Summer, 2005
CLAIMS FOR
COMPANION ANIMALS
[Ref: Law of Damages, Para. 4.02 ]
Evaluating a claim for harm to a companion animal can pose many problems for a claims person. The primary difficulty is that animals are treated as property, and damage or loss to property is typically evaluated based on its market value. A companion animal is an animal that is kept by humans for companionship and enjoyment, rather than for economic reasons. Unlike livestock, companion animals often have no market value. In addition, owners of companion animals frequently develop a very close emotional bond with their pets. This article will look at the types of damages that are claimed as a result of harm done to a companion animal, and discuss whether any or all of these damages are recoverable in an action brought by the pet owner.
ANIMALS ARE PROPERTY
Various
groups have proposed that companion animals be elevated to a status above that
of property, but no state has yet adopted this view. While Rhode Island has
passed legislation classifying companion animal owners as guardians, the fact
remains that animals are personal property. A claim involving harm to an animal
is subject to the laws governing damage to or destruction of personal property.
A tortfeasor is required to compensate the plaintiff for the damages caused by
the tortfeasor’s wrongful act. In claims for damage to personal property,
recovery is usually based on economic loss. The measure of the owner’s economic
loss is the market value of the property. If a two-year-old TV set is
negligently destroyed by a third party, that party is responsible for damages
equal to the price for which that two-year-old TV could be sold. Applying this
analysis to the loss of an animal often results in no recovery for the owner
because there may be no market for that particular type and age of animal.
Sometimes the value is based on the cost of a new animal. This may be a nominal
amount.
Many courts have recognized that evaluating damages for companion animals on the
basis of market value is inappropriate. These courts recognize that a companion
animal is more than a mere item of personal property, with many owners
considering the animal a family member. These courts utilize a different method
to determine value, based on the value of the animal to its owner. This method
generally applies to any personal property that has no ascertainable market
value. Referred to as “special value,” this approach considers the qualities and
characteristics of the animal in determining damages. Numerous factors are
considered, including specialized training, rarity of the breed, breeding
potential, companionship value, and protective value. This method recognizes
that a companion animal’s value may exceed its market value. Damages are based
on the animal’s pecuniary value to the owner.
In Mitchell v. Heinrichs, 27 P3d 309 (2001), the Alaska Supreme Court
considered the measure of damages for the death of the plaintiff’s dog. After
the plaintiff conceded that the dog had no market value, the trial court
dismissed the claim for compensatory damages. On appeal, the state supreme court
noted that it is the value to the owner that is the proper measure of damages
when the destroyed property has no real market value, or when the value of the
property to the owner is greater than the market value. The court stated:
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... . Where, as here, there may not be any fair market value for an adult dog, the “value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce.” 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. Or the owner may seek to recover the original cost of the dog, including the purchase price, and, again, such investments as immunization, neutering, and training. Moreover, as some courts have recognized, it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies. 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. ... Mitchell’s concession that her adult dog had no resale value does not, however, prohibit her from recovering for her loss.
Mitchell involved the death of the animal, but what happens if the animal
is injured but lives, or lives for a period of time before succumbing to its
injury? The veterinary expense incurred by the owner in treating the injury
represents an economic loss. Should the owner be entitled to recover this
expense? In general, the cost of reasonable attempts to repair personal property
is a recoverable item of damage, even if the property is later deemed a total
loss. The focus is on what is reasonable. In dealing with an animal, one has to
realize that the property at issue is a living, breathing creature. It is
reasonable that the owner provide proper veterinary care to the animal. The
expense incurred in treating an injured companion animal has been recognized as
a recoverable item of damage, even when that expense exceeds the value of the
animal. If the animal dies, reasonable veterinary expenses should be recoverable
in addition to the animal’s market or special value.
In Hyland v. Borras, 719 A2d 662 (1998), a New Jersey Superior Court held
that the plaintiff was entitled to recover $2,500 in medical expenses incurred
in treating her ten-year-old dog after it was attacked by the defendant’s dog.
The defendant argued that the trial court erred in allowing the plaintiff to
recover her out-of-pocket loss, because the expense incurred was five times the
cost of a new dog. This argument was based on the rule that, when the repair
cost exceeds the replacement cost, the proper measure of damages is the
diminution in value of the property or its replacement cost. The superior court
found “the defendant’s approach to measuring damages in this case to be overly
mechanistic.” The court said:
In this case, the personal property is a household pet whose market value is nominal and whose “replacement cost” was $500, $2,000 less than the cost of restoring the dog to its initial condition. Most animals kept for companionship have no calculable market value beyond the subjective value of the animal to its owner, and that value arises purely as the result of their relationship and the length and strength of the owner’s attachment to the animal. In that sense then, a household pet is not like other fungible or disposable property, intended solely to be used and replaced after it has outlived its usefulness. ... It is purely a matter of “good sense” that defendants be required to “make good the injury done” as the result of their negligence by reimbursing plaintiff for the necessary and reasonable expenses she incurred to restore the dog to its condition before the attack.
Under the special value method, the claims person will need to consider the
breed of animal; the animal’s pedigree; the cost of a similar animal or the
price paid for the deceased animal; expenses incurred in training the animal;
veterinary expenses incurred, as a result of the injury and possibly for regular
care; whether the animal had any breeding potential; and whether the animal
provided any service for the owner. A value must be placed on these items, and
some of these values are subjective. If the jurisdiction recognizes market value
as the proper measure of damages, the adjuster’s job will be somewhat
simplified. However, note that for a working companion animal, such as a guide
dog, market value is likely to exceed the cost of buying a puppy of the same
breed. Unlike most personal property, the value of a companion animal can
increase with age.
EMOTIONAL DISTRESS, LOSS OF COMPANIONSHIP & PUNITIVE DAMAGES
Owners may suffer grief
over the loss of their companion animals. This grief has been likened by some to
the grief one suffers upon the loss of a family member. The level and duration
of grief varies, depending on the nature of the relationship with the animal.
Claims for emotional distress and loss of companionship are not uncommon in
cases involving harm to companion animals.
In these cases, loss of companionship is generally not recognized as a
recoverable item of damage. Some courts have compared companionship claims to
loss of consortium claims. If the jurisdiction limits a claim for loss of human
consortium to cases involving spouses or immediate family members, the courts
have no difficulty disallowing recovery for the owner’s loss of animal
companionship. Some states have looked to their wrongful death statute as a
basis for denying recovery. If the wrongful death statute does not allow for the
recovery of loss of consortium or companionship in a case involving the death of
a family member, these states also disallow recovery in cases involving the
death of a companion animal. As explained by the Kentucky Court of Appeals in
Ammon v. Welty, 113 SW3d 185 (2003):
Claims for emotional
distress due to loss of, or injury to, a companion animal may be premised on
either negligent or intentional infliction of emotional distress. In general,
claims for negligent infliction of emotional distress for the loss of a
companion animal have been unsuccessful. In many instances, the claim is invalid
because the jurisdiction does not recognize the right to recover emotional
distress damages for a personal property loss. A few states allow for such a
claim, but the claimant may have difficulty meeting the requirements for this
cause of action.
For example, a few states allow recovery only when the party claiming emotional
distress for a property loss was physically injured and the injury caused the
emotional distress. In most cases, the pet owner has not suffered physical
injury as a result of the tortfeasor’s conduct. In Holbrook v. Stansell,
562 SE2d 731 (Ga. App. 2002), the plaintiff sued for emotional distress she
suffered as a result of witnessing a dog attack her grandson’s foal. As the
plaintiff was running to the field where the attack was taking place, she was
injured while climbing a gate. The court found that the plaintiff had no right
of recovery because the plaintiff was not touched or injured by the dog in any
way, and the physical injury the plaintiff suffered in climbing the gate bore no
relationship to her emotional distress from witnessing the attack.
In many jurisdictions, a claim for negligent infliction of emotional distress
requires the claimant witness the tortious behavior, fear for the safety of the
victim, and have a close familial relationship with the victim. Since an animal
is not legally a family member, the companion animal owner’s claim is invalid
under this rule. In Rabideau v. City of Racine, 627 NW2d 795 (2001), the
Wisconsin Supreme Court denied recovery in a case where the plaintiff witnessed
a neighbor shoot her dog. While the court noted that people form important
emotional bonds with those outside of their immediate family, including animals,
bystander emotional distress damages are limited to those who witness the severe
injury or death of a family member, or arrive at the scene soon thereafter. The
court also noted that public policy concerns generally prevent recovery of
emotional distress damages for loss of personal property. While the court voiced
its discomfort with the “law’s cold characterization of a dog ... as mere
property” and stated that the term property “inadequately and inaccurately
describes the relationship between a human and a dog,” the court was bound by
established precedent in resolving the case.
The Hawaii Supreme Court in Campbell v. Animal Quarantine Station, 632
P2d 1066 (1981), held that recovery is allowed for serious mental distress
suffered as a result of the negligent destruction of the plaintiff’s property.
There is no requirement that the plaintiff witness the tortious event in order
to be entitled to recover damages. In Campbell, the owners of a dog that died of
heat exposure in a van transporting it from a quarantine facility were awarded
$1,000, even though they did not witness the death.
Noneconomic damages are recoverable by statute in Tennessee (Tenn. Code Ann. §
44-17-403). Noneconomic damages up to $5,000 are recoverable under the statute
if a “person’s pet [dog or cat] is killed or sustains injuries which result in
death caused by the unlawful and intentional, or negligent act of another or the
animal of another.” The pet must be on the owner’s or caretaker’s property, or
under the owner’s or caretaker’s control and supervision. Exceptions to this
liability include not-for-profits, governmental entities, and licensed
veterinarians.
Damages for intentional infliction of emotional distress are available in claims
arising out of loss or damage to personal property, including companion animals,
in many jurisdictions. Also called the tort of outrage, intentional infliction
of emotional distress requires that the plaintiff prove the tortfeasor’s conduct
was intentional or reckless, the conduct was intolerable and offensive to
generally accepted standards of decency, there was a causal connection between
the conduct and the emotional distress, and the distress was severe. A claim for
intentional infliction of emotional distress may fail if the subject of the
wrongful conduct was the animal and not the owner. However, if the court’s focus
is on the nature of the conduct, not the subject of the conduct, recovery is
possible.
In Burgess v. Taylor, 44 SW3d 806 (2001), the Kentucky Court of Appeals
upheld an intentional infliction of emotional distress award in a claim
involving the death of two horses. Taylor had owned the horses for over ten
years and loved them like children. When Taylor was no longer able to care for
them, the Burgesses agreed to care for the horses on their farm. Taylor did not
give up her ownership of the horses. A week after the horses were moved, Taylor
contacted the Burgesses to arrange a visit to their farm. Mrs. Burgess lied
about the whereabouts of the horses, saying she gave them to an unknown man she
met on a trail ride. Taylor became increasingly distraught and concerned over
the welfare of her horses. She persisted in contacting the Burgesses, who later
claimed to have given the horses to a friend. Taylor contacted this person, who
gave her a false address, which she visited only to find that her horses were
not there. Ultimately it was determined that the Burgesses had sold Taylor’s
horses to a known slaughter-buyer within a few days of the horses’ arrival at
their farm. The horses were then sold to a slaughterhouse and killed.
Looking to the elements of the cause of action, the court found that the
Burgesses’ conduct was reckless in that they knew or should have known it would
cause emotional distress to Taylor. The Burgesses admitted to having no
intentions of keeping the horses and to having their friend lie in order to hide
the truth from Taylor. The court found that the Burgesses’ conduct was clearly
offensive to general standards of decency, and thus outrageous. The court noted
the compelling evidence regarding the love Taylor had for her horses and
characterized the torment the Burgesses put her through as nothing less than
“heartless, flagrant, and outrageous.” The court found that there was a causal
relationship between the Burgesses’ conduct and Taylor’s emotional distress. The
court also found that Taylor’s distress was severe. The Burgesses argued that
emotional distress damages are not recoverable in a claim for the death of an
animal. The court disagreed, stating that an action for intentional infliction
of emotional distress could be brought in addition to a claim for the death of
an animal. The focus of the emotional distress claim is on the offender’s
conduct and not the subject of that conduct, according to the court.
The Burgess court also upheld an award of punitive damages. Punitive
damages are awarded as punishment and to deter a person from repeating the
offensive conduct. The conduct must be extreme for punitive damages to be
awarded. The award was supported by the facts. The court did not agree with the
Burgesses’ argument that the award represented a double recovery for Taylor,
because punitive damages are not meant to compensate the victim for his or her
loss.
Similarly, in Brown v. Muhlenberg Township, 269 F3d 205 (2001), the
United States Court of Appeals for the Third Circuit held that in shooting the
plaintiff’s pet dog, the defendant police officer either intended to cause the
plaintiff severe emotional distress or acted with knowledge that such distress
would be virtually certain. The plaintiff observed the police officer drawing
his weapon from about fifty feet away and shouted to the officer not to shoot
her dog. A disinterested witness testified that the dog was not aggressive or
threatening. The officer nevertheless shot the dog five times, killing it.
Applying Pennsylvania law, the court found that the officer’s actions, as
extreme and outrageous, met the test for intent to cause severe emotional
distress.
In Kautzman v. McDonald, 621 NW2d 871 (2001), the Supreme Court of North
Dakota dismissed a claim for intentional infliction of emotional distress
because the elements of the cause of action were not satisfied. The Kautzmans’
five dogs had escaped from their fenced yard and were roaming free. McDonald, a
deputy sheriff, responded to a call from a homeowner stating that the dogs were
circling her house. While awaiting the arrival of animal control, McDonald
followed the dogs. One of the dogs turned and ran towards him, followed by the
other dogs. Fearing an attack, McDonald shot the dog. The four other dogs then
turned and went off in another direction. Other law enforcement officers arrived
and the four dogs were shot. The court found that the officers’ actions could
not be considered extreme or outrageous. The court further found that the
officers had no idea the Kautzmans owned the dogs and could not, therefore, have
intended the Kautzmans any harm. In contrast to Burgess, this court based its
decision on the subject of the conduct, in addition to the nature of the
conduct.
Claims for an animal’s pain and suffering present a proof problem. In
Oberschlake v. Veterinary Associates Animal Hospital, 785 NE2d 811 (Ohio
2003), the plaintiffs left their dog at the vet’s office to have its teeth
cleaned. Rather than just clean the dog’s teeth, the vet performed unauthorized
surgery to spay the plaintiffs’ dog, which was already spayed. Among the damages
claimed were damages for the dog’s suffering and emotional distress. The court
said, “a dog cannot recover for emotional distress – or indeed for any other
direct claims of which we are aware. We recognize that animals can and do suffer
pain or distress, but the evidentiary problems with such issues are obvious.”
CONCLUSION
What a companion animal owner can recover, when the animal is killed or injured, will depend on many factors. The owner should recover for the value of the animal, based on either the market value or the special value of the animal. If special value is used, although loss of companionship per se is not recoverable, the value of the companionship provided by the animal may be factored into a determination of the animal’s value. Reasonable veterinary expenses incurred in treating the animal should also be recovered. There should be no recovery for the animal’s pain and suffering. The success of the owner’s claim for emotional distress and punitive damages will depend on the facts of the case. However, recovery is typically not allowed for negligent infliction of emotional distress. As with all claims, awareness of your jurisdiction’s rules is a necessity. Legislation has been proposed in many states regarding noneconomic damages in companion animal cases, thus both case law and statutory law must be considered in evaluating this type of claim.
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earned their SCLA awards in the months of March, April and May 2005.
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