Overview of Damages for Injury to Animals - Pet Losses
Professor David Favre (2003)
1. The Traditional Calculation -- Fair Market Value
2. Application of Market Value to Pets
3. Consequential Damages
4. Intrinsic Value
5. Punitive Damages
6. Mental Anguish or Suffering of the Owner
7. Loss of Companionship
Assuming that an animal has been wrongfully injured or killed, a very important issue arises as to the appropriate method of calculating the monetary damages for compensation for the injury done. In a commercial context, when the market value for a good, such as timber, is readily ascertainable, the calculation is straightforward. With commercial animals the standard categories of compensation are used. With pets, however, the answers are not so clear, as the animal is more than just property.
This court now 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.
Corso v. Crawford Dog and Cat Hospital, 97 Misc. 2d 530; 415 N.Y.S.2d 182 (1979).
As the new century progresses, there is considerable variability in the attitude of courts toward pets. Historically, pets or "companion animals" have been viewed by courts as personal property, with recovery limited to the market value of the pet. This often results in an award of little or no monetary value, as most mixed breed pets have little economic worth in terms of resale or replacement value. While several courts have found that harm to a pet justifies an award beyond mere market value, a number of other courts have flatly rejected any attempt to create new categories for injury to pet animals. In 1994, a Minnesota case specifically declined to find that pet dogs had intrinsic value upon which an award of damages could be based; a dog was found to be just another form of property. Additionally, a 1996 case adopted the traditional market value view when the court declined to award damages, other than medical costs, when a pet poodle had his left front leg and shoulder blade torn off by a kennel owner’s dog. While obviously the dog experienced great pain, he did survive and continue to be the three-legged family pet. The court stated:
We reject the Nichols' argument that the intrinsic value of a dog should be considered in awarding damages for injury to the dog. The Nichols still enjoy the companionship of their pet and there is no evidence of the dog's special purpose.
Nichols v. Sukaro Kennels, 555 NW2d 689 (Iowa, 1996).
The issues of pet loss are also bound up in larger disputes over the appropriateness of allowing recovery for mental pain and suffering to the animal itself within a particular state. Animals pose a unique problem for the underlying theory of damage awards. The primary purpose of a damage calculation is to compensate for the harm, the injury, and the pain and suffering arising out of the wrongful acts of another. Yet, when an animal is harmed, injured or has suffered pain, the legal system has difficulty addressing it directly. There is no case in which the pain and suffering of the animal was the measure of the award. This is because animals are not legal "persons." Only legally recognized "persons" can receive financial reimbursement for legal wrongs inflicted upon them. Our jurisprudence presently focuses solely on the harm to the human owner. In fact, if the harm to an animal is inflicted by the animal’s owner, while there may be criminal liability under state anti-cruelty laws no one has standing to address the injury to the animal. The social movement seeking legal rights for animals may one day change this, but for the moment damages must be calculated solely by reference to the impact of the action to the human owner of the animal.
The current movement in pet damages jurisprudence now focuses more on the impact to the human owners of the creatures injured or killed by the wrongful action of another. Courts now grapple with whether damages can be awarded for loss of companionship of the pet or whether damages can be awarded for the emotional distress suffered by the owner. While the majority of states still reject such damages for a variety of reasons, a few states have broken away from traditional property law notions to provide recovery for these non-human household members.
So long as it is only the human’s pocket book that is harmed, the legal system has developed reasonable rules to handle most situations, and there is little disagreement among the jurisdictions. If it is a person’s mental well-being or emotional bond with an animal that is injured, then the recovery is much less certain and there is great disparity among the jurisdictions as to theory and result.
1. The Traditional Calculation -- Fair Market Value
In all personal property injuries, the measure of damages is the amount that will return the owner to his or her financial status prior to the injury. With animals the primary focus is on fair market value and associated consequential damages (considered in the next section).
Where the animal has a market value, the market value at the time of the loss, or the difference in market value before and after injury will generally be the measure applied. Any special value, particular qualities, or capabilities are generally considered as factors comprising market value. For example, when an owner has received the market value of an animal, he or she will have been compensated for any use he or she might have made of the animal for breeding purposes. In a commercial context, the high production rate of a slaughtered cow is to be considered as a particular quality along with breed, age, condition and other factors in computing the animal’s market value.
This rule is easily stated but the calculations must be done on a case-by-case basis and are ultimately a jury decision. Evidence of market value may be presented to the court by the owner and/or by expert witnesses. The primary concern is just what elements will comprise the market value. In essence anything that affects commercial value may be considered. Various courts have agreed that the following elements are appropriate to consider:
(1) the pedigree of the animal;
(2) the purchase price of the animal and the sale price of its litter mates;
(3) the special abilities or training of the animal, also prizes and awards;
(4) the age and the general health of an animal;
(5) the fact that the animal was pregnant.
One unusual fact situation arose when a trespassing purebred bull impregnated a neighbor’s purebred breeding cows, not of the same breed. The measure of damages was the market value of the cows before the impregnation, as purebred minus the market value afterwards of commercial grade cows. In effect, there is a loss of a purebred for one breeding cycle. The court said that since the bull was of a different breed it was as if it was by a "scrub" or inferior bull.
While the defendant may present his or her own evidence as to the market value of the animal, the courts have rejected the suggestion that damages be limited to the declared value given by the plaintiff for personal property taxes. The courts have correctly rejected this measure, for while tax value is, in theory, related to the fair market value, the correlation is less than absolute. It is better to work directly with fair market value, rather than deal with intermediate tax assessment and declaration questions.
Determination of value for a race house can be very difficult. The purchase price of a young horse that develops racing potential is not reflective of its value if it becomes a winner. A Louisiana court was faced with a horse that was purchased for $5,000, was insured for $35,000 and the owner had evidence of one offer at $50,000. The court held that the owner had at least shown enough to receive the full face value of the insurance policy. Leblanc v. Underwriters at Lloyd's, 402 So.2d 292 (1981).
In any calculation of damages it is important to determine whether or not the owner of the animal has carried out his or her duty to mitigate damages. Tort concepts recognize that the injured owner has a duty to minimize the loss to the extent that he is reasonably able to do so. The duty to mitigate deals with the injured party’s actions after the event. This is distinct from actions prior to the injury-causing event, which are included under the concept of contributory negligence. In various jurisdictions this would also influence the award of damages. Duties of mitigation and contributory negligence are not animal fact-dependent. The general tort laws of each state will govern these issues.
In a 1979 Louisiana case the defendant, an oil company, had an oil leak which flowed into a drainage ditch through the plaintiff’s pasture. The plaintiff became aware of the spill and over a series of days the defendant arrived and cleaned up the spill. While no illness was initially discernable, 31 cows and 12 calves eventually died; 97 cows and 65 calves were injured by ingesting the oil. The court found that since the plaintiff had not removed the cattle during the clean-up, as he easily could have, the injuries were greater than they might otherwise have been. The court cut the award in half, the plaintiff receiving $11,187 in compensation. If an injured party must expend money to mitigate damages, these expenditures are normally recoverable as consequential damage (see next section). Crowson v. Bayou State Oil Corp., 367 So.2d 417 (La. 1979).
When a difference in market value is difficult to calculate, the courts may allow damages to be the reasonable and necessary cost expended in restoring the animals to their previous condition. When a defendant illegally drove the plaintiff’s cattle on a seven-mile trip, the court awarded the cost of the additional feed necessary to bring the cattle back up to their previous weight. In case of personal property other than animals, this is the equivalent of awarding the cost of repairs.
Finally, one variation on strict fair market value arises when the raising of animals is analogous to the raising of crops. When the injured animal is being raised by the owner for commercial sale, and there is no regular market for an injured animal of a particular age, then the calculation can be based upon what the animal would have sold for at the end of the normal selling cycle. For example, X obtains calves, raises them for a year and then sells them as part of his normal business cycle. If the animals are injured four months into the cycle, and a replacement market is not fairly available, then the measure of damages would be the fair market value of the animals at the end of the normal cycle less the combination of the actual sales price, if any, and the expenses saved, if any.
2. Application of Market Value to Pets
The calculation of market value for companion animals is based on this commercial precedent. However, most pets of mixed breed or advanced age have no market value when viewed under the traditional paradigm. Indeed, one court noted that market value is "generally the measure of damages for the negligent destruction of personal property is the difference between its value before and after the injury." Hyland v. Borras, 316 N.J. Super. 22, 719 A.2d 662 (App.Div. 1998). However, in affirming an award of damages beyond market value for the negligent attack on plaintiff’s dog, the court distinguished pets from other personal property. Most companion animals have no calculable market value and the value of the animal arises from the owner’s subjective relationship with the pet.
Most courts refuse to see beyond the traditional notion of market value for the loss of a pet. While much of this stems from courts’ unwillingness to sustain intentional or negligent infliction of emotional distress claims based on pet injury, these courts fall back to the common law precedent in crafting their opinions. Indeed, as noted in two cases, courts often refuse to break with precedent to consider an award of damages for pets beyond market value. Soucek v. Banham, 524 N.W.2d 478 (Minn.Ct.App. 1995); Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988). Additional awards are often based on separate torts from consequential damages suffered from a result of the negligent or intentional act.
There have been cases have allowed awards beyond market value where the pet had some special value beyond that of a "average pet." For example, in Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y.City Civ.Ct.,1980), the court awarded damages beyond the mixed breed dog’s market value for the protective value the dog provided to a widow. It should be noted, however, that courts carefully distinguish between elevated market value damages and damages pled as "sentimental damages." Courts, while recognizing alternative cause of actions for the injury to pet (e.g., emotional distress or loss of companionship), reject the notion of awarding damages based on the sentimental value of property (i.e., the pet). As noted in Mitchell v. Heinrichs, 27 P.3d 309 (Alaska,2001):
We agree 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. . . Thus, an owner may seek reasonable replacement costs--including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training . . . But while these damages may more accurately reflect the animal's actual value to the owner, Mitchell may not recover damages for her dog's sentimental value as a component of actual value to her as the dog's owner. [footnotes omitted]
Of course, in all reality, it is that sentimental attachment to pets that distinguishes from most other forms of personal property. In an effort to sustain higher damages awards, courts must then look beyond traditional notions of valution.
3. Consequential Damages
When one party injures another’s property, that party is liable not only for the loss of value of the property itself, but also liable for the normal and foreseeable consequential damages that arise from the injury. These are divided into two different categories: additional expenses and loss of income or loss of use. To claim an expense, the animal owner would have to show that the expenditure of funds would not have happened but for the injury and are directly related to the injury. Expenses such as veterinary bills are often incurred in an effort to save an animal (mitigate damages). As long as these are reasonable the court will normally award them. Some of the expenses awarded by courts include:
(1) the cost of treatment and labor for sick cattle;
(2) the increased feed expense;
(3) the veterinarian’s fee; and
(4) the cost of searching for lost cattle.
It is the burden of the injured party to present sufficient evidence as to the amount of consequential damages, for a jury may not award them if they would be speculative or mere conjecture. Some courts have been unwilling to allow the award of veterinarian bills when dealing with pets that have relatively low fair market value. Although not stated in the opinions, it is presumed that veterinarian bills are disallowed as unreasonable to the extent that they exceed the value of the dog. This is the wrong test for reasonableness. If an individual injures a pet, it is certainly foreseeable that professional care will be obtained to care for the animal. The consequential damages of veterinary fees should be allowed, if reasonable. A charge would be recoverable if (a) the charge for the service rendered is reasonable, and (b) the service rendered was medically appropriate under the circumstances. In one case the defendant’s dog got the neighbor’s dog pregnant, for a second time. The court held the defendant liable for insufficient control of the dog. "Because plaintiff's dog was impregnated too soon after the first pregnancy, she had complications which resulted in a cesarean section, the death of all the puppies, and later the need for a hysterectomy. The medical expenses incurred by plaintiff in connection with the pregnancy totaled $851." The dog continued to live with loss of reproductive capacity the only long-term effect. Additionally, the market value of the dog was presumably less than $850. Nevertheless the court found no difficulty in awarding the cost of the medical treatment stating, "good sense in this case compels a judgment in favor of plaintiff." As long as the efforts of the veterinarian did not constitute heroic attempts to save the animal when there was little chance of success, then the fees should be awarded as consequential damages.
In addition to out-of-pocket expenses the individual causing the injury may also be liable for the owner’s loss of use of the animal or lost profit. It is important to distinguish between the value of the animal and loss of income to an ongoing business. In commercial activities the animal represents the capital investment of a business, and the value of an animal includes its potential for producing income. When the animal produces a commodity such as milk or eggs the owner may not be fully compensated without consideration of loss of profit. For example, if a food additive kills some of a dairy herd and injures others, not only must the value of the dairy cows be recovered but the loss of the sale of milk as well. The loss of income should be allowed for such period of time as is reasonably necessary for the owner to replace or cure the animals and return to full production (less any savings in overhead). In one case where the defendant negligently delivered contaminated feed for the plaintiff s chickens, the court awarded full loss of revenues for the period of time during which the chickens stopped laying eggs.
Another important issue that involves the product of an animal is stud service. Where an animal has proven abilities as a stud, it becomes a factor in determining the fair market value of the animal. In some situations it is appropriate to award loss of stud fees as well as the market value of the animal. See, Carter v. Louisiana State University. Where there is an ongoing business, the arrangements for the use of the animal have been contracted for prior to the injury, the injury precludes performance of the contract, or an owner is unable to provide a suitable substitute in the time available, then the loss of the profit should be awarded to the animal owner. Loss of profit deals with fixed contract obligations and not with general ability of the animal over a lifetime of service.
4. Intrinsic Value
One category of damages has been suggested as an alternative to market value, a pet animal’s intrinsic value. The term intrinsic focuses on the animal as an individual as well as its relation to human possessors/ owners. The latter is considered by other cases under the term "loss of companionship".
Because of the characteristics of animals in general and of domestic pets in particular, I consider them to belong to a unique category of "property" that neither statutory law nor caselaw has yet recognized. Bueckner v. Hamel, 886 S.W.2d 368, (1994 Tex App) ( LEXIS 2168.
Similarly, the Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (N.Y.City Civ.Ct., 1979), has been characterized recently as allowing damages based on intrinsic value. "In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog. A pet is not an inanimate thing that just receives affection it also returns it." Whether this will develop into a separate category of damages for injury to animals only future cases will decide.
5. Punitive Damages
Punitive damages are not meant to compensate an owner for injury to his property, but to punish the person causing the injury for his unacceptable conduct. Negligence alone will not support a claim for punitive damages. The actions of the individual must show a malicious, willful or reckless disregard for the rights of the animal and its owner. For example, in one case, a city employee hurled a trashcan at a miniature dachshund while collecting the trash. The injuries killed the dog. The court allowed punitive damages based upon the nature of the conduct. It is not necessary that the individual causing the harm knew the owner, rather that he is aware that the animal is, in all likelihood, was owned by someone. (See, LaPorte v. Associated Independents, Inc. 163 So.2d 267 (Fla. 1964).
The doctrine of punitive damages provides, in effect, an alternative to criminal actions, in that, the state will seek to discourage or punish unacceptable conduct by allowing the equivalent of civil fines, particularly when the traditional measure of damages is not sufficiently large to discourage such conduct in the future. California allows it by statute. Some support punitive damages as an incentive to the plaintiff to sue when the conduct of the defendant is extreme, somewhat like a bounty or as a "private attorney general." Therefore, focusing on the seriousness of the defendant’s conduct gives a better idea of the appropriateness of the award than would examining the damages actually caused.
One Florida case stated that a plaintiff’s pleadings supported a claim for punitive damages when the defendants cremated a dog that had died while in their care, even though they had been requested to hold the dog for an autopsy. Another court upheld an award of $500 in punitive damages when government employees captured a cat and then killed it on the same day, in contravention of state statute. Wilson v. City of Eagan, 297 N.W.2d 146 (Minn., 1980). But another court held that punitive damages against a municipality cannot be awarded without statutory authorization.
In determining the appropriate amount for a punitive damage award, the jury should consider:
(1) the degree of malice involved;
(2) the nature of the interest invaded;
(3) the amount needed to deter such conduct;
(4) the cost of bringing the suit; and
(5) the wealth of the defendant.
Each jurisdiction may have its own requirements that must be satisfied. Claims for punitive damages arising out of an injury to an animal do not differ significantly from any other fact situation. Therefore, the general rules should apply directly to animal cases. Even within a given state the rules for the awarding of punitive damages can shift. For example, in 1994 one case in Minnesota disallowed a claim of punitive damages because it was based upon damage to property, a pet, rather than damages to a person (with a dissent). Soucek v.Banham, 524 N.W.2d 478, 1994 Minn.App. LEXIS 1191. Two years later another Minnesota court did allow punitive damages (again with a dissent). Molenaar v. United Cattle Co., 553 N.W.2d 424, 1996 Minn. App.LEXIS 870.
The recent Kentucky case of Burgess v. Taylor, 44 S.W.3d 806 (Ky.App.,2001), illustrates a viable claim of punitive damages, where plaintiff’s pet horses were knowingly sold for slaughter by defendant-boarders. While the appellate court’s function was simply the review of the $75,000 punitive damages award, its affirmance of the award indicated animals were the proper subjects for such an award.
The court in Propes v. Griffith 25 S.W.3d 544 (Mo.App. W.D.,2000), also sustained a punitive damages award where a neighbor intentional shot plaintiff’s dogs. The court found the trial court properly awarded punitive damages against Mrs. Griffith because as stated in the judgment, "her actions were outrageous, show[ed] reckless indifference for the rights of others, and to deter defendant Sarah Griffith and others from like conduct in the future."
On the other hand, in Carroll v. Rock, 469 S.E.2d 391 (Ga.App.,1996), the court overturned a jury award of punitive damages for defendant veterinarian’s negligence in allowing plaintiff’s cat while being boarded at the kennel. The court found that the trial court's charge included an instruction authorizing the jury to award Rock damages if the injury was to her peace, happiness or feelings. The appellate court noted that the "peace, happiness or feelings" language comes directly from the vindictive damages statute. Thus, the court held it was reversible error to charge the jury with such an instruction where there was no evidence of willful misconduct, malice, fraud, wantonness or oppression. Because the jury's award for "mental anguish, pain & suffering" was very likely a vindictive damages award, the court found the charge prejudicial.
6. Mental Anguish or Suffering of the Owner
The previous discussion of damages has focused upon the economic injury to the animal’s owner. This, however, may not represent the full extent of the loss incurred by the owner. When dealing with pets in particular, emotional ties may have developed between the owner and the animal of a nature not unlike the tie between a parent and a child. As an animal becomes important in the daily life of an individual, the injury or death of the animal represents an increasingly significant threat to the mental well being of the owner. A harm of this nature is categorized as either mental pain and suffering or, in a less extreme situation, loss of companionship (considered in next section). Both of these bases of recovery deal with harm to the mental rather than physical well being of a human.
To a large extent the recovery for the destruction or harm of pets under a theory of mental pain and suffering is subsumed within the broad policy and practical conflicts on the issue within each jurisdiction. The judicial system has shown a general reluctance to award damages for mental pain and suffering. This is particularly true when the distress is caused by the loss of a pet. Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa, 1996). Historically, two arguments have been suggested in justifying the courts’ reluctance: "mental pain and suffering" were considered evanescent, intangible, peculiar, and entirely idiosyncratic; there were also questions as to the ability of the judicial system to quantify damages and to separate legitimate claims from the fraudulent or frivolous ones.
The 1970s and early 1980s saw a greater willingness to award damages for mental pain and suffering in some jurisdictions. In so doing the courts have sought to find the proper balance between two important considerations. There has been growing acceptance within the medical profession that mental distress is a real, predictable and observable consequence of certain events, specifically, the disruption of emotional relationships, or of observing the injury or death of someone with whom the observer has an emotional bond. There has also been a willingness in some courts to expand the legal concept of personal injury to include this new knowledge. In so doing the courts are seeking to fulfill the fundamental tort concept of full recovery for all unlawful injuries. On the other side of the issue, however, is a reluctance to impose unlimited or unpredictable liability on a defendant. If the door is open for recovery in limited situations, based strictly on mental pain and anguish, where is the line to be drawn? What is the financial extent of the duty, how will it be measured? Is the defendant liable to all who see an event such as the hitting of a cat by a car? Is he liable to those who hear the event or are told about it, What is a fair burden (risk) to impose upon negligent actor (or an intentional actor)? How far will the judicial system expand the concept of foreseeable injury? The courts have drawn the line at various places. As a result there is a spectrum of holdings that make generalizations difficult and suggests that the development of this legal issue is not yet complete.
While some courts state the issue in terms of whether or not an award for mental distress will be allowed, in reality the question is whether or not a claim for mental distress constitutes a cause of action. The ultimate direction of this discussion is the creation of a new tort, the freedom from negligent infliction of mental distress. When, if ever, all jurisdictions will adopt this is, of course, unpredictable. But the late 1970s and early 1980s saw considerable movement in this direction. As the new century continues, the courts remain significantly split on fundamental policy points.
To the extent that a tort existed, then much of the negligent killing or injuring of pets would result in awards of money to the owners to compensate for mental stress. Aside from the general discussion of mental distress, there are additional policy considerations supporting recovery of pain and suffering when a pet is involved. As it is foreseeable that a child will have a caring parent, it is also foreseeable that a pet will have an owner who cares for the animal and who would be distressed by its injury or death. The mental well being of many individuals is, to an observable degree, dependent on the stable relations with pets. Society benefits from the adoption of those policies that will promote both the well being of its citizens and life in its multiple forms. At present the risk of significant or deterring punishment for harming a pet is very low. As a result, some people are careless about causing injury or harm to pets. If it is understood that additional damages to the owner could be awarded for mental distress, then perhaps more care would be given to pets by third parties. The broader awards of damages in civil actions should be supported in particular, because at the moment criminal prosecution for the injuring of animals does not receive a very high priority. Without civil actions by owners, the intentional or negligent injuring of animals may continue to be inadequately addressed.
The following examples are listed to illustrate the scope of the existing spectrum of requirements that must be met for recovery of mental distress. It will begin with the most restrictive requirements and end up with the least restrictive requirements, as represented by the Hawaiian case.
(a) Ms. Z and her poodle are proceeding across Elm Street when Mr. X’s pickup truck hits them both after running a red light. Ms. Z develops severe headaches and stomach cramps.
Ms. Z would be able to recover for mental distress arising from the dog’s injury in all jurisdictions allowing recovery for injury to a pet, because she was physically touched by the same action that caused the injury to the pet. The physical contact by the defendant was historically the first exception to the general bar to recovery for mental stress.
(b) Ms. Z and her poodle are crossing Elm Street. The poodle is five feet in front of Ms. Z. Mr. X’s pickup truck hits the poodle but just misses Ms. Z after going through a red light. As a result she develops severe headaches and stomach cramps. This would satisfy the "zone of danger" exception, which allows recovery for mental distress, only if at the time of the injury there was fear of injury to self as well as concern for the dog. Some jurisdictions allow some form of this exception.
(c) Ms. Z is waiting at a stop light on Elm to cross the street. Before she sets out the dog runs ahead and is hit by Mr. X’s pickup truck, which was making an illegal right turn. As a result Ms. Z develops severe headaches and stomach cramps.
In this situation Ms. Z is not in the zone of danger and would not be able to recover under the previous two exceptions. In several jurisdictions Ms. Z will nevertheless be able to recover for mental distress because she has observed the injury and her distress has physical manifestations.
(d) Ms. Z is in her house when she hears tires squeal; she runs outdoors and sees her seriously injured poodle on the edge of the road. It had been hit by Mr. X’s negligently-driven pickup truck. As a result, Ms. Z develops severe headaches and stomach cramps. Recovery would not be allowed in many jurisdictions because, while the injury was immediately observed, the accident itself was not. Some jurisdictions would allow recovery only if the mental distress led to substantial physical injury. But a number of courts have specifically not allowed recovery on these kind of facts.
(e) Mr. X, observes Ms. Z’s poodle on the side of the road and having hated the poodle for several years, intentionally runs the dog down. Ms. Z is at work when the incident occurs and learns of it upon arriving home.This differs from the previous fact situations primarily because the injury was intentional.
When the conduct is classified as extreme or outrageous, recovery is possible for mental distress in some jurisdictions even though the incident was not observed by the owner. The same facts may also give rise to a claim for punitive damages. These claims are different, however. One is based on the mental distress of the owner, the other on a desire to punish particular conduct. The two concepts should be kept separate.(f) Ms. Z’s poodle is negligently run over by Mr. X on Elm Street. Ms. Z finds out when a neighbor calls to tell her. Although severely distressed for several weeks, Ms. Z never has to see a doctor.Recovery under these facts can occur only if the jurisdiction has fully recognized the tort of freedom from mental distress. There is no direct observation of the injury and the mental distress does not manifest itself in physical injuries.
The last example represents the decision in Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Hawaii, 1981), where the Hawaiian court upheld an award for mental distress to five members of a family whose dog was killed. While being transported to a private hospital by a state agency, the dog was kept in an unventilated van in the hot sun, and died of heat prostration after arriving at the pet hospital. The court upheld the $1,000 award even though the family had not watched the animal die or seen its body. They learned of its death by phone, and they did not have to seek psychiatric or medical assistance. Very few jurisdictions would allow recovery in this situation. What the Hawaiian court did was eliminate the preconditions of time, place, relationship and physical injury that are imposed by other jurisdictions. Instead, it used a test of foreseeability and relegated the preconditions to factors considered in determining the level of damages rather than the existence of a cause of action. This approach eliminates the arbitrary drawing of lines but many courts still feel uncomfortable in abandoning the screening test first suggested in the Dillon case of California.
In addition to the Hawaiian case, Florida, Kentucky, Idaho, Louisiana and Texas have allowed recovery for mental anguish in animal cases. Many of these cases are without policy discussion and without criteria for determining when recovery is appropriate or what level of damages is appropriate. The mere allowing of any recovery for mental distress is so new that there has not been much attention given to the criteria that might be used in judging the appropriate amount of damages in a given situation. As the jury instruction reprinted in note suggests, it is the common experience of the jury that will ultimately set the appropriate level of compensation.
There are two different types of mental distress at issue. The first is the immediate and intense emotional reaction to seeing an injury occur; the immediate shock often evolves into a second level of mental distress including grief, distress at the loss, and disruption of normal life patterns. While these are private responses of the individual animal owner, many objective factors exist that the jury can look to as a broad check on the claims of the plaintiff. How long had the animal been a pet, how close or important was the pet to the owner? Did the injury or death occur in such a manner as to be particularly difficult to cope with? Was medical help sought? Did the owner of the animal have to change his or her pattern of living? The jury ultimately must sort through the facts and claims by weighing them against their own experience of what happens to people when something that they have formed emotional bonds with is injured or killed.
Despite the difficulties faced by pet owner plaintiffs, courts have recently shown that the fact a case involves a pet does not necessarily negate a cause of action for emotional distress. In Burgess v. Taylor, 44 S.W.3d 806 (Ky.App.,2001), the court held that the subject matter (i.e., a pet) does not preclude an award for emotional distress in Kentucky.
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. Indeed, we conclude that the second element in application of the tort of the intentional infliction of emotional distress depends on the facts of the case as to the offender's conduct and not to the subject of said conduct.
Cases that disallow emotional distress often rely on the lack of precedence in allowing these claims, rather than dissecting public policy reasons. In Fackler v. Genetzky, 595 N.W.2d 884 (Neb.,1999), the court followed Nebraska precedence in disallowing an emotional distress claim.
In considering the cases involving negligent injury or destruction of animals, however, we determine that the majority approach is well reasoned and consistent with settled principles of Nebraska law. This court has clearly held that animals are personal property and that emotional damages cannot be had for the negligent destruction of personal property. People may develop an emotional attachment to personal property, whether animals or inanimate objects with sentimental value, but the law does not recognize a right to money damages for emotional distress resulting from the negligent destruction of such property.
Similarly, in Roman v. Carroll, 621 P.2d 307 (Ariz.App., 1980), an action was brought to recover damages for negligent infliction of emotional distress caused when plaintiff witnessed defendants' St. Bernard dismember her poodle while she was walking the dog near her home. The court of appeals held that plaintiff could not recover damages for negligent infliction of emotional distress under such circumstances simply because the dog was deemed personal property.
Some courts have skirted the issue of whether they would indeed allow either an intentional or negligent infliction of emotional distress claims for the loss of pets and instead have found a missing element for the claim. In Carroll v. Rock, 469 S.E.2d 391 (Ga.App.,1996), the court noted that recovery for negligent infliction of emotional distress is allowed only where there has been some impact on the plaintiff that results in a physical injury. Similarly, in Gill v. Brown, 695 P.2d 1276 Idaho App.,1985, the court also held that plaintiff’s claim for NIED fails where no physical injury was alleged. Neither opinion suggested that a cause of action would be precluded because the facts concerned injuries to pets.
Courts do appear more willing to honor claims of intentional infliction of emotional distress versus those involving intentional acts. In Carroll, the court also held that plaintiff’s intentional infliction of emotional distress claim also must fail where the conduct did not rise to the "outrageous" level. Where intentional infliction of emotional distress is alleged, the plaintiff need not show an impact, but must show that the defendant's conduct was outrageous or egregious. The court never, in effect, addressed whether state law allowed such claims with regard to pets.
In Gill, the court allowed plaintiffs to proceed on a cause of action for intentional infliction of emotional distress. In their complaint, the Gills allege that Brown "negligently and recklessly" shot and killed the donkey, that the donkey was both a pet and a pack animal, and that the loss of the donkey has caused the Gills to suffer "extreme mental anguish and trauma." By alleging that Brown's conduct was reckless and that they thereby suffered extreme mental anguish and trauma, the Gills have alleged facts that, if proven, could permit recovery under an intentional infliction of emotional distress cause of action. Thus, there appears a greater willingness to recognize claims of intentional infliction of emotional distress. Perhaps this results from the courts’ concern for deterrence as well as the recent trend in addressing animal cruelty of any form.
7. Loss of Companionship
The immediate mental pain and suffering of pet owners following the death of a pet is frequently succeeded by a long term feeling of loss of the animal’s companionship. To the extent that a particular pet is part of the family relationship, some attempt can be made to compensate for the loss. The most extreme situation may be when the pet is owned by an elderly person. Frequently in such cases the pet has, in effect, become the family for that individual.
One Florida case allowed recovery for the "peculiar" value of a dog to its owner. Wertman v. Tipping, 166 So2d 666 (Fla. 1964). A 1987 Illinois case while disallowed loss of companionship as a separate cause of action would have allowed it as part of the damage calculation and distinguished it from recovery for emotion distress which requires the owner to have been in the zone of danger when the events occurred. Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill. App.3d 818, 510 N.E.2d 1084 (1987). An earlier New York case not only allowed damages based upon loss of companionship but also on loss of protective value (but total damages awarded only came to $550). Brousseau v. Rosenthal, 110 Misc2d 1054, 443 N.Y.S.2d 285 (1980). In 1988 Pennsylvania specifically disallowed this measure of damages. This line of analysis is a simpler and viable alternative to the complexity of the pain and suffering labyrinth. Daughen v. Fox, 539 A.2d 858 (1988). But again this form of damages will most likely parallel the development of the concept as relate to the loss of children by parents.
Many courts flatly refuse to entertain such claims. In Gluckman v. American Airlines, Inc., 844 F.Supp. 151 (S.D.N.Y.,1994), the court denied plaintiff’s cause of action for loss of companionship after American Airlines’ negligent actions resulted in plaintiff’s dog’s death in the cargo hold.
In viewing a pet as more than property, however, the Corso opinion, and the few cases that follow it, are aberrations flying in the face of overwhelming authority to the contrary [emphasis added] . . . In addition, the Corso court provides no legal reasoning why prior precedent should be overruled in categorizing pets as more than property. Moreover, and most importantly, none of the decisions cited by plaintiff, including Corso, recognize an independent cause of action for loss of companionship. Rather, these cases provide a means for assessing the "intrinsic" value of the lost pet when the market value cannot be determined." The court explicitly held that there was no precedent to sustain an independent cause of action for loss of companionship.
In the recent case of Harabes v. Barkery, Inc., 791 A.2d 1142 (N.J.Super.L.,2001), held that there are practical reasons and public policy considerations that weigh against such claims. The court cited concerns about the sheer number of potential litigants who could bring forward such a cause of action. The court also expressed concern of the category of animals under which claims could be sustained: "Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion." Finally, the court expressed the concern of ensuring fairness of the financial burden placed upon a negligent defendant.
It is, ironically, this sense of companionship that often brings the greatest sense of loss to human owners. Despite the great importance we place upon pets in our society, their value as companions, or even family members, remains tentative in the legal system. The gradual abrogation of the "property" status of pets may one day reflect the true value of companion animals.
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