Superior Court of New Jersey, Appellate Division
McDougall v. Lamm (unpublished)
Not Reported in 2010 WL 5018258 (2010)
Plaintiff dog owner witnessed her dog be viciously attacked and killed by Defendant's dog. Plaintiff sued Defendant for damages. The appellate court held that Plaintiff’s damages were limited to her dog's “intrinsic” monetary value or its replacement cost. Plaintiff was not entitled to compensation for the emotional distress she experienced in witnessing the attack.
WEFING, BAXTER and KOBLITZ
delivered the opinion of the court.
Opinion of the Court:
*1 This appeal requires us to decide whether a dog owner may maintain a claim for emotional distress when her pet dog is killed in her presence by another dog. Although plaintiff, Joyce McDougall, acknowledges that the loss of her dog's companionship is not compensable under New Jersey law, she maintains that the trial judge erred when he declined to award damages for the emotional distress she experienced upon witnessing her dog being viciously attacked and killed. She asserts that she is entitled to the same emotional distress damages for witnessing the traumatic event as the Supreme Court approved for the witnessing of the traumatic death of a close family member in Portee v. Jaffee, 84 N.J. 88, 90, 417 A.2d 521 (1980). While we can understand plaintiff's considerable attachment to her dog, and the distress she suffered at witnessing such an event, we agree with the trial judge's conclusion that plaintiff's damages are limited to the replacement cost of the dog. We affirm the order under review.
On June 7, 2007, plaintiff was walking her maltipoo dog, Angel, on a public street in Morris Plains. A maltipoo is a mixture of a maltese and a poodle. Without warning, a larger dog came running from the home of defendant, Charlot Lamm, “growling and snarling.” Defendant's dog grabbed plaintiff's dog by the neck, shook her violently several times and dropped her to the ground dead.
Plaintiff acquired her dog, whom she named “Angel,” in 1997, while she was married with three sons. By the time plaintiff's husband moved out of the marital home in 2005, plaintiff's three sons had already left for college. Living alone, plaintiff's enjoyment of her dog's companionship increased. She described Angel as a “friendly, lively, energetic dog” who “loved people ... and especially loved children.” According to plaintiff, the dog was “very approachable and very cute.” Over the years, plaintiff spent considerable time and energy training the dog to perform tricks, which included dancing on her hind legs, making a “wooo” sound for singing, rolling over and playing “dead dog,” shaking hands and playing hide and seek. Because plaintiff did not have outside employment while her sons were still living at home, and did not seek employment once they left for college, she spent a considerable amount of time with the dog and developed a considerable attachment to her. In fact, Angel typically slept in a bed in plaintiff's bedroom. Plaintiff testified she had not acquired another dog to replace Angel because she wasn't “ready to do that yet.” Plaintiff testified that the life expectancy of a maltipoo ranges from sixteen to nineteen years.
Prior to trial, a different judge had granted partial summary judgment to defendant, thereby limiting plaintiff's damages claim to the “intrinsic value,” or replacement cost, of the dog. Defendant stipulated to liability and both sides agreed to waive their right to a trial by jury. At the conclusion of the testimony, the trial judge considered the dog's disposition and training in assessing her value and made an award to plaintiff for the replacement cost of her dog.
*2 In the course of his ruling, the judge specifically determined that “there [can] be no recovery for emotional distress in cases such as this.” In making that determination, the judge considered himself bound by the earlier order for partial summary judgment entered by another judge. The trial judge also relied upon the Law Division opinion in Harabes v. Barkery, Inc., 348 N.J.Super. 366, 373, 791 A.2d 1142 (Law Div.2002), in which Judge Graves held:
... [L]abeling a dog ‘property’ fails to describe the value human beings place upon the companionship that they enjoy with a dog.... A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog. Nevertheless, there is no authority in this State for allowing plaintiffs to recover non-economic damages resulting from defendants' alleged negligence. Furthermore, various public policy concerns [militate] against permitting such claims. Most significantly, there is no reason to believe that emotional distress and loss of companionship damages, which are unavailable for the loss of a child or spouse, should be recoverable for the loss of a pet dog.
[ (Internal quotation and citation omitted.) ]
Recognizing that an award of damages was therefore limited to the dog's monetary value, the judge was guided by Hyland v. Borras, 316 N.J.Super. 22, 25-26, 719 A.2d 662 (App.Div.1998), in which we endorsed a flexible approach to the measurement of damages for injuries to the plaintiff's dog, with the aim of “ ‘mak[ing] good the injury done.’ “ (quotation and citation omitted).
In an appeal from a ruling rendered at the conclusion of a trial, we owe considerable deference to the trial judge's findings of fact and are obliged to accept those findings so long as they are supported by substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974). Our review of the judge's legal conclusions is, however, de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
Plaintiff maintains that the judge erred in refusing to extend the Supreme Court's approval of emotional distress damages in Portee v. Jaffee to a case such as hers where, rather than witnessing the traumatic death of a family member, she was forced to witness the death of a companion dog, with whom she had established a loving relationship. At oral argument, plaintiff confirmed that she is not seeking broader damages for loss of the dog's companionship, and was limiting her claims on appeal to the judge's refusal to award Portee v. Jaffee type damages for the emotional distress she suffered in witnessing Angel's violent death. She asserted that such damages should be limited to pet owners who are able to demonstrate a close loving relationship, perhaps based in part on taking care of the pet.
In Harabes v. Barkery, supra, the Law Division was presented with the dog owners' claim for damages resulting from loss of the dog's companionship when the defendant dog grooming establishment exposed the plaintiffs' dog to excessive heat, which ultimately resulted in the dog's death. Harabes, supra, 348 N.J.Super. at 368-69, 791 A.2d 1142. The defendant stipulated to the plaintiffs' extremely close relationship with their dog and agreed that the death of the dog had been a “traumatic experience.” Id. at 369, 791 A.2d 1142. Judge Graves, then sitting in the Law Division, thoroughly reviewed the reported decisions in the many jurisdictions that, based upon public policy considerations, preclude the owner of a companion dog from recovering emotional distress damages for the negligently-inflicted death of the animal. Id. at 370, 791 A.2d 1142. He noted that some states allow damages for the intentional infliction of emotional distress if the conduct resulting in injury or death of a pet is intentional, willful, malicious or reckless. Id. at 371, 791 A.2d 1142.
*3 Ultimately, after analyzing the factors that would both support and negate awarding damages for loss of a dog's companionship, Judge Graves concluded that such damages should not be recoverable. Id. at 373, 791 A.2d 1142. His principal reason for so concluding is New Jersey's Wrongful Death statute, N.J.S.A. 2A:31-5, which limits damages for the wrongful death of a family member to “pecuniary” loss, together with the deceased's “hospital, medical and funeral expenses.” When interpreting the Wrongful Death Act in Green v. Bittner, 85 N.J. 1, 12-13, 424 A.2d 210 (1980), our Supreme Court held that “[n]o pecuniary value may be attributed to the ... loss of ... emotional satisfaction that would have been derived from the [family member's] companionship”. In light of the Legislature's refusal to permit damages for loss of companionship when a spouse or child dies as the result of the negligence of another, Judge Graves concluded it would be incongruous to make such damages recoverable for the loss of a pet dog. Harabes, supra, 348 N.J.Super. at 373, 791 A.2d 1142.
We recognize that the plaintiffs in Harabes were not asserting a Portee v. Jaffee claim, but were instead presenting an emotional distress claim for the loss of the dog's companionship.1 Thus, although Harabes is instructive, its holding is not controlling. We turn therefore to plaintiff's central claim, namely, that we should extend the reach of Portee v. Jaffee, supra, to encompass an award of emotional distress damages to a dog owner who witnesses the traumatic death of a companion dog. In Portee, the Court established four criteria that must be satisfied before a recovery of such emotional distress damages can be made: “(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress.” Portee v. Jaffee, supra, 84 N.J. at 101, 417 A.2d 521. The Court held that “the interest in personal emotional stability is worthy of legal protection against unreasonable conduct” and the “emotional harm following the perception of the death or serious injury to a loved one is just as foreseeable as the injury itself, for few persons travel through life alone.” Ibid. Ultimately, the Court determined that the “interest in emotional stability” was “sufficiently important” to warrant protection through establishment of a new cause of action. Ibid.
We must now decide whether the policies articulated by our Supreme Court in Portee should be extended to the circumstances presented here. In deciding whether to recognize a new cause of action, we draw considerable guidance from the Supreme Court's analysis in Kelly v. Gwinnell, 96 N.J. 538, 544-45, 476 A.2d 1219 (1984), of the factors to be weighed when a plaintiff proposes the establishment of a new cause of action. In Kelly v. Gwinnell, the Court was presented with the question of “whether a social host who enables an adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunken driving of the guest.” Id. at 540-41, 476 A.2d 1219. The Court observed that these factors should be considered when deciding whether to recognize the proposed cause of action:
*4 ... [W]hether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.
[Id. at 544, 476 A.2d 1219 (internal quotations and citations omitted).]
In determining that a social host should be exposed to liability under the circumstances that were presented there, the Supreme Court observed that “the imposition of a duty is both consistent with and supportive of a social goal-the reduction of drunken driving-that is practically unanimously accepted by society.” Id. at 545, 476 A.2d 1219. The Court pointed to the thousands of deaths caused each year from drunken drivers, the legislative enactments prohibiting liquor licensees from serving visibly intoxicated adults, and the increase in the criminal penalties imposed upon defendants whose intoxicated driving causes the death of an innocent victim. Ibid.
Turning to a review of the societal values at stake here, we agree there is a need to deter dog owners from permitting their dogs to run loose, without being leashed. Such conduct creates a risk of the dog attacking and injuring another dog or a human; however, that societal interest has already been addressed by the Legislature in several of its enactments. First, N.J.S.A. 4:19-16 commonly known as the “dog-bite” statute, already creates liability in tort on the part of the owner of any dog who bites a person, even if the dog had never demonstrated any vicious propensities and even if the owner had no knowledge of the dog's capacity for aggressive behavior. Another statute, N.J.S.A. 4:19-4, authorizes the governing body of a municipality to use a portion of the funds collected from annual dog licensing fees to compensate owners of sheep, lambs, domestic animals or poultry if their livestock are destroyed or wounded by the actions of a dog. Still another statute, N.J.S.A. 4:19-15.16(e), authorizes the municipal animal control officer to take into custody, impound and potentially destroy any dog or other animal found “off the premises of the owner,” if that dog “create[s] a threat to public health, safety or welfare....”
As is evident from its adoption of N.J.S.A. 4:19-16, 4:19-4 and 4:19-15.16, our Legislature has already enacted a comprehensive statutory scheme designed to deter dog owners from allowing their dogs to run loose and penalizing them if they do so. The policy reasons advanced by plaintiff for the extension of a Portee v. Jaffee cause of action to dog owners must fail because the societal interests proposed by plaintiff are already achieved by the statutes we have discussed. Thus, the confluence of powerful public policy considerations that convinced the Supreme Court to establish a new cause of action for social host liability in Kelly v. Gwinnell is missing here.
Moreover, in Portee, the Court expressed concern about the intensely subjective aspects of a claim for emotional distress, noting that in the absence of physical harm to the plaintiff, a jury might award damages for emotional distress that were the product of “mere conjecture and speculation.” Portee, supra, 84 N.J. at 96-97, 417 A.2d 521. After giving careful consideration to the claims being asserted by plaintiff, we decline her invitation to extend Portee v. Jaffee to the circumstances presented here.
*5 In the final analysis, we conclude that if a cause of action for the emotional distress of a dog owner in watching the shocking and violent death of her dog is to be recognized, such recognition should come either from our Supreme Court or from the Legislature. We affirm the Law Division's conclusion that the measurement of plaintiff's damages was limited to Angel's “intrinsic” monetary value; and that plaintiff was not entitled to compensation for the emotional distress she understandably experienced while watching her dog be attacked and killed.
1 We recently recognized that the right to a dog's companionship is enforceable in an action to compel specific performance of an agreement in which the defendant agreed the plaintiff would be entitled to retain the dog after the parties had ended their engagement to be married. Houseman v. Dare, 405 N.J.Super. 538, 546, 966 A.2d 24 (App.Div.2009).