the animal hospital for breach of bailment, negligence, breach of fiduciary duty, and intentional infliction of emotional distress. The circuit held that Anzalone failed to state a cause of action for intentional infliction of emotional distress and dismissed the count. Defendants also argued that Anzalone’s prayer for relief for compensatory damages in excess of $100,000 was not based on the market value of the cat or other permissible factors. The circuit court agreed and struck down Anzalone’s complaint for its failure to adequately plead damages.
ISSUES: Whether the circuit court erred in dismissing Anzalone’s complaint for failure to adequately allege damages.
HOLDINGS:
1) Defendant Kragness’s challenge to Anzalone’s valuation of damages is not fatal to the cause of action
because Anzalone adequately alleged the existence of damages. It would be inappropriate to dismiss the complaint merely because Anzalone’s prayer for relief was deemed extravagant.
2) No IL statute provides for a wrongful death-type cause of action for the negligent killing of a pet, and in the eyes of the common law, a pet is an item of personal property. This view still prevails in almost all jurisdictions, although deemed outdated by animal law scholars.
3) It is well established that it is not necessary for the maintenance of an action for killing a pet, that it should be shown to be of any pecuniary value. It is for the jury to be the judge of the value.
4) While at trial the plaintiff bears the burden of providing evidence which affords some reasonable basis for ascertaining the “value to the owner” so as to enable the trier of fact to exercise his or her judgment, there is no such requirement under IL law with respect to pleading damages.
Illinois
Jankowski v. Preiser Animal Hospital
157 Ill.App.3d 818
Appellate Court of Illinois, 1987
FACTS: The Jankowskis took their dog to the Preiser Animal Hospital for diagnostic treatment. During the course of the examination, the veterinarians administered anesthesia to the dog and it died. The Jankowskis filed this claim stating that the defendants were negligent in failing to properly administer the anesthesia and in failing to properly monitor the condition of the dog. They allege that they have been deprived of the companionship, loyalty, security and friendship of the dog. The trial court stated that it would allow the Jankowskis to amend the complaint to state a cause of action for property damage. They declined to so on the basis that the dog had no value as property. The court then dismissed the complaint with prejudice and this appeal followed.
ISSUES: Whether the court should extend the independent cause of action for loss of companionship to permit recovery by a dog owner for the loss of companionship of a dog.
HOLDINGS:
1) An independent cause of action for recovery by a dog owner for the loss of companionship of a dog will not be allowed as it is inconsistent with Illinois law.
2) In the eyes of the law, a dog is an item of personal property.
3) There are a number of items of personal property that have no market value. Included in this group are such items as heirlooms, photographs, trophies and pets.
4) Where property is not the ordinary subject of commerce or is otherwise unique, damages are not restricted to nominal damages; rather, damages must be ascertained in some rational way from such elements as are attainable.
5) The law in IL is that where the object destroyed has no market value, the measure of damages to be applied is the actual value of the object to the owner. The concept of actual value to the owner may include some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages.
6) To determine “actual value to the plaintiff” a plaintiff is entitled to demonstrate its value to him by such proof as the circumstances admit.
Illinois
Demeo v. Manville
68 Ill.App.3d 843
Appellate Court of Illinois, 1979
FACTS: After Manville pulled his car into Demeo’s driveway, he went inside and notified Demeo that one of her 2 dogs tied outside was injured and bleeding. Manville alleged that the dogs were fighting. The dog was taken to the vet and the veterinarian concluded that the dog should be put to sleep. Demeo filed in small claims court to recover the value of the dog, alleging that Manville ran over the dog. The veterinarian opined that the cause of death was from a car accident or clubbing. A witness testified he saw Manville run over the dog. Demeo testified that the dog cost $200, was one year old at death, appered in 4 shows and won first prize in each, and that the sire was an international grand champion. The trial court held for Demeo.
ISSUES: Whether Plaintiff Demeo was qualified to testify as to the dog’s value.
HOLDINGS:
1) In a suit to recover for the killing of a dog, the trier of fact should be allowed to consider the dog’s value based on evidence of its qualities as well as commercial value and loss of services.
2) It was not error for the court to allow Demeo to present evidence which showed familiarity with the dog’s value and commercial value.
Indiana
Lachenman v. Stice
838 N.E.2d 451
Court of Appeals of Indiana, 2006
FACTS: Lachenman was on her deck with her Jack Russell Terrier when she was distracted by a telephone call from work. After she went inside to answer it, she heard a “horrible” noise from her dog. When she went back to her deck she saw the Stices’ German Shepard and English bulldog repeatedly attacking her dog in the lake attached to her property. Eventually the Stices’ dogs let Lachenman’s dog go. Lachenman took her dog to the vet to treat its wounds, but the dog died. Lachenman sued the Stices on claims of intentional, negligent infliction of emotional distress, punitive damages, future breeding income, statutory violations, and for a protective order. The trial court granted partial summary judgment and Lachenman appealed.
ISSUES: Whether Lachenman can recover for intentional infliction of emotional distress; whether Lachenman can recover for negligent infliction of emotional distress; whether the Stices were negligent per se under Indiana code; whether the Stices were negligent per se under the owner’s association rules; whether Lachenman has a claim for loss of potential breeding income; whether the trial court erred in excluding evidence regarding two incidents involving the Stices’ dogs which occurred after the attack on Lachenman’s dog; whether the court should consider evidence regarding the sentimental value of Lachenman’s dog.
HOLDINGS:
1) Lachenman cannot recover for intentional infliction of emotional distress because the Stices’ actions did not constitute “outrageous” behavior as contemplated by the narrow definition adopted from the Restatement.
2) The evidence reveals no direct physical impact to Lachenman that would justify recovery for negligent infliction of emotional distress under the modified impact rule.
3) The court rejects the notion that witnessing the death or severe injury of a pet is sufficient direct involvement to allow a claim of negligent infliction of emotional distress.
4) Although many pets are beloved by their owners, they remain property.
5) The state statute under which Lachenman states a claim for negligence per se is intended to protect against a dog bite or attack on another person, not on another dog. Therefore, violation of this statute does not support Lachenman’s claim for damages.
6) Violation of property owner’s association rules and regulations will not support a determination of negligence per se, but a violation could be evidence of negligence.
7) The trial court did not err in granting summary judgment in favor of the Stices with respect to Lachenman’s claim for future breeding income because evidence with regard to this claim was speculative in nature.
8) The Indiana case law does not support the notion that subsequent acts by a dog are relevant to the question of a dog’s vicious propensity, and the dog owner’s knowledge thereof, at the time of the attack in question. The trial court did not err in excluding such evidence in this case.
9) A dog is personal property and the measure of damages for destruction of personal property is the fair market value thereof at the time of the destruction.
10) The trial court did not err in excluding evidence regarding sentimental value of Lachenman’s dog.
Kansas
Burgess v. Shampooch Pet Industries
131 P.3d 1248
Court of Appeals of Kansas, 2006
FACTS: Burgess took his dog, Murphy, to Shampooch for pet grooming services. Two days prior, a veterinarian had examined Murphy and determined the dog to be in good health. Upon leaving Shampooch, Burgess noticed Murphy was acting strangely and was limping. A representative of Shampooch denied any responsibility. The next day, Burgess took Murphy to the vet where he was diagnosed with a dislocated hip and underwent surgery. Burgess filed this claim alleging negligence by Shampooch that caused Murhpy’s dislocated hip. The trial court entered judgment for Burgess and ordered Shampooch to reimburse Burgess for the vet bills he incurred. Shampooch appealed and the court noted that the question of the proper measure of damages recoverable for injury to a pet dog is one of first impression in Kansas, as Kansas case law does not identify any case analyzing the proper measure of damages to an injured pet dog. They also noted that several jurisdictions have found that where recovery is sought for a dog’s injury, however, the owner is entitled to recover the reasonable veterinary expenses incurred in treating those injuries.
ISSUES: Whether the damages awarded should be limited to Murphy’s market value; whether there is a rebuttable presumption that a pet has a market value.
HOLDINGS:
1) The district court did not err in its award of damages to Burgess. When an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment.
2) A pet is different than a motor vehicle or a piece of machinery or other items of personal property in that a pet has no real market value.
3) Murphy’s real value to Burgess as a household pet is noneconomic and, as a result, is difficult if not impossible to appraise in the purely economic terms of market value.
4) The rule that the recovery of damages must not exceed the value of the animal makes sense in the economic marketplace but is certainly problematic in the case of a pet dog whose value is typically noneconomic.
5) When measuring damages to personal property where the item damaged has no market value, other relevant factors must be considered such as cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement.
6) Kansas courts perceive a distinction between the purely economic value of a horse for hire and a pet dog, like Murphy.
6) Unlike other types of personal property, there are no true marketplaces that routinely deal in the buying and selling of previously owned pet dogs.
Kentucky
Burgess v. Taylor
44 S.W.3d 806
Court of Appeals of Kentucky, 2001
FACTS: Taylor was the owner of 2 horses, Poco and PJ, for approximately 14 years and loved them as if they were her children. Due to a variety of medical problems, it became difficult for Taylor to perform some of the physical tasks necessary to properly care for these horses. She arranged for the Burgesses to take Poco and PJ to live on their farm under a free-lease agreement. It was stipulated that Taylor did not intend to surrender ownership of the horses, that she still wanted to have frequent contact with the horses, and that if there ever came a time when the Burgesses were unable to care for Poco and PJ, Taylor would take them back. Within a few days after the Burgesses picked up Poco and PJ, they sold them to a known slaughter-buyer for $1,000. A week later, when Taylor called the Burgesses to say that she wanted to come and visit Poco and PJ, Mrs. Burgess told her that she had given them to a man she met on a trail and did not know his name. Taylor was insistent that she find her horses and so Mrs. Burgess arranged for one of her friends to lie and tell Taylor that he had the horses. This charade continued as Taylor continued to call, plead and search for Poco and PJ. Finally, with the aid of a humane investigator, Taylor learned that Poco and PJ had been sent to slaughter and filed action against the Burgesses. The jury returned a verdict against the Burgesses for breach of contract and intentional infliction of emotional distress and awarded her $1,000 for the fair market value of the horses, $50,000 in compensatory damages for outrageous conduct and $75,000 in punitive damages. The Burgesses appealed.
ISSUES: Whether the evidence supports recovery under the tort of outrage; whether the proper award of damages for the loss or damage to an animal is the value of that animal rather than emotional damages for that loss; whether the jury’s award of $50,000 of compensatory and $75,000 of punitive damages for emotional distress was excessive because under the “first blush” rule, it had to have been given under the influence of passion or prejudice; whether the award of punitive damages should be set aside; whether Kentucky’s “unclear and poorly defined punitive damages law” violated the Burgesses’ right to due process; whether the award of punitive damages for intentional infliction of emotional distress results in double recovery for Taylor; whether the trial court erred in refusing to grant their motion for a mistrial; whether reversible error resulted from the use of hearsay statements at trial.
HOLDINGS:
1) To recover under the tort of outrage, a plaintiff must prove: 1) the wrongdoer’s conduct was intentional or reckless; 2) the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3) there was a causal connection between the wrongdoer’s conduct and the emotional distress; 4) the emotional distress was severe. Taylor presented sufficient evidence of each of these required elements and the trial court properly submitted the claim to the jury.
2) There are no cases in Kentucky holding that a finding of intentional infliction of emotional distress or punitive damages is precluded simply because the facts giving rise to the claim involve an animal.
3) The “first blush” rule is not the proper appellate standard for review of an award of damages.
4) The Burgesses’ “general objection to the instructions as tendered” is without specification and insufficient to preserve error and thus, the argument that the award of punitive damages should be set aside must fail.
5) The issue of whether Kentucky’s “unclear and poorly defined punitive damages law” violated the Burgesses’ right to due process was not raised in or decided by the trial court and as such is precluded from our review.
6) Taylor’s award of punitive damages for intentional infliction of emotional distress did not result in double recovery. A victim of outrageous conduct can recover both compensatory and punitive damages.
7) Absent an abuse of discretion, a trial court’s decision whether or not to grant a mistrial will not be disturbed. There was no such abuse of discretion in this case; thus, the ruling of the trial court will not be disturbed.
8) The hearsay statements at issue were properly admitted under KRE 801A, which allows prior statements of witnesses and admissions if the declarant is available as a witness, and is examined concerning the statement, after the proper foundation is laid, and the statement is inconsistent with the declarant’s testimony at trial.
Michigan
Koester v. VCA Animal Hospital
244 Mich.App. 173
Court of Appeals of Michigan, 2000
FACTS: Koester left his dog at VCA’s kennel for a weekend with explicit instructions not to use a collar on the dog because of a salivary gland problem. Upon returning for the dog, Koester noticed that the dog’s neck area was swollen. A few days later, Koester returned to VCA and a veterinarian treated the dog by draining its enlarged gland and bandaging its neck and head. Noticing that the dog appeared to have trouble breathing, Koester asked the veterinarian whether the bandages were too tight. The veterinarian told him the dog would be fine once he calmed down. Later that same day, Koester left the dog alone for 10 or 15 minutes to run an errand. When he returned home, he discovered the dog laying motionless on the floor. An autopsy revealed that the dog suffocated to death because the bandages were wrapped too tightly. Koester brought this negligence action pleading damages that included pain and suffering, extreme fright, shock, mortification, and the loss of the companionship of his dog. VCA motioned for summary disposition for failure to state a claim on which relief can be granted and the trial court agreed, holding that emotional damages for the loss of a dog do not exist because a dog is considered property.
ISSUES: Whether emotional damages may be awarded for the loss of a property; whether the Court should create for pet owners an independent cause of action for loss of companionship when a pet is negligently injured by a veterinarian.
HOLDINGS:
1) Pets are still considered property under Michigan law. There is no precedent that permits the recovery of damages for emotional injuries suffered as a consequence of property damage. Koester’s complaint failed to plead legally cognizable damages and was properly dismissed.
2) It is within the province of the Legislature, not the Judiciary, to create a cause of action for loss of companionship and emotional injuries that result when a pet is negligently injured by a veterinarian.
New Jersey
Harabes v. Barkery, Inc.
791 A.2d 1142
Superior Court of New Jersey, 2001
FACTS: The Harabes’s claim that their dog died of medical complications after she was negligently subjected to extreme heat for an extended period of time at The Barkery, a dog grooming business. Harabes filed suit seeking damages for mental distress and loss of companionship.
ISSUES: Whether the Harabes’s are entitled to recover for emotional distress and loss of companionship resulting from the death of their pet dog.
HOLDINGS:
1) There is no New Jersey precedent permitting a pet owner to recover non-economic damages when a pet is negligently injured or killed. Therefore, the court looks to the logic, policy and rationale which underlies similar cases in this and other jurisdictions for guidance.
2) While many jurisdictions have allowed for recovery for intentional infliction of emotional distress if the conduct resulting in injury to or death of a pet is either intentional, willful, malicious, or reckless, there is no evidence to suggest, that plaintiffs’ dog dies as a result of intentional, willful, malicious, or reckless conduct by defendants.
3) Public policy considerations prevent pet owners from recovering emotional distress and loss of companionship damages in connection with the loss of a pet dog.
New Jersey
Hyland v. Borras
719 A.2d 662
Superior Court of New Jersey, 1998
FACTS: Borras’ American bulldog trespassed onto Hyland’s property and attached her 10 year old shih tzu, causing serious injuries to the dog. As a result, the shih tzu was hospitalized and underwent surgery to repair torn ligaments and broken and crushed bones. Borras conceded liability and the parties submitted the issue of damages to the judge on stipulated facts. Hyland spent $2,500 for veterinary treatment, supplemental dietary pills, and travel in treating her dog. These expenses were five times greater that the $500 cost of a new shih tzu. Despite this, the trial judge entered judgment against Borras for $2,500 concluding that Hyland was entitled to recover an amount that would compensate her for the loss and return her to the same position, monetarily, that she was in before the attack. Borras appealed, arguing that the court erred because the shih tzu is personal property and where the repair costs outweigh the replacement cost of such property, the proper measure of damages is either the diminution in the value of the property, or its replacement cost.
ISSUES: Whether the trial judge erred in awarding Hyland the full extent of her out-of-pocket losses incurred for the injuries suffered by her shih tzu.
HOLDINGS:
1) Generally the measure of damages for the negligent destruction of personal property is the difference between its market value before and after the injury. However, where the market value cannot be ascertained, that rule will not necessarily apply.
2) A household pet is not like other fungible or disposable property, intended solely to be used and replaced after it has outlived its usefulness.
3) It is purely a matter of good sense that Borras be required to make good the injury done as the result of their negligence by reimbursing Hyland for the necessary and reasonable expenses she incurred to restore the dog to its condition before the attack.
New York
DeJoy v. Niagara Mohawk Power Corporation
13 A.D.3d 1108
Supreme Court, Appellate Division, Fourth Department, New York, 2004
FACTS: DeJoy’s horses were electrocuted when wires belonging to Niagara Mohawk Power Corporation fell onto a fence around the property where the horses were kept.
ISSUES: Whether an animal owner in New York may recover damages for loss of companionship.
HOLDING:
1) An animal owner in New York may not recover damages for loss of companionship, which is viewed as legally equivalent to emotional distress, resulting from the death of an animal.
New York
Lewis v. Di Donna
294 A.D.2d 799
Supreme Court, Appellate Division, Third Department, New York, 2002
FACTS: Plaintiff Iris Lewis brought her dog to the veterinarian and received a prescription for an anti-inflammatory drug, Feldene, to treat her dog’s condition. Defendant Al Di Donna, pharmacist at defendant Eckerd Drug Store mislabeled the prescription. He directed plaintiff to give her dog one pill two times per day, instead of one pill every other day. The dog died and the autopsy revealed that Feldene was the probable cause of death. Plaintiff asserted causes of action for consumer fraud and loss of companionship, and sought punitive damages. The trial court denied defendant’s motions to dismiss the consumer fraud cause of action and denied summary judgment on the punitive damages claim. The trial court dismissed plaintiff’s cause of action for loss of companionship, but stated that plaintiff could introduce proof of loss of companionship at trial for damages. Defendants appeal.
ISSUES: Whether a dog owner is allowed to present proof of loss of companionship of her dog at the time of trial as regards the issue of damages.
HOLDING: No, trial court erred in allowing plaintiff the opportunity to present proof of loss of companionship of dog at trial. Loss of companionship is not a cognizable cause of action in New York and therefore should not be considered in determining damages.
New York
Johnson v. Douglas
289 A.D.2d 202
Supreme Court, Appellate Division, Second Department, New York, 2001
FACTS: Plaintiff husband and wife were walking their three dogs down the street when defendant’s allegedly speeding car hit plaintiffs’ dog Coco. The car crushed and killed Coco. Plaintiffs sought emotional distress damages, punitive damages, and application of the zone of danger rule. The trial court granted defendant’s motion to dismiss these causes of action. Plaintiffs appeal the lower court decision.
ISSUES: Whether pet owners can recover emotional distress damages for the negligent or malicious destruction of a dog; whether the zone of danger rule is applicable to witnessing the death of a pet dog; whether punitive damages can be awarded.
HOLDING: Appellate court affirmed. Trial court was correct in granting defendant’s motions to dismiss these causes of action. Pet owners cannot recover for emotional distress for the destruction of a dog because a dog is personal property; zone of danger rule is only applicable to witnessing the death of an immediate family member, which does not include the family dog; punitive damages can only be awarded to vindicate public rights, not private wrongs.
Dabb v. NYNEX Corp.
262 A.D.2d 1079
Supreme Court, Appellate Division, Fourth Department, New York, 1999
FACTS: Plaintiff Penny Dabb, for herself and decedent husband, claims that high levels of stray voltage from defendant NYNEX’s telephone line entered the Dabbs’ dairy farm, coming into contact with the cows. Dabb alleges that this contact caused the cows to become ill and diminished their milk production. Dabb brought claims against NYNEX alleging negligence, private nuisance, trespass to land and chattels, and prima facie tort. Dabb also sought damages for injury to the cows, plaintiff’s business, and for personal injury and wrongful death of her husband. Trial court denied NYNEX’s motion to dismiss the complaint. NYNEX appeals.
ISSUES: Did the trial court err in denying defendant NYNEX’s motion to dismiss plaintiff’s causes of action for decedent’s personal injury and wrongful death, and plaintiff’s loss of consortium?
HOLDING: Yes, trial court erred in denying NYNEX’s motion to dismiss. Cows are considered property, and emotional distress damages are not awarded for the negligent destruction of property or for the observation of damage to a person’s property. Therefore, there can be no compensation for decedent’s injury and death from destruction of his cows, nor can plaintiff recover for loss of consortium. NYNEX’s motion to dismiss these causes of action is granted.
New York
Brousseau v. Rosenthal
110 Misc.2d 1054
Civil Court, City of New York, 1980
FACTS: Brousseau delivered her healthy, 8 year old dog for boarding at Dr. Rosenthal’s kennel on 7/28/79. When she returned to the kennel on 8/10/79, she was told that the dog had died on 8/6/79. In the bailment for mutual benefit, Rosenthal was held only to a standard of ordinary care. Nevertheless, Rosenthal’s failure to return the bailed dog presumptively established his negligence, shifting the burden of proving due care to Rosenthal. Having found Brousseau entitled to recover, the court noted that the general rules and principles measure damages by assessing the property’s market value. It then determined how to figure the value of the dog considering that Brousseau’s dog was a gift and a mixed breed and thus had no ascertainable market value.
ISSUES: How should the court make the plaintiff whole in dollars for Rosenthal’s negligence in causing the death of Brousseau’s dog, considering the fact that the dog was a gift and a mixed breed and thus had no ascertainable market value?
HOLDINGS:
1) Although the general rules and principles measure damages by assessing the property’s market value, the fact that Brousseau’s dog was a gift and a mixed breed and thus had no ascertainable market value need not limit the plaintiff’s recovery to a merely nominal award.
2) Neither the element of uncertainty in the assessment of damages for loss of her dog, nor the fact that damages cannot be calculated with absolute mathematical accuracy is a bar to plaintiff’s recovery.
3) As loss of companionship is a long recognized element of damages in New York, the court must consider such loss of companionship as an element of the dog’s actual value to Brousseau.
4) It would be wrong not to acknowledge the companionship and protection that Brousseau lost with the death of her canine companion of 8 years while ascertaining the value of the dog.
5) The dog’s age is not a depreciation factor in the court’s calculations, for manifestly, a good dog’s value increases rather than falls with age and training.
New York
Corso v. Crawford Dog and Cat Hospital
415 N.Y.S.2d 182
Civil Court, City of New York, 1979
FACTS: Corso brought her 15 year old poodle into the Crawford Dog and Cat Hospital for treatment. After an examination of the dog, euthanasia was recommended. Corso and the hospital agreed that the dog’s body would be turned over to Bide-A-Wee, an organization that would arrange the dog’s funeral. An elaborate funeral for the dog including a head stone, epitaph, and attendance by Corso’s 2 sisters and friend was planned. A casket was delivered to the funeral but upon opening it, Corso found the body of a dead cat instead of her dog. She brought this action against the funeral arranger for mental anguish.
ISSUES: Whether a pet such as a dog is only an item of personal property as prior cases have held; whether an actionable tort was committed; if there is an actionable tort, whether Corso is entitled to damages beyond the market value of the dog.
HOLDINGS:
1) This court overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.
2) A pet is not an inanimate thing that just receives affection, it also returns it. Corso did suffer shock, mental anguish and despondency due to the wrongful destruction and loss of the dog’s body.
3) Corso is entitled to damages beyond the market value of the dog.
4) Losing the right to memorialize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness.
Ohio
Oberschlake v. Veterinary Associates Animal Hospital
785 N.E.2d 811
Court of Appeals of Ohio, 2003
FACTS: The Oberschlakes took their dog, “Poopi,” to Veterinary Associates Animal Hospital to have her teeth cleaned. While Poopi was under anesthesia, the veterinarian also tried to spay her, even though she had previously been spayed as a puppy. She emerged from anesthesia with a 3 inch closed incision on her abdomen. The Oberschlakes sued, alleging veterinary malpractice, negligent infliction of emotional distress, and loss of companionship. The trial court granted the vet’s motion to dismiss the emotional distress and loss of companionship/consortium claims. The Oberschlakes appealed.
ISSUES: Whether the Oberschlakes were entitled as a matter of law to non-economic damages for the loss of companionship and emotional distress they suffered; whether Poopi had a direct cause of action her own emotional distress.
HOLDINGS:
1) This case is not the proper venue for plowing new ground and changing Ohio law to award non-economic damages for personal property such as pets.
2) In the absence of “exceptional circumstances,” damages for loss of personal property, including pets, are typically limited to the difference between the property’s fair market value before and immediately after the loss.
3) There is nothing that distinguishes this case from any other situation where a family pet is injured by the negligent action of a veterinarian and thus, damages were properly limited to costs connected to the improper surgery, and did not include emotional distress or the pain and suffering of either the animal or its caretakers.
4) The Court declines to follow Corso, because it contradicted the Ohio legislature’s classification of dogs as personal property when it overruled prior precedent and held that a pet “occupies a special place somewhere in between a person and a piece of personal property.”
5) Whether or not one agrees with the view that pets are more than personal property, it is clear that Ohio does not recognize non-economic damages for injury to companion animals.
6) Even if Ohio law permitted the award of economic damages, negligent infliction of emotional distress would not have been an appropriate cause of action. Being “shocked” over improper surgery to a dog does not present the type of severe debilitating emotional injury required for negligent infliction of emotional distress.
7) A dog cannot recover for emotional distress or for any other direct claims.
8) One Ohio court has impliedly indicated that dog owners may present claims for intentional infliction of emotional distress. The mental anguish element in such situations must be “so serious and of a nature that no reasonable man could be expected to endure it.”
Texas
Petco Animal Supplies, Inc. v. Schuster
144 S.W.3d 554
Court of Appeals of Texas, 2004
FACTS: Schuster sued Petco after her miniature schnauzer was run over by traffic after escaping from a Petco groomer. Schuster took a default judgment, and the trial court awarded damages, including Schuster’s replacement costs for the dog, her out-of-pocket costs for training and microchip implantation, her wages lost while searching for the dog, Schuster’s mental anguish, emotional distress and counseling costs, intrinsic value loss of companionship, exemplary damages and attorney fees. Petco appealed.
ISSUES: Whether Texas law supports any award for mental anguish and related counseling, loss of companionship, or lost wages for the loss of a dog; whether there was evidence of conduct by Petco to support imposition of exemplary damages; whether the attorney’s fee award was excessive; whether the district court erroneously awarded both breach of contract and tort damages for the same injury.
HOLDINGS:
1) Under Heiligmann, dogs are classified as personal property for damage purposes. Heiligmann identifies only two elements that can be awarded under the “true rule” of damages for loss of a dog: 1) market value, if any, and 2) some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. “Special or pecuniary value” of a dog to its owner refers solely to economic value derived from the dog’s usefulness and services, not value attributed to companionship or other sentimental considerations.
2) Mental anguish damages are not recoverable for negligent property damage as a matter of law. Grossly negligent property damage can support a claim for mental anguish only where there is evidence of some ill-will, animus, or desire to harm the plaintiff personally. The trial court’s award of mental anguish damages must be reversed.
3) Because Schuster cannot recover for mental anguish or emotional harm arising from the dog’s death, the award of counseling expenses must also be reversed.
4) Heiligmann’s “true rule” permitted recovery of a dog’s special or pecuniary value ascertained solely by reference to the usefulness and services of the dog.
5) The court must reject Schuster’s attempt to expand intrinsic value damages to embrace the subjective value that a dog’s owner places on its companionship. Intrinsic value damages are recoverable only where the property is shown to have neither market value nor replacement value.
6) Lost wages are not properly recoverable under Schuster’s tort theories.
7) In order for exemplary damages to have been proper, Schuster would have had to shown by clear and convincing evidence that the harm that she suffered was caused by fraud or malice on the part of Petco.
8) Punitive or exemplary damages may be recovered against a corporation only if the grossly negligent act is the very act of the corporation itself.
9) Exemplary damages are not recoverable for a breach of contract, even one breached maliciously, as a matter of law.
Virginia
Kondaurov v. Kerdasha
629 S.E.2d 181
Supreme Court of Virginia, 2006
FACTS: Kerdasha, who had multiple sclerosis and acquired a dog to help her maintain emotional stability, brought action against Kondaurov for personal injuries sustained when her car was rear-ended by a bus driven by Kondaurov. As a result of the accident, Kerdasha’s dog suffered injuries to his tail and it had to be partially amputated. During Kondaurov’s case, witnesses testified regarding the emotional bond between Kerdasha and her dog and about the emotional distress Kerdasha suffered as a result of the injuries her dog received in the accident. The trial court found for Kerdasha and Kondaurov appealed, arguing that the court improperly permitted the jury to award damages to compensate the plaintiff for her emotional distress arising from concern for her dog.
ISSUES: Whether the trial court erred in denying the defendant’s motion to strike the evidence relating to the plaintiff’s emotional distress caused by the injury to her dog; whether the court erred in refusing to instruct the jury that damages could not be awarded for emotional distress suffered because of concern for the dog.
HOLDINGS:
1) The trial court did not err in denying Kondarouv’s motion to strike evidence related to the condition of the dog or fear arising out of loss of the dog. Kerdasha was entitled to show the totality of the circumstances of the accident. The evidence concerning what happened to the dog during the collisions was admissible to show their violence and severity.
2) The trial court erred in refusing to allow Kondarouv’s Jury Instruction T, which stated plaintiff may not recover for emotional or mental anguish suffered because of her concern for the dog’s injuries in the accident or because of her concern for the dog’s physical or emotional condition thereafter.
9) The trial court improperly permitted the jury to award damages for Kerdasha’s metal anguish arising from her concern for the dog.
2) The fact remains that the law in Virginia regards animals, however beloved, as personal property.
3) The remedy for an injury to a pet is to allow the owner to recover the value thereof or the damage done thereto.
4) Virginia decisions have never approved an award of damages for emotional distress resulting from negligently inflicted injury to personal property and to permit such an award would amount to a sweeping change in the law of damages, a subject properly left to the legislative consideration.
Washington
Womack v. Von Rardon
135 P.3d 542
Court of Appeals of Washington, 2006
FACTS: Three boys took Womack’s cat, Max, from her front porch, doused him with gasoline and set him on fire. Max suffered first, second and third degree burns and had to be euthanized. Ms. Womack received a $5,000 general damages award for emotional distress in a default judgment against 2 of the boys. She appeals unopposed, contending the trail court improperly measured her damages and dismissed her private nuisance, outrage, and statutory waste claims.
ISSUES: Whether the trial court erred in granting summary judgment dismissal of Ms. Womack’s private nuisance, tort outrage, and statutory waste claims; whether the trial court erred in measuring damages; whether the trial court erred in setting post-judgment interest.
HOLDINGS:
1) The loss suffered by Womack when her cat was killed was not a loss related to land or property fixed to the land and thus, there was no cause of action for private nuisance.
2) The record did not sufficiently establish that Womack suffered severe emotional distress and that the defendants intended, rather than negligently brought about that distress, as required to defeat the motion for summary judgment of Womack’s claim of outrage.
3) In order to make a claim for statutory waste, there must be a showing that the injured personal property was attached to the real property.
4) For the first time in Washington, it is held that malicious injury to a pet can support a claim for, and be considered a factor in measuring a person’s emotional distress damages.
5) The trial court properly considered the malicious harm to Womack’s cat combined with Womack’s distress over her son’s harassment when deciding general emotional distress damages.
6) Judgments found on tortuous conduct shall bear from the date of entry at two percentage points above the equivalent coupon issue yield, as published by the board of governors of the federal reserve system, of the average bill rate for 26 week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry.
Washington
Pickford v. Masion
98 P.3d 1232
Court of Appeals of Washington, 2004
FACTS: Masion and Handran’s two Rottweilers escaped from their yard and Pickford’s Pekinese/Chihuahua, Buddy, who was leashed on Pickford’s front porch. After the attack, Pickford was shocky, nauseated, shaking and panicked. Buddy sustained permanent injuries to his shoulder, esophagus, and throat. He is now fearful of larger dogs and no longer goes to daycare. He cannot jump or walk as well as he did before the attack. Pickford sued Masion and Handran, alleging negligent infliction of emotional distress, malicious infliction of emotional distress, and destruction of the guardian-companion animal relationship. She argued that based on Hunsley v. Giard, “a plaintiff who suffers mental distress without physical injury may have a cause of action” and that “this usually will be a jury question bearing on the reasonable reaction to the event unless the court can conclude as a matter of law that the reaction was unreasonable.” Masino and Handran moved for summary judgment, arguing that Washington does not authorize claims for emotional damages arising from injuries to a pet. The trial court granted the motion and Pickford appealed.
ISSUES: Whether Pickford has a cause of action for damages for negligent and malicious infliction of emotional distress; whether Pickford is entitled to damages for harm to a human-companion animal relationship because fair market value compensation is insufficient.
HOLDINGS:
1) Pickford has no legally cognizable cause of action for damages for negligent infliction of emotional distress because no Washington case has extended the Hunsley rule to provide for damages for emotional distress suffered because of injury or threatened injury to a pet.
2) This case is distinguishable from those where courts have allowed a cause of action for malicious infliction of emotional distress because Masion and Handran did not maliciously inflict severe emotional distress on Pickford. At most, they were negligent for failing to keep their dogs contained.
3) Despite the fact that some jurisdictions have allowed emotional distress damages for death or injury to companion animals, in Washington, damages are recoverable for the actual or intrinsic value of lost property but not for sentimental value. Such an extension of duty and liability is more appropriately made by the legislature.
West Virginia
Carbasho v. Musulin
618 S.E.2d 368
Supreme Court of Appeals of West Virginia, 2005
FACTS: Carbasho and her dog, Groucho, were injured when they were struck by a vehicle driven by Musulin as they were walking down an alley. Groucho died shortly thereafter as a result of his injuries. Carbasho filed suit against Musulin seeking damages for her personal injuries and the death of her dog. The parties settled with regard to Carbasho’s bodily injuries. The circuit court entered an order stating that the only issue remaining to be determined was the property damage value of the dog, and whether or not sentimental value, emotional distress and emotional attachment are recoverable damages in West Virginia for the loss of a dog, and if so, to what extent. Musulin moved for summary judgment and the circuit granted it, limiting Carbasho’s recovery for the loss of Groucho to its fair market or assessed value. Carbasho appealed, arguing that the damages recoverable for the loss of a pet dog must include the “true and special value” of the dog to its owner.
ISSUES: Whether damages recoverable for the loss of a pet dog must include the “true and special value” of the dog to its owner.
HOLDINGS:
1) In stating that a plaintiff may recover damages for the loss of a dog by proving the market value, pecuniary value or some “special value”, the Court in Julian v. DeVincent was referring to a dog’s particular traits, pedigree, and/or special qualities, such as whether a dog is a service animal assisting a disabled person. This statement does not suggest that sentimental value or mental suffering are to be considered in an action to recover damages for loss of a pet.
2) The West Virginia Legislature has declared that dogs are personal property. Damages recoverable for the negligent destruction of personal property are limited to the fair market value.
3) Damages for sentimental value, mental suffering, and emotional distress are not recoverable for the negligently inflicted death of a dog.
West Virginia
Haines v. Hampshire County Commission
607 S.E.2d 828
Supreme Court of Appeals of West Virginia, 2004
FACTS: Haines’ dog was seized by police while running at large. The officer was unable to read the dog’s tags and subsequently impounded the dog. The officer posted a public notice for 5 days at the county courthouse, waited an additional 8 days, and then transported the dog to PetSmart where the dog was spayed, treated, for infection, and later adopted. The Haines’ filed suit alleging that their substantive and procedural due process rights were violated. They argued that their dog was held in custody without notifying them of its whereabouts and then was unlawfully sold. The circuit court dismissed the Haines’ complaint and they appealed, seeking repossession of their dog, monetary damages, and the removal of the officer who impounded their dog.
ISSUES: Whether the circuit court erred in dismissing the Haines’ complaint for failure to state a claim upon which relief could be granted.
HOLDINGS:
1) None of the Haines’ allegations state a legal basis upon which any of their requested relief can be granted.
2) A finding of the Court in favor of the Haines would render the effect of numerous animal control statutes virtually null and void. As such, intervention by the Court would necessarily have a chilling effect on future enforcement efforts.
3) The Haines’ quest for repossession of the dog is misdirected as the county is no longer in possession of the personal property sought.
4) The Haines’ alternative request for monetary compensation is without merit as the Haines’ admit that the dog was not assessed as personal property by their county assessor.
5) In order to recover damages for the loss of a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable.