New York
Lewis v. Al Di Donna
294 A.D.2d 799
Supreme Court of New York, Appellate Division, 2002
FACTS: Lewis’s dog was prescribed Feldene, an anti-inflammation drug. The pharmacist mistakenly directed Lewis to give her dog “one pill twice daily” instead of “one pill every other day” as prescribed by the veterinarian. Lewis’s dog subsequently died and the autopsy revealed that the Feldene was a probable cause of death. Lewis brought a cause of action for loss of companionship against the pharmacy. The Supreme Court, Ulster County, denied the pharmacy’s motion for partial summary judgment and dismissed Lewis’s cause of action for loss of companionship but stated that Lewis would be allowed to introduce proof of loss of companionship on the issue of damages. The pharmacy appealed.
ISSUES: Whether Lewis should be able to present proof of loss of companionship of her dog at the time of trial with respect to the issue of damages; whether Lewis’s consumer fraud cause of action should be dismissed; whether Lewis’s claim for punitive damages should be dismissed.
HOLDINGS:
1) The pharmacy’s motion for summary judgment as to Lewis’s consumer fraud cause of action must be denied since plaintiff’s allegations fit within a cognizable cause of action.
2) The allegations of Lewis’s complaint sufficiently allege the pharmacy’s wanton and reckless disregard of Lewis’s rights to withstand pharmacy’s dismissal motion.
3) Damages for the loss of a pet are limited to the value of the pet at the time it died, which is ordinarily proven by establishing the market value of the pet or by such factors which tend to fairly show its value.
4) The Supreme Court erred in allowing Lewis the opportunity to present proof of loss for the purpose of establishing damages. Loss of companionship is not a cognizable cause of action in New York and should not be recognized as a factor of damages.
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.”