This unpublished Washington case stems from an attack on plaintiff's dog by a neighbor's dog. Plaintiff sued for damages, alleging negligence and nuisance. The trial court ruled on partial summary judgment that the plaintiff's damages were limited, as a matter of law, to the dog's fair market value. The plaintiff argued that she was entitled to damages based on the dog's intrinsic value (i.e., utility and service and not sentimental attachment) and her emotional distress. On appeal, this court held that since the plaintiff failed to carry her burden of showing that her dog had no fair market value, the trial court properly limited damages to that value. Further, because the plaintiff's nuisance claims were grounded in negligence, she was not entitled to damages beyond those awarded for her negligence claim.
NOTE: UNPUBLISHED OPINION, SEE RCWA 2.06.040
The trial court properly limited the dog owner's damages to the fair market value of the dog. The owner's dog was killed in her yard by another dog. The owner brought suit alleging negligence and nuisance. The trial court ruled that her damages were limited to the dog's fair market value. The owner asserted that she was entitled to damages based on the dog's intrinsic value and her emotional distress. The owner was unable to show that the dog had no fair market value.
Appeal from King County Superior Court; Honorable Steven C. Gonzalez, J.
UNPUBLISHED OPINION
SCHINDLER, C.J.
*1 Kellie Brinton's dog died after it was attacked in her yard by a neighbor's dog. Brinton sued for damages, alleging negligence and nuisance. The trial court ruled on partial summary judgment that Brinton's damages were limited, as a matter of law, to the dog's fair market value. Brinton appeals, arguing that she was entitled to damages based on the dog's intrinsic value and her emotional distress. Because Brinton failed to carry her burden of showing that her dog had no fair market value, the trial court properly limited damages to that value. And because Brinton's nuisance claims were grounded in negligence, she was not entitled to damages beyond those awarded for her negligence claim. Accordingly, we affirm.
FACTS
On January 13, 2006, a dog licensed to Christopher and Michelle Codoni entered Kellie Brinton's fenced yard and attacked her ten-year-old Rottweiler, Bear. Due to the severity of the injuries, Brinton had Bear euthanized.
On January 20, 2006, Brinton called King County Animal Control (KCAC) because the Codonis' dog was on her property again. Animal Control officers impounded the dog after the dog charged towards them with its teeth bared.
On February 9, 2006, KCAC issued a notice of violation and order of removal of the dog to the Codonis. The order recited violations of local and state laws relating to dangerous dogs, including King County Code (KCC) 11.04.230(H) as adopted by the City of SeaTac,FN1 and RCW 16.08.070(1).FN2 The order required the Codonis to remove their dog from King County within 48 hours.
FN1. King County Code (KCC) Section 11.04.230(H) defines “nuisances”, as including “[a]ny animal that has exhibited vicious propensities and constitutes a danger to the safety of persons or property off the animal's premises.” The SeaTac Municipal Code (STMC) contains provisions regulating dangerous dogs. STMC 6.05.120 applies to “dangerous dog[s] on premises” and provides in pertinent part: “The owner of a dangerous dog shall not permit such dog to go unconfined upon the premises of such owner.” STMC 6.05.130, which applies to “dangerous dog[s] off premises,” provides in part: “The owner of a dangerous dog shall not permit such dog to go beyond the premises of such person unless such dog is securely leashed and muzzled or otherwise securely restrained and muzzled.”
FN2. RCW 16.08.070(1) defines “Potentially dangerous dog” and RCW 16.08.090 prohibits an owner from allowing the dog “to be outside the proper enclosure unless the dog is muzzled and restrained ... and under physical restraint of a responsible person.”
On September 19, 2006, Brinton sued the Codonis and three other “co-owner-keeper-harborer-guardians” of the Codonis' dog for damages resulting from Bear's death. The thrust of the amended complaint was that the Codonis negligently failed to restrain their dog. The complaint asserted claims for negligence, violation of the public and private nuisance statutes, violation of ordinances relating to dangerous dogs, and negligent infliction of emotional distress. Brinton sought damages for the loss of Bear's intrinsic value and utility, as well as her emotional distress and loss of enjoyment of life.
On October 25, 2006, the superior court entered an order of default. The court later set aside the default against three of the defendants, but not the Codonis. The nondefaulting defendants then moved for partial summary judgment to limit Brinton's damages to her dog's fair market value. In response, Brinton argued that she was entitled to Bear's “intrinsic” value because the dog had no fair market value as a matter of law or fact. In support, Brinton submitted a declaration describing her relationship with the dog, Bear's training and certification as a therapy dog, and the effect of the dog's death on her life.
On March 22, 2007, the court granted partial summary judgment limiting Brinton's damages to the dog's fair market value. In May, 2007, the court entered an agreed order to dismiss the lawsuit against the nondefaulting defendants with prejudice. One week later, the court entered a default judgment against the Codonis together with findings of fact and conclusions of law prepared by Brinton's counsel.
*2 The judgment recited that the Codonis' dog was a “dangerous dog” under the SeaTac Municipal Code and that the Codonis violated ordinances requiring owners to secure dangerous dogs.FN3 The judgment further recited that the Codonis were negligent and violated RCW 16.08.010 (“Liability for injury to stock by dogs.”),FN4 RCW 7.48.150 (private nuisance), and RCW 7.48.210 (public nuisance).
FN3. See KCC 11.04.230(H), STMC 6.05.120, STMC 6.05.130.
FN4. RCW 16.08.010 provides:
Liability for injury to stock by dogs. The owner or keeper of any dog shall be liable to the owner of any animal killed or injured by such dog for the amount of damages sustained and costs of collection, to be recovered in a civil action.
Consistent with the court's previous partial summary judgment decision, the judgment limited Brinton's damages to her dog's fair market value. The judgment summary included a space for Bear's fair market value together with amounts for the veterinary bills, statutory attorney fees, costs, and interest. Based on the pleadings submitted in the partial summary judgment, including Brinton's declaration, the court found that “Bear had a fair market value of $5,000 ... based on his training, age, papered status, & relevant market community.”
DECISION
Brinton first challenges the trial court's partial summary judgment decision to limit her damages to Bear's fair market value. Brinton contends that she was entitled to damages for Bear's intrinsic value and her emotional distress. We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Communications, Inc. v. Seattle Times Co., 154 Wash.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c); Hearst, 154 Wash.2d at 501, 115 P.3d 262.
The appropriate measure of damages for personal property is a question of law, reviewed de novo. Sherman v. Kissinger, 146 Wash.App. 855, 873, 195 P.3d 539 (2008). The presumptive measure of damages for the negligent destruction of personal property, including a dog, is the fair market value of the property. Sherman, 146 Wn.App. 870 (citing McCurdy v. Union Pac. R. Co. ., 68 Wash.2d 457, 467, 413 P.2d 617 (1966) and Mansour v. King County, 131 Wash.App. 255, 267, 128 P.3d 1241 (2006)). However, if the plaintiff demonstrates that the dog has no market value, then the measure of damages is the cost to replace or reproduce the dog. Sherman, 146 Wash.App. at 871, 195 P.3d 539. If the dog cannot be reproduced or replaced, the dog's value to the owner, also referred to as “intrinsic” value, may be considered in determining damages. Id .FN5
FN5. Intrinsic value does not include “sentimental value.” Sherman, 146 Wash.App. at 871-872, 195 P.3d 539 (quoting Mieske v. Bartell Drug Co., 92 Wash.2d 40, 45, 593 P.2d 1308 (1979). As we held in Sherman, in determining intrinsic value the finder of fact must consider objective evidence of the dog's utility and services and not the value the owner attributes to the dog's companionship or other sentimental value. Sherman, 146 Wash.App. at 871-72, 195 P.3d 539.
Citing Kimball v. Betts, 99 Wash. 348, 351, 169 P. 849 (1913) and Herberg v. Swartz, 89 Wash.2d 916, 578 P.2d 17 (1978), Brinton argues that as a matter of law, Bear had no fair market value. In Kimball, the court noted that the market for used household goods is generally inadequate to compensate an owner for the conversion of such goods. The court held that “[w]here household goods, kept for use and not for sale, have been wrongfully converted, it is not necessary to allege and prove that such goods have no market value as a condition precedent to the right to introduce proof of actual value.” Kimball, 99 Wash. at 351, 169 P. 849. The court reiterated these principles in Herberg, holding that the plaintiffs in that case were not limited to the fair market value of personal effects destroyed in a hotel fire. Herberg, 89 Wash.2d at 930-32, 578 P.2d 17. Applying “the Kimball rule,” the court held the proper measure of damages was the reasonable value of the property to the owner, excluding “any sentimental or fanciful value .” Herberg, 89 Wash.2d at 930-32, 578 P.2d 17 (quoting Kimball, 99 Wash. at 350, 169 P. 849).
*3 The Kimball rule, however, is limited to household goods and personal effects such as furniture and apparel. Herberg, 89 Wash.2d at 930, 578 P.2d 17; Kimball, 99 Wash. at 350-51, 169 P. 849. No case has extended this rule to pets. And contrary to Brinton's assertions, pets differ in significant respects from household goods. While household goods generally depreciate over time and tend to have little or no value in secondhand markets,FN6 a pet may actually increase in value over time depending on its pedigree, training, FN7 awards, and other factors.FN8 Considering these distinctions and the circumscribed holdings in Kimball and Herberg, we decline to apply the Kimball rule here and conclude that as a matter of law, the trial court properly limited Brinton's damages to Bear's fair market value.
FN6. See Kimball, 99 Wash. at 350-52, 169 P. 849; Herberg, 89 Wash.2d at 930-32, 578 P.2d 17.
FN7. We note that the fair market value of the dog in this case was based in part on the dog's specialized training.
FN8. Sherman v. Kissinger, 146 Wash.App. at 873, 195 P.3d 539 (training is a factor in determining the fair market value of a dog); Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285, 287 (1980)(training increases the value of a dog); U.S. v. Hatahley, 257 F.2d 920, 923 (10th Cir.1958)(development and training increases market value); McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 644 N.E.2d 750 (Ohio 1994) (a dogs training and accomplishments affect its value on the open market).
Brinton also contends that Bear had no fair market value. But it was Brinton's burden to “produce evidence” showing that Bear had no market value and could not be replaced. Sherman, 146 Wash.App. at 874, 195 P.3d 539. Although she alleged in her complaint and memoranda below that Bear had no market value, Brinton submitted no evidence to support that allegation.
Next, Brinton argues that even if fair market value was the proper measure of damage for her negligence claim, it was not the proper measure of damage for her nuisance claims. Brinton contends damages for nuisance may include compensation for emotional distress or mental anguish, and loss of enjoyment of life. But such damages are generally available only for intentional or malicious interference with property interests.FN9 In addition, “it is well established that a pet owner has no right to emotional distress damages or damages for loss of human-animal bond based on the negligent death or injury to a pet.” Sherman, 146 Wash.App. at 873, 195 P.3d 539. Because Brinton's nuisance claims are based on negligence, as opposed to intentional or malicious conduct, emotional distress damages are not available for those claims.
FN9. Birchler v. Castello Land Co., 133 Wash.2d 106, 115-17, 942 P.2d 968 (1997); Pickford v. Maison, 124 Wash.App. 257, 260, 98 P.3d 1232 (2004); Womack v. Von Rardon, 133 Wash.App. at 263, 135 P.3d 542 (malicious injury to pet).
Furthermore, as the Codonis point out, “ ‘a negligence claim presented in the garb of nuisance,’ need not be considered apart from the negligence claim.” Atherton Condominium Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wash.2d 506, 527, 799 P.2d 250 (1990) (quoting Hostetler v. Ward, 41 Wash.App. 343, 360, 704 P.2d 1193 (1985)). “In those situations where the alleged nuisance is the result of the defendant's alleged negligent conduct, rules of negligence are applied.” Atherton, 115 Wash.2d at 527, 799 P.2d 250. Here, the gravamen of Brinton's nuisance claims is the attack on her dog. FN10 Because that attack was “the result of the defendant's ... negligent conduct” and is thus based on the same set of facts underlying Brinton's negligence claim, she may not seek separate damages for her nuisance claims. Atherton, 115 Wash.2d at 527, 799 P.2d 250.FN11
FN10. On appeal, Brinton summarizes her nuisance claims as “interference with the quiet use and enjoyment of Ms. Brinton's realty, personality, and life as a result of [the Codonis' dog's] menacing assault.” Similarly, in her motion for partial summary judgment below, Brinton stated that “[t]he allegations raised [in the complaint] are identical to the matter resolved by the [County]-viz., the killing of Bear by [the Codoni's dog].” In her response to the defendants' motion for partial summary judgment, she argued: “Defendants tortiously fail[ed] to control their dog, who trespasses on Ms. Brinton's fenced realty and inflicts lethal injuries to her beloved dog, without provocation.... Does the same tortious conduct state a claim for statutory public and/or private nuisance, and give rise to emotional distress damages? Yes.”
FN11. See also Kaech v. Lewis County Public Utility Dist. No. 1, 106 Wash.App. 260, 282, 23 P.3d 529, (2001)(plaintiff “alleged that stray voltage escaped from faulty insulators and damaged his dairy herd. Thus, the same set of facts supports claims of negligence, nuisance, and trespass.”); Sourakli v. Kyriakos, Inc. 144 Wash.App. 501, 515, 182 P.3d 985 (2008) (“Because Sourakli's nuisance theory ... rests on the same facts as his negligence theory ..., it does not provide an alternative basis ... for damages.”); Lewis v. Krussel, 101 Wash.App. 178, 183, 2 P.3d 486, 489 (2000)(“Lewis and Teitzel ground their nuisance claim on the Krussels' inaction with regard to the fallen trees. In other words, the nuisance is the result of negligence.... Accordingly, we do not consider the nuisance claim apart from the negligence claim.”).
Brinton argues, however, that the rule applied in Atherton and its progeny does not apply here. Pointing to the common law categories of nuisance described by Division Two in Hostetler, 41 Wash.App. 343, 704 P.2d 1193, Brinton contends the type of nuisance in this case is exempt from the Atherton rule. We disagree. Although the Atherton court cited Hostetler for the proposition that a nuisance claim will not be considered apart from a negligence claim based on the same negligent conduct, it did not mention, let alone adopt, Hostetler 's categories of common law nuisance or the theory Brinton advances here. Moreover, the Washington Supreme Court has never applied the concept of nuisance per se in circumstances similar to those presented in this case.FN12 We therefore decline to create an exception to Atherton and apply its holding here.
FN12. Grundy v. Thurston County, 155 Wash.2d 1, 12 n. 1, 117 P.3d 1089 (2005)(Sanders, J. concurring)(“[I]n every case in which the term ‘nuisance per se’ has been used by this court, the term has been applied to the operation of a business.”).
*4 Affirmed.
WE CONCUR: LINDA LAU and ANNE ELLINGTON, JJ.