Full Title Name:  Death to Poochy: A Comparison of Historical and Modern Frustrations Faced by Owners of Injured or Killed Pet Dogs

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Jason R. Scott Place of Publication:  University of Missouri-Kansas City, School of Law Publish Year:  2006 Primary Citation:  75 UMKC L. Rev. 569 (Winter, 2006)

This article explores the various methods courts have used to determine value when assessing damages in pet injury or death cases. In doing so, it focuses on the conflicts that exist between opinions of older courts and more modern courts in determining damages, and how these conflicts have highlighted the transition of a dog's role in society. Finally, the article discusses solutions to these problems, including exploring exemplary statutes in Illinois and Kentucky, along with other solutions that would significantly reduce the stress faced by pet owners and courts when placed in these positions.

UMKC Law Review
Winter, 2006



Jason R. Scott [FNa1]

Copyright (c) 2006 Curators of the University of Missouri; Jason R. Scott (reprinted with permission)




Suppose on a beautiful afternoon in May, your best friend, in his coy and clever way, hints that he would love to share this time with you by taking a long and satisfying walk. You are thinking, “What a magnificent idea,” as you step outside into the refreshing spring air, faintly tinted with a spongy sweetness hinting at a pleasant summer ahead. The two of you stroll along in silence (after all, great friends need not spoil moments like these with words) feeling content with the company of one another. After such a long and harried week, its times like these that make life bearable. But, this tranquility is short-lived. Around the bend come the screeching tires of a careless motorist who has barely a thread of control over his powerful new H3. The split second of inaction caused by the startling sound proves dooming as you are barely able to avoid the unforgiving grill of the hulking beast and your friend becomes a victim of the oversized, off-road, front left tire. The moment climaxes in a screaming yelp of pain that has the unbearable effect of rending your heart in two. At the moment your mind's sole focus is on the condition of your maimed friend (where it should be) and not on the legal (or illegal) courses of action that are available to you. But sooner, rather than later, these questions will become a focused and possibly daunting reality.
Unfortunately, this is an all too common occurrence for many people and it leaves them in a precarious position. No, your best friend is not your old playground pal, high school honey, college chum, or even your loving spouse (although these are excellent best friends). Instead, your best friend is your dog. Going by Fido, Rover, Spot, Patches, Gonzo, or Red, people's dogs provide them with an unconditional love and loyalty that many are hard-pressed to find in human companions. Whether it be for seeing, snuggling, walking, running, sniffing, or protecting, dogs have served myriad useful purposes in playing their role as “man's best friend.” Unfortunately the legal view of dogs, especially dogs as pets, has been slow to change. In the majority of jurisdictions in the United States dogs are still considered merely the property of their owners. [FN1] As such, owners are limited in their courses of action and recovery should their property/pet/best friend be injured or even killed. [FN2]

*570 With the development of a more urbanized society, dogs have taken their role as a domesticated house animal in stride. In the United States there are just under forty-five million dog owners, who own about sixty-three million dogs. [FN3] Eighty-three percent of these owners say the main reason that they got their dog was for companionship. [FN4] Further, greater than half of those who own a dog say they “are more attached to their pet than to at least one other human being.” [FN5] These statistics point to a shift from the agrarian purpose of a dog-to herd sheep, fend off predators, and assist with hunting-to a more urban purpose-to provide companionship. Even though a few dogs may still be used for economic or hunting purposes, smart money bets that a significant portion of people will still cry at the end of the film that immortalized the traditional role of the dog, Old Yeller. Such tears can only further the notion that dogs have slowly merged into the family or household environment, occupying a space and a role that is stronger, if less defined, than when they served solely economic purposes.
Families completely adverse to dogs will often radically change their opinions after owning one for a few short weeks. This dog, a formerly unwelcome stranger, will grow up within that family becoming such a part of it that family members may weep at its death, even going so far as to bury it in the backyard. If the dog goes missing, the family will enlist the aid of neighbors and friends to search for it. They will post photocopied pictures of the dog on telephone poles along with their phone numbers and promises of some monetary reward.
But this paper is not about anthropomorphizing dogs but rather the awkward position dog owners find themselves in when faced with legal action. Dogs are not humans. However, dogs are more than H3s, TVs, iPods, and HeMan action figures. A dog is not purchased and then left like an iPod in a gym bag; it is not placed, like a flat screen, in a dusty armoire; nor do most household dogs spend the rest of their lives in a garage next to the H3. Instead, a dog requires nurturing, affection, proper care, and grooming to survive. The initial investment in a dog is inconsequential compared with the amount of time, money, and energy an owner will spend for it over its lifetime. The investment is greater than any iPod could demand and is on a scale similar (although a much smaller and diminished scale) to that of raising a child.
The legal system has been slow to react to the new role dogs play in society, and to the legal dilemmas that are created when a pet dog is injured or killed by a human being other than its owner. As a result, owner and pet find themselves trying a variety of different options in the hopes that one of those options will offer the recovery sought and needed. These include claims of Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and recovery of emotional damages (loss of companionship and other intangibles) for loss and damage to property. Following the history of law on *571 this subject, the astute researcher will find that these actions represent only a fraction of the methods employed by activist animal owners seeking reform. [FN6] More recently, legislatures have come to be involved in dog injury and death cases. Legislative-guided and mandated change is probably the best method, but, it is also the most difficult to achieve.
Part II of this paper lays out the various methods courts have used to determine value when assessing damages in pet injury or death cases. This includes a discussion of punitive and compensatory damages and their role in the recovery process. It also focuses on the conflicts that exist between opinions of older courts and modern courts and how these conflicts have highlighted the transition of a dog's role in society. Part III of this paper focuses on the typical courses of action a pet owner may take when faced with an injured or killed pet. Part IV highlights public policy concerns raised by courts and legal scholars with regard to the expansion of current pet law. Finally, Part V discusses solutions to these problems, including exploring exemplary statutes in Illinois and Kentucky, along with other solutions that would significantly reduce the stress faced by pet owners and courts when placed in these positions.


II. Recovery and Calculation of Damages

A. How Have Compensatory and Punitive Damages Shaped Recovery in Pet Injury Cases?


No matter what claim an owner brings to seek damages for the injury or destruction of his property, he can generally recover compensatory damages. [FN7] If the offending act is extremely heinous, judges and juries may decide that the pet owner is entitled to recover punitive damages as well. However, sometimes courts are not clear in their damages awards, and the line between punitive and compensatory damages becomes muddled. [FN8]
Compensatory damages are defined as “damages awarded to a person as compensation, indemnity or restitution for harm sustained by [that person].” [FN9] In situations of pure property loss, compensatory damages are awarded to place a person “in a position substantially equivalent in a pecuniary way” to the position that person was in before the tort was committed. [FN10]
The Restatement's definition of compensatory damages is surprisingly similar to the way many courts approach the valuation and calculation of *572 damages in pet injury cases. Generally, courts are simply looking to restore the pet owner to his original position prior to the injury to his dog. [FN11] As a New Jersey Appellate Court in the case of Hyland v. Borras stated, “It is purely a matter of ‘good sense’ that defendant's be required to ‘make good the injury done’ as a 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.” [FN12] Such a statement almost mimics the wording of the Restatement regarding compensatory damages. [FN13] Many courts, however, find it difficult in their determinations to lay out the reasoning behind their awards. The Borras court, later in the same opinion, giving the reasoning behind the damages award, stated, “Imposing these economic losses on defendants not only has the salutary effect of making plaintiff whole, but it deters an owner of an aggressive dog from negligently allowing it to run loose.” [FN14] The latter half of this statement, while logical, is not a reason behind the awarding of compensatory damages. Instead, it sounds very similar to the reasoning behind the awarding of punitive damages. [FN15]
The Restatement (Second) of Torts describes punitive damages as follows:

[p]unitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future . . . . Punitive damages may be awarded for conduct that is outrageous, because the defendant's evil motive or his reckless indifference to the rights of others. [FN16]
The two purposes of punitive damages are to punish and deter. [FN17] Such damages are not awarded for mere negligence and mistake. [FN18] And, “an award of nominal damages . . . is enough to support a further award of punitive damages.” [FN19] This last part is especially important for dog owners because an award of damages for the value of an injured or killed mutt (not a purebred or award-winning canine) might only amount to nominal damages (i.e. the cost of the dog, or whatever market value the dog held).
In the 1893 case of Hopen v. Walker, the Supreme Court of Michigan found that a dog owner was entitled to punitive damages when a dog was shot while walking to take a drink of water out of a neighbor's pond. [FN20] The defendant claimed to be merely protecting his property from the trespass of the dog; *573 however, the jury found the killing to be “willful and malicious” and held that the dog owner, “in addition to actual damages, was entitled to recover exemplary damages.” [FN21]
Courts in modern times are also willing to allow punitive damages for the death or injury of a dog, as long as the facts of the case so warrant. [FN22] But as the Restatement points out, in cases where compensatory damages are meant to compensate for mental distress, there exists no clear line of separation between damages for punishment and deterrence and damages for compensation. [FN23] This is best seen in La Porte v. Associated Independents, Inc., a case decided by the Supreme Court of Florida. [FN24] A woman had her miniature dachshund, Heidi, tied up outside when the garbage truck came by to collect the trash. [FN25] Startled, Heidi began barking at the trash collectors, and in response one of the collectors hurled an empty metal trash can at the dog. [FN26] Hearing her dog's yelps of pain, the owner went outside to find her pet injured, at which time the collector laughed, hopped on his truck and left. [FN27] The dog later died from the injuries. [FN28] A jury awarded the woman $2000 compensatory damages and $1000 punitive damages. [FN29] The defendant company appealed, and the Supreme Court of Florida found that “there [is] no prohibition of punitive damages . . . relative to awarding compensation for mental pain. . . .” [FN30] In a bold statement, the court continued, “we feel that the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover.” [FN31]
Between the two cases-Michigan in 1893 and Florida in 1964-there exists an interesting shift in the understanding of the role of the dog in each case. In 1890's rural Michigan, it is unlikely that a family kept a Gordon Setter (the dog in the case) around merely for companionship. While companionship may have been one of the dog's roles, it is more likely that the dog's main role was that of a hunting dog. [FN32] Gordon Setters, a part of the Irish and English Setter families, are generally raised as “gun dogs” or “bird dogs.” [FN33] These dogs are *574 used to assist hunters in flushing out and retrieving game. [FN34] Contrast this with the role of Heidi; from La Porte. [FN35] She was a miniature dachshund, the much smaller version of a breed that was used to assist in hunting badgers. [FN36] However, it seems highly unlikely that Heidi's owner and the Supreme Court of Florida viewed this as one of Heidi's purposes. [FN37] Instead, it appears the courts' differing views of dogs highlights a shift in the legal understanding of dogs as pets (and property) that, in turn, reflects a societal shift of that same understanding. This shift is best reflected by the different valuation methods of dogs courts have used.


B. How Have Courts' Valuations of Dogs as Pets Changed and What Does This Mean for the Modern Day Dog Owner?


The greatest hurdle in dog injury or death cases usually involves disputes between the owner and the offending party over the correct valuation of the pet in question. The owner wishes to include the hundreds of hours of training and care, companionship, walks, nights spent at the foot of the bed, and years living with one another in the valuation along with the pet's market value, its exchange value, its purchase price and other traditional value measures. The defendant, however, did not live with the dog, may not even care for dogs, and does not want to be overly punished for a simple mistake or negligence. Valid arguments presented from both sides require the trier of fact to seek balance regarding the interests of both parties and the current applicable law. Unfortunately, the outcomes are anything but consistent.
The Restatement (Second) of Torts defines value as “exchange value.” [FN38] The exchange value is “the amount of money for which the subject matter could be exchanged or procured if there is a market continually resorted to by traders, or if no market exists, the amount that could be obtained in the usual course of finding a purchaser or hirer of similar property.” [FN39]
While this might be a simple and logical way of valuing damages for lost or destroyed property, it offers dog owners very little satisfaction. A court relying on the Restatement for guidance would be hard-pressed to find a market for a ten-year-old Yorkshire Terrier (“Yorkie”) with a bad left hip and the onset of glaucoma in its right eye.
To accommodate the many varied aspects of personalty that have no real market value (for lack of a market), the Restatement uses the phrase “value to the owner.” [FN40] It states, “The phrase ‘value to the owner’ denotes the existence of factors apart from those entering into exchange value that cause the article to be *575 more desirable to the owner than to others.” [FN41] In cases where a family portrait is destroyed, or a picture album is lost, or a pet dog is negligently injured or killed, the Restatement recognizes that it would be “unjust to limit the damages for destroying or harming the articles to the exchange value.” [FN42] This might seem like a godsend for the upset pet owner, but this “peculiar value to the owner” is limited in that “if the [injured or destroyed] thing is replaceable, the damages for its loss are limited to replacement value.” [FN43] So, if your ailing Yorkie is badly injured or even killed, the most you could recover under the Restatement would be the original cost, or the modern day equivalent for replacement cost.
What happens if the court decides that the destroyed pet cannot be replaced because the dog was a mutt given away by an animal shelter? The Restatement again tries to handle this situation stating that “the owner will be compensated for [the dog's] special value to him, as evidenced by the original cost, and the quality and condition at the time of the loss.” [FN44] But this answer hardly allows any relief, as the original cost of the dog was free, and its quality at the time of the loss could neither augment nor diminish the original price of nil.
A small amount of relief does come, however, from the Restatement's handling of damaged property. The award for damages not equaling the total destruction value is “the difference between the value of the chattel before the harm and the value after the harm, or . . . the reasonable cost of repair or restoration.” [FN45] This may seem as limiting as the damages for destruction laid out above, but the Restatement goes on to state, “If, however, the chattel has peculiar value to the owner, as when [an object] having substantially no exchange value has been harmed . . ., it may be reasonable to make repairs at an expense greater than the cost of another chattel.” [FN46] Some courts have followed this reasoning, finding veterinary expenses as reasonable damages even when they are greater than the original cost or replacement value of the dog.
Perhaps the most frustrating aspect of the Restatement's damage valuation for those things without a market value is the denial of damages based on sentimental value. [FN47] Outside of a situation where a person is deprived of essential articles of clothing, the Restatement flatly says that “[c]ompensatory damages are not given for emotional distress caused merely by the loss of the thing.” [FN48] However, the Restatement is, fortunately, not the end all be all of the tort world. Many courts have used the Restatement as a guide in determining what and how to award, but they are not bound to follow its rules. Commenting on how to make a value determination for an injured dog, the Kansas Appellate *576 Court stated, “[T]he answer rests in good sense rather than in a mechanical application of a single formula.” [FN49]
Judges and juries are required to determine the proper valuation of a dog relying on a number of determinative factors, not the least of which is their own common sense. The market value of a cow held as livestock is much easier to determine than the market value of an injured pet dog. Dogs are physically unable to serve the same economic purposes as a cow. Cows can be bought or sold based on their abilities to give milk, grow large and produce beef, or even produce manure for fertilizer. In modern society, a dog's role is usually limited by the confines of an apartment or fenced-in backyard. The dog's meat has very little value, its milk is only meaningful to its young, and dog poop is seen more as a nuisance than anything else. How then, do courts value an injured or killed pet dog?
A New York court, in Zager v. Dimilia, commented on the valuation of a recently killed pet dog, stating, “[I]t is impossible to reduce to monetary terms the bond between man and dog, a relationship which has been more eloquently memorialized in literature and depicted on the motion picture screen.” [FN50] The court analyzed the traditional formulas of animal valuation and found them lacking in light of a dog's role in modern society. [FN51] They stated, “A historical survey of the case law reveals that this rule originated in cases involving working animals, valuable for their herding or hunting skills or show dogs, prized for their pedigree.” [FN52] The dog in this case was adopted from an animal shelter by a family who cared for it as it grew old. [FN53] He was not valuable for herding or hunting, and he surely was not a show dog. The dog's only value to its owner was one of a non-economic nature. Trying to apply the traditional valuations of “age, health, [and] special traits or characteristics,” the court found these valuations lacking as “any such ‘intrinsic’ value would be a guess.” [FN54]
Looking at older cases helps to highlight the dog's transition from economic tool to companion. Older cases did allow for triers of fact to consider a special or pecuniary value to the owner; however, such considerations were limited by specific factors. [FN55] Specifically, in Hodges v. Causey, the Mississippi Supreme Court held the “‘special or pecuniary value to his owner, to be ascertained by reference to his usefulness and services.’ And it is perfectly competent to prove the pedigree, characteristics and qualities of the dog, and then *577 prove, by witnesses who know these things, their opinions as to the value.” [FN56] However, this valuation was only to be used if the dog had no market value. [FN57]
Courts during the late 1800s and early 1900s tended to rule similarly to the court in Hodges. [FN58] If there were a variance in a lower court's ruling in a case involving injured or killed dogs, the error was generally corrected by a higher court and remanded. [FN59] An interesting example comes from the 1906 case Klein v. St. Louis Transit Co., heard in a Missouri Court of Appeals. [FN60] In this case, a dog with an affinity for chasing birds was run over by a train while enjoying his favorite activity. [FN61] At trial, the jury was given an instruction regarding the measure of damages that would allow them to take into consideration the “[plaintiff's] loss of the dog's company and the deprivation of the amusement and pleasure the dog afforded [him].” [FN62] A jury instruction in 1906 regarding the damages of a dog that included loss of company and amusement was unheard of, and the appellate court quickly found such an instruction to be erroneous and the judgment was reversed. [FN63]
Perhaps the most telling sign of transition is simply the way courts speak about dogs in their written opinions. Opinions of older cases tend to focus on the property aspect of a dog, giving little, if any, heed to the idea that a dog might have more than an economic value to their owner. [FN64] The opinion in Spray v. Ammerman is a great example of the almost emotionless treatment older courts used when discussing the valuation of a dead dog. In that case, two farmers, Spray and Ammerman, owned adjoining land. [FN65] The two were not friendly but they had a standing agreement that one would clear brush along the property line if the other would put up a fence. [FN66] This was partially done, but an opening remained that allowed Ammerman's cows to wander onto Spray's property. [FN67] When this occurred it was common for Spray to send his dog to herd the cattle and chase them back to Ammerman's property. [FN68] On one such occasion, Spray's daughter saw the cattle making their way across the boundary and onto her *578 father's property, and as usual she sent the dog after the cattle to return them. [FN69] When the dog returned, it dutifully laid down at the daughter's feet to rest. [FN70] A few moments later, Ammerman “came [over] with a gun, and [while] the dog was lying there, shot and killed [it].” [FN71] The trial court found that Ammerman was acting within his rights in shooting the dog to protect his cattle. [FN72] The Illinois Supreme Court reversed that ruling and found for Spray. [FN73] In commenting on the errors of the lower court, the court focused on three things with regard to the death of the dog. First, the court found the dispute over whether the dog had a commercial value in the county was a question of fact and not of law. [FN74] Second, it held that a jury should be allowed to consider the testimony and opinions of witnesses who “place their estimate on the loss of services of the dog for a given time.” [FN75] Finally, the court talked about the possibility of mitigation of the damages due to harm to the defendant's cattle. [FN76] Had this occurred in 1972 instead of 1872, it would be shocking for the plaintiff, or the court in response, to mention nothing but the commercial value of the dog. It is quite likely that the plaintiff would be calling for punitive damages, and asserting claims of intentional infliction of emotional distress, and negligent infliction of emotional distress, along with a claim for lost property. [FN77] But this case reflects the thinking of the time: dogs simply did not serve a purpose in a family outside of the economic world.
Opinions in more modern cases, while they may follow the reasoning of the older cases, are sometimes sympathetic to the plight of the dog owner in trying to recover damages from a valuation that is purely economic. [FN78] For example, a Minnesota appellate court, in the case of Soucek v. Banham, acknowledged the non-economic losses a pet owner suffers stating, “[Plaintiff] argues persuasively that pets have a special place in society. Unlike other personal property, pets provide companionship to their owners.” [FN79] However, the court found that it was bound by precedent and continued to hold that the “[i]ntrinsic value of a pet to its owner is not currently included in damages that may be recovered for intentionally killing a pet.” [FN80] Pushing the envelope further are cases such as *579 Campbell v. Animal Quarantine Station [FN81] in Hawaii and La Porte [FN82] in Florida, allowing not only recovery of non-economic damages, but causes of action based solely on an owner's emotional loss.
Modern courts have further been split on proper damage awards that will fairly compensate an owner for his injury or loss. Some courts, like the Supreme Court of Iowa, hold to the precedent set in older cases while supplementing their decisions with elements of the Restatement. [FN83] In a relatively recent case, Nichols v. Sukaro Kennels, the court held that if no market value is available, recovery is allowed based on the characteristics and intrinsic value of the dog, but an owner cannot recover more than the pecuniary value (usually the purchase price) of the dog. [FN84] In Nichols, a couple boarded their pet poodle at the defendant's kennel for seven days. [FN85] While staying there, the dog had its front leg and shoulder blade torn off by another dog at the kennel that was able to run free because an employee had negligently left its cage unlocked. [FN86] The veterinary expenses for the treatment of the dog were $326.24. [FN87] The defendant provided testimony by the director of the local animal rescue league stating that the market value of a poodle with three or four legs was about $100 or $200. [FN88] However, plaintiffs presented a counselor who testified to the “humanistic” relationship the family had with the dog. [FN89] The court, in making its determinations on the value of the dog, held, “The measure of damages for injury to, or destruction of, an animal is the amount which will compensate the owner for the loss and thus return the owner, monetarily, to the status he or she was in before the loss.” [FN90] The court went on to name factors that would assist in determining damages for injury that included “market value, which may be based on purchase price, relatively long life of breed, its training, usefulness and desirable traits.” [FN91] The court then limited these damages so that they could not exceed the value of the animal prior to the injury. [FN92]
Other modern courts choose to abandon the limitations of precedent and the Restatement, and instead base their damage valuations on good sense and the basics of tort law principles. [FN93] While these courts do not go as far as the courts in Campbell and LaPorte, [FN94] they are consistent in their understanding of damages *580 and the role they play in remedying a tort. As a New Jersey court plainly stated in the case of Kurash v. Layton, “The normal measure of damages for the commission of a tort is all damages proximately caused by the injury.” [FN95] Under the facts of this case, a man's beagle was impregnated twice by his neighbor's dog. [FN96] After the first pregnancy, the beagle's owner informed the neighbor that he wished contact between the two to cease. [FN97] Despite keeping a close watch on his dog while she was in heat, he was unable to prevent a second pregnancy when his neighbor's dog again impregnated her, this time causing medical complications. [FN98] The final veterinary bill for the pregnancy and the complications totaled $851. [FN99] The court, applying a common sense rationale, held, “Good sense in this case compels a judgment in favor of plaintiff against defendant for the full amount of the bills incurred in connection with the dog's second pregnancy.” [FN100]
Other modern courts continue to use this same “good sense” approach when determining damages for dog injury cases. A New Jersey court, in the Borras case, followed the logic used in Kurash when they found a defendant liable for the full veterinary expenses incurred by a plaintiff after her shih tzu was mauled by defendant's bulldog even though the court found those expenses were five times the replacement cost of plaintiff's dog. [FN101] Citing Kurash, the Borras court held, “It is purely a matter of ‘good sense’ that defendants be required to ‘make good the injury done.”’ [FN102]
Courts outside New Jersey have followed the same “good sense” approach to damages seen in Borras. Namely, “the sundry rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered.” [FN103] The appellate court of Kansas, dealing with the issue of damages for a dog as a case of first impression, used this same logic [FN104] in finding that a dog owner was not limited to the replacement value of her injured dog, but was allowed to recover the veterinary expenses needed to make her dog whole again. [FN105] Also, a U.S. District Court recently used the veterinary costs incurred by a dog owner after her dog was shot by a federal government official in a valuation determination. [FN106] While the facts of the case are disturbing and sad, [FN107] *581 it is important to note that even conservative courts are shifting their thinking beyond the constraints of the Restatement to allow recovery of damages for property higher than the replacement value. [FN108] The use of veterinary expenses as a reasonable marker of damages in dog injury or death cases is not a brand new concept. Louisiana courts have been using veterinary costs as a measure of damages since 1950. [FN109]
The rationale behind awarding veterinary expenses as reasonable damages was laid out by a New York court in the case of Zager v. Dimilia. [FN110] In this case, the court found that an owner of an adopted dog with a maximum replacement cost of $50 was entitled to recover the veterinary fees of $300 incurred after his dog was attacked by another dog. [FN111] In so finding, the court relied upon the writings of an old legal scholar commenting on cases involving injuries to animals:
[T]he plaintiff ought to recover for expenses reasonably incurred in efforts to cure them, in addition to the depreciation in their value, or to their whole value, where they are finally lost. The law would be inhuman in its tendency if it should prescribe a different rule, even where the animal eventually dies; since it would then offer an inducement to the owner to neglect its sufferings. [FN112]
As the role of a dog in society has shifted, dog owners have become more and more frustrated with the lack of congruency between the courts and society. While some courts are willing to embrace the new role of dogs, allowing for recovery of damages based on “good sense” and basic tort principles, other courts still hold to older and often ineffective precedent. These separate approaches to the same problem can be seen as both sourcees of frustration and inspiration for modern day dog owners. As courts still maintain a dog's legal status as property, owners have been forced to find alternative methods of recovery when their property (or best friend) is injured or even killed by another's wrongful or negligent act.


III. Causes of Action


Because the majority of jurisdictions consider dogs the property of their owners, people are limited in what they can do when faced with the tort-induced injury or death of a pet dog. The average pet owner, depending on the facts of the case, typically has three main causes of action: Intentional Infliction of Emotional Distress (“IIED”), Negligent Infliction of Emotional Distress (“NIED”), and damages for property loss. The first two claims are seen in pet *582 cases after the introduction of IIED as a separate tort claim. [FN113] and as part of a multiple claim suit involving damages for property loss, while a claim of damages for property loss was generally the sole cause of action in cases brought in the later 1800's and early 1900's. [FN114] The claim of damages for property loss alone in those early cases and the introduction of IIED and NIED in later ones further suggests that the role of dogs as pets changed over the course of the past century.


A. Intentional Infliction of Emotional Distress


To have a claim for IIED, a pet owner must show that the actor intentionally or recklessly acted with extreme or outrageous conduct, and the actor caused severe emotional distress to the pet owner. [FN115] The test for whether the conduct was extreme and outrageous is whether an average member of the community, after having heard the recitation of the story, would exclaim “Outrageous!” [FN116]
The problem some courts face with claims of IIED is that the offensive act (tort) was directed at the dog and not the owner. The Restatement (Second) of Torts emphasizes this problem, stating, “The fact that the actor intends to invade some other legally protected interest is insufficient to create liability where the only effect of his act is the creation of emotional distress.” [FN117] The Supreme Court of Wisconsin, in the case of Rabideau v. City of Racine, recently re-emphasized this problem, holding that a pet owner needed to show that the actor not only acted in an extreme and outrageous way toward her dog, but that such conduct was done with the intent to cause mental distress to the owner. [FN118] In Rabideau, a woman witnessed her dog shot by an off-duty police officer when the dog jumped out of her truck parked in the driveway and ran across the street where her neighbor's dog was chained up. [FN119] As the woman crossed the street to retrieve her pet, the off-duty police officer perceived the animal's acts as threatening to his dog and his family and opened fire. [FN120] The dog was struck and died two days later. [FN121] Upon hearing the news, Rabideau collapsed and was given medical treatment. [FN122] The difficulty in this case comes with the court's determination of that which constitutes “intentional” conduct. The court held that intent could be “evidenced by inferences from words, conduct or the *583 circumstances in which [the] event[] occurred.” [FN123] It seems hard to believe that neighbors living across the street from one another would not intend emotional harm, when in full view of one another, they open fire upon their neighbor's dog without at least first letting the owner come over and pull the dog away. If anything, it would seem that the circumstances of two neighbors living in close proximity would give rise to the inference that emotional distress was intended.
There are, however, courts that are willing to allow claims of IIED for pet owners. For instance, the Supreme Court of Alaska held that it was possible for pet owners to make a claim of IIED as long as the trial judge determined the “severity of the emotional distress and the conduct of the offending party [would] warrant a claim of [IIED].” [FN124] Further, the pet owner must make an offer of proof as to the severity of the emotional distress. [FN125] The court held that the most effective form of this proof could be medical testimony; however, “it should not be the exclusive means of ascertaining a party's mental state.” [FN126]
Because of the difficulties that come with a claim of IIED-namely, proving that the offensive and outrageous act to a dog was intended to cause the owner severe emotional distress and the proffering of evidence to support that the mental distress was (and is) severe-this claim has proven to be a relatively frustrating path for pet owners to take.


B. Negligent Infliction of Emotional Distress


To get around the requirement of intent, other pet owners have made claims of NIED. Negligence is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” [FN127] While this removes the requirement of intent, the Restatement goes on to point out that an actor is only liable if “he subjects another to emotional distress which he should recognize as likely to result in illness or other bodily harm.” [FN128] The following comment further illustrates the problems pet owners will face. “The rule stated in this Section does not give protection to mental and emotional tranquillity in itself . . . there is no liability where the actor's conduct inflicts only emotional distress, without resulting in bodily harm.” [FN129] Further, if the harm occurs to another and the person claiming emotional distress is not in danger or threatened with bodily harm, then even if bodily harm or illness results from the mental distress caused by witnessing the event, the actor is not liable to the person who witnessed the event. [FN130]
Because many jurisdictions have laws similar to the requirements of the Restatement, many courts do not allow pet owners to recover from claims of *584 NIED. [FN131] The Wisconsin Supreme Court in Rabideau did not allow the claim of NIED because Wisconsin law required that the person who witnessed the event and suffered the severe mental distress be related to the injured victim “as spouses, parent-child, grandparent-grandchild or siblings.” [FN132] Rabideau argued that the court should expand this related category to include human companion animals. [FN133] The court refused to expand the category, relying on various public policy arguments. [FN134] Regardless, the Rabideau court concluded that “it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent damage to his or her property.” [FN135]
Aside from veterinary malpractice cases, there has been one case in which a pet owner was allowed to recover for NIED. This case came out of the Supreme Court of Hawaii and involved a family whose dog, Princess, was held over at a quarantine station when the family arrived at the island. [FN136] This was a common and necessary practice as officials needed to make sure the animal was not infected with or carrying any diseases into a delicate and secluded ecosphere. As the dog was awaiting transport to the pet hospital for inspection, it was required to wait in the back of a van parked in the sun with seven other animals. [FN137] As it was a hot afternoon, there were no ventilation devices in the van, and the dog remained in the van for at least an hour; it is hardly surprising that Princess died twenty minutes after arriving at the pet hospital. [FN138] The vet determined the dog died of heat exhaustion and the family was notified; all of the family members cried at the receipt of the news except the father. [FN139] The family never saw the dog die, nor did they see the dead body of their pet, yet each claimed to suffer serious emotional distress for two to three weeks after Princess' death. [FN140]
In the previous case of Rodrigues v. State, the Hawaii Supreme Court had allowed recovery of mental distress for negligence in the destruction of a family's house. [FN141] The court held: “serious mental distress may be found where a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” [FN142] The most interesting result from the Rodrigues ruling was that Hawaii did not require a showing of physical harm to recover for NIED or IIED. [FN143] This ruling specifically goes against the Restatement's assertion that NIED “does not give *585 protection to mental and emotional tranquility in itself.” [FN144] Hawaii, like the court in Fairbanks, chooses to leave the determination of the severity of the emotional distress to the trier of fact. [FN145] Also, like the Fairbanks court, Hawaii made the observation that “[m]edical proof can be offered to assist in proving the ‘seriousness' of the claim and the extent of recovery, but should not be a requirement allowing or barring the cause of action.” [FN146] The Campbell court was presented with public policy arguments, much like those in the Rabideau case, by the defendant claiming that allowing recovery under such circumstances would open the veritable floodgates of litigation. [FN147] However, the court flippantly rejected the argument, stating that “[s]ince the holding in Rodrigues, there has been no ‘plethora of similar cases.”’ [FN148]
While the Supreme Court of Hawaii's decision in Campbell seemed promising for pet owners in their litigation endeavors, the reality is that only a handful of courts have allowed recoveries for IIED and NIED in similar circumstances. [FN149]
Frustration abounds for dog owners in both their causes of action following injury or death of their dog and the damages recoverable. Many dog owners implore courts to allow for such recovery either by judicially created rules or expansion of existing rules to include recovery for dogs. While these arguments may seem highly persuasive, and even viable, at their inception, many courts and legal scholars have discovered unintended consequences that are likely to result if such arguments are accepted.


IV. Public Policy Concerns and Other Problems Anticipated


Frustrated dog owners, completely distraught by the loss or injury of their friends, place themselves at the mercy of the court with the hope that the triers of fact are dog lovers too. Some call for an expansion of current tort law to include companion animals. [FN150] Others hope a judge will be sympathetic to the emotional connection they hold with their beloved pet and pray for damages that take into account that connection. [FN151] Still others wish only for compensation for the *586 emotional distress and loss of companionship they have suffered. [FN152] In all of these instances, judges are sympathetic, but only to a point.


A. Expanding Current Tort Law Categories to Include Companion Animals Raises Public Policy Concerns.


In Rabideau, the judge conceded that “emotional distress may arise as a result of witnessing the death or injury of a victim who falls outside the categories established in tort law.” [FN153] The court acknowledged that the law does not supply a remedy for all situations. However, the court was unwilling to expand the law to include companion animals in the same class as “spouse, parent, child, grandparent, grandchild, or sibling,” as those relationships “are deeply embedded in the organization of our law and society.” [FN154] The court went on to list public policy concerns that would arise if this class were expanded. First, the court found it would be too difficult to precisely define the “limit of the class of individuals who fit into the human companion category.” [FN155] Would there only be one human companion per family? Would those outside the family be included? Would the owner or primary caretaker be the only member? [FN156] Along this same line of thinking, the court found that it would also be difficult to “cogently identify the class of companion animals because the human capacity to form an emotional bond extends to an enormous array of living creatures.” [FN157] Should the new law include birds, chameleons, geckos, snakes, spiders, or fish? Other courts have built off of the initial concerns raised by the Rabideau court.


B. Further Policy Concerns Include Fairness to Tortfeasor and Quantifying Damages


In the case of Harabes v. Barkery, Inc., a New Jersey court added to the concerns raised by Rabideau as it found that “[a]nother policy consideration is the need to ensure fairness of the financial burden placed upon a negligent defendant.” [FN158] This thinking questions the fairness of slapping a newly licensed sixteen-year-old's parents with massive non-economic damages because Junior was excitedly flipping through the radio stations as he drove through the neighborhood, accidentally hitting Fluffy. If this were the case, people may choose not to drive, as such a simple and convenient activity has now been transformed to an instant lottery jackpot for a hapless, and possibly negligent, dog owner. The Harabes court furthers this policy concern by finding an extreme imbalance between “quantifying the emotional value of a companion pet *587 and the risk that a negligent tortfeasor [would] be exposed to,” worrying that “allowing such claims to go forward would open the floodgates to future litigation.” [FN159] This, legal scholars believe, would lead to courts “becom[ing] clogged with speculative non-economic damage claims,” and would encourage plaintiffs' lawyers “to push the outer envelope of uncertain law.” [FN160]


C. Anthropomorphizing Dogs Raises Moral As Well As Practical Concerns


The Harabes court continued to expand its arguments against non-economic damages for dog owners as it compared the loss of a pet dog to the loss of a child orspouse. Focusing on the state's wrongful death statutes, the court states, “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.” [FN161]
The Harabes court is not alone in its concern regarding the humanizing of dogs. Professor Cupp, a law professor at Pepperdine University, argues that allowing dog owners to recover damages violates a larger moral code. [FN162] He states, “pets are not equivalent in value to humans. Society's placement of pets on the same level as humans by compensating their loss similarly would devalue humanity.” [FN163] He acknowledges the temptation to love pets more than humans but maintains that “[f]ormally valuing animals like humans in the courts encourages an emotional laziness that focuses on an easy form of attachment . . . My wonderful dog Shasta is, indeed, my closest buddy, but he is not my highest calling.” [FN164]


D. Courts Should Not Play the Role of Legislators


Even if a court is not swayed by the policy concerns laid out above, many courts will not, and some scholars argue should not, play the role of the legislature. [FN165] “Unlike the legislature, [courts] are not in a position to hold hearings on the subject. They are confined to arguments before the [m].” [FN166] Further, the decision to allow non-economic damages in dog injury or death cases would have a wide ranging effect on a large group of people involved with the pet industry. [FN167] Schwartz and Laird find “[t]he interests of [these] group[s] need to be heard, weighed, and balanced in a legislative forum.” [FN168]
*588 With such daunting public policy concerns before them, does any hope remain for the hapless dog owner?


V. Legislative and Common Sense Solutions

A. Statutes and Other Legislative Propositions


As of this writing, only Illinois and Tennessee have enacted statutes dealing with the death or injury of a pet dog. Tennessee was on board first, passing the “T-Bo Act” in 2000. [FN169] The bill was introduced by Senator Cohen and named after his pet dog, which was killed by a neighbor's dog. [FN170] It came in response to a judgment finding that the Senator would be able to recover no more than the amount he had spent on veterinary care treating the dog's injuries. [FN171] The law allows pet owners to recover up to $5,000 in non-economic damages; however, it is limited to densely populated areas and covers only domesticated cats and dogs. [FN172] Further, the statute requires that the injury take place on the property of the pet owner or while under the owner's control. [FN173]
The next bill to be passed came from Illinois and is called the Human Care for Animals Act. [FN174] This act does not limit recovery solely to cats and dogs, and it also caps recovery for punitive damages at $25,000. [FN175] Further, the bill expands the damages to include not only veterinary expenses and monetary loss, but also emotional distress. [FN176] While other states have tried to pass similar bills, all have died in either the house or senate. [FN177]
While these statutes are revolutionary, they are not without some initial problems. First, the T-Bo Act is ambiguous with regard to identifying the pet's owner or caretaker. [FN178] Without specifically naming the proper person who can bring suit and recover, the statute falls to the same public policy concerns raised by the Rabideau court. [FN179] Next, the Illinois statute does not require the owner to be present at the time of the attack, or even for the attack to take place on or near the owner's property, thereby making the owner unaware of the animal's *589 injury. [FN180] This could raise doubts as to the genuineness of the emotional distress claim and subsequent damage award. [FN181]
These initial problems, however, also suggest solutions. For instance, better clarification and specificity regarding the wording used in the statute could clear up ambiguities regarding who is allowed to bring suit. Also, the damage award caps provided by both states-while low in Tennessee-are steps in the right direction. Caps directly address the problems raised by the Harabes court. [FN182] “A cap would prevent juries from being overcome with sympathy for the plaintiff and thus inflating the emotional distress damages beyond all reasonable bounds.” [FN183] Further, a legislative cap would unify court decisions, bringing consistency to confusing decisions by providing damage guidelines for judges and juries. [FN184]
Addressing the problem of anthropomorphizing dogs, a legislative cap would emphasize that while “the human-animal bond is worthy of significant compensation, the law still recognizes that the bonds among humans are at the heart of our existence and our social organization.” [FN185]
Regarding the arguments made by the Harabes court using New Jersey's wrongful death statutes, perhaps it is time for courts to reconsider the emotional bonds severed by the negligent or untimely death of a loved one. [FN186] Using a faulty statute as an argument foil does nothing more than point out the ineffectiveness of the statute. Consider states that have statutes that allow for recovery of consortium with the wrongful death of a spouse or recovery of loss of society with the wrongful death of a child; those who seek recovery are required to present evidence supporting the consortium or society lost. [FN187] Going along this same line, legal scholars have proposed that dog owners seeking damages for loss of companionship should also have to present evidence proving “the nature and duration of the relationship with the animal and the extent of the mental suffering experienced upon the animal's death.” [FN188] By capping both the non-economic damages and severely restricting the recovery of damages for loss of companionship, the fear of unfair liability will decrease for defendants, and dog owners can rely on consistent and fair decisions regarding their lost or injured pets. [FN189]
*590 The solutions, however, are not solely legislative. Courts will still play a role in dog injury and death cases. And, although a court's role will be a guided one, further guidance is still needed regarding the distribution of compensatory and punitive damages.


B. The Role of Punitive and Compensatory Damages


While non-economic damages may enter the arena of possible recoveries for the owner of an injured or deceased pet, courts need to be specific in awarding such damages. They need to point out their compensatory purpose. This is not to say that punitive damages cannot and should not be given out. Punitive damages should still be considered, but only in light of the facts of the case. For instance, courts should follow the lead of the forward-thinking court in LaPorte. [FN190] In that case, the court found the actions of the garbage collector so heinous that it awarded separate damages, compensatory and punitive, to the owner of the deceased dachshund. [FN191] These courts, however, should steer clear of a muddled view of compensatory and punitive damages. Opinions like the one in Borras confuse the meaning of punitive damages and lead other courts to follow down a false road. [FN192] Non-economic damages are merely intended to compensate for emotional loss and emotional distress. Further, these damages are capped. Punitive damages are intended to deter. Damages for deterrence are only needed in the most extreme cases and are to “provide an additional level of deterrence of tortious conduct.” [FN193] These damages should be saved for instances where “the defendant consciously and deliberately chose to injure another.” [FN194] For courts to issue them otherwise only confuses the purpose of compensatory, non-economic damages and weakens the purpose of punitive damages.




Having patched up your best friend's front leg and paid your veterinary bill, you drive back to your house cursing GM (the makers of the H3) and planning your next move. How can you convince others to recognize the important relationship you have with your dog when they try to view it from the outside? It will have to be through the assistance of the courts and the legislatures in order for dog owners to realize adequate recoveries for the injuries to or deaths of their pets. The continually changing, role dogs play in society has landed them outside the umbrella of protection currently offered by the law, which has them sitting uncovered in a downpour of litigation and dispute. Hopefully owners, courts, and legislatures can come to a consistent and fair conclusion because, in *591 these instances, there is nothing worse than a wet dog. The only hope for advancement is a better understanding of the frustrations, hopes, fears, and disappointments that face the modern day dog owner. Aside from poop on the rug, dog and owner must also face down hundreds of years of set legal precedent while trying to keep up with an advancing society.
At the end of the day, the weary dog owner has no choice but to place the sedated dog at the foot of the bed, check to make sure the lampshade collar is secure, and try to get some sleep before the real world beckons at six a.m. Before dozing off, the tired owner's thoughts turn not to the lights left on in the house, the iPod left charging in the car, the flat screen still buzzing in the living room, nor even the He-Man action figures up for auction on E-Bay. No, at this critical moment, the time where reality dips off and dreams are soon to come, the owner's thoughts rest solely on the well-being of his best friend, the former victim of a mangled left leg, and the current victim of a drug-induced doze, sleeping soundly at the foot of the bed.


[FNa1] . J.D. Candidate, University of Missouri-Kansas City, School of Law, 2008; B.A. History, B.A. Religion, Texas Christian University, 2005. This Note was inspired by a case litigated by the Author's father, Robert Scott, in the Winter of 2004. The Author would like to thank Professor Allen Rostron for his guidance in the formation of this Note. Special thanks to the Scott Family, the Bangert Family, and, of course, the Author's fiance, Jill Bangert, for their consistent criticism, constant support, and saintly patience.

[FN1] . See Robin Cheryl Miller, Annotation, Damages for Killing or Injuring Dog, 61 A.L.R.5th 635 (2004).

[FN2] . See id.

[FN3] . American Pet Association, Fun Pet Statistics, at http:// www.apapets.com/petstats2.htm (last visited Oct. 23, 2006).

[FN4] . Id.

[FN5] . Id.

[FN6] . This paper solely focuses on injury or death cases involving dogs. It excludes those cases dealing with veterinary malpractice or negligence as this would expand the scope of this paper to a point that would be unmanageable. For more information on this subject, see Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479 (2004).

[FN7] . For intentional infliction of emotional distress and negligent infliction of emotional distress claims, the owner would need to fulfill the requirements of the claim before being able to recover anything.

[FN8] . See Hyland v. Borras, 719 A.2d 662, 664 (N.J. Super. Ct. App. Div. 1998) .

[FN9] . Restatement (Second) of Torts § 903 (1979) (alteration added).

[FN10] . Id. at cmt. a.

[FN11] . See 525 Main St. Corp. v. Eagle Roofing Co., 168 A.2d 33 (N.J. 1961)).

[FN12] . 719 A.2d at 664 .

[FN13] . See Restatement (Second) of Torts § 903 cmt. a (1979).

[FN14] . Borras, 719 A.2d at 664 .

[FN15] . See Restatement (Second) of Torts § 908 (1979).

[FN16] . Id. at 908(1)-(2).

[FN17] . Id. at cmt. a.

[FN18] . Id. at cmt. b.

[FN19] . Id. at cmt. c.

[FN20] . 55 N.W. 657, 657-58 (Mich. 1893) (referring to “punitive damages” as “exemplary damages” in the opinion).

[FN21] . Id. at 657.

[FN22] . See Borras, 719 A.2d at 664 .

[FN23] . Restatement (Second) of Torts § 908 cmt. c (1979).

[FN24] . 163 So. 2d 267 (Fla. 1964) .

[FN25] . Id. at 267-68.

[FN26] . Id. at 268.

[FN27] . Id.

[FN28] . Id.

[FN29] . Id. at 267.

[FN30] . Id. at 268.

[FN31] . Id. at 269.

[FN32] . See Hopen, 55 N.W. at 657 (Mich. 1893) (jury instructions and valuations for damages focus mainly on characteristics of dog and not owner's feelings of loss).

[FN33] . Wikipedia, The Free Encyclopedia, Gordon Setter, http:// en.wikipedia.org/wiki/Gordon_setter (last visited Oct. 26, 2006); Wikipedia, The Free Encyclopedia, Setter, http://en.wikipedia.org/wiki/Setter (last visited Oct. 23, 2006).

[FN34] . Id.

[FN35] . La Porte, 163 So. 2d at 267 .

[FN36] . Wikipedia, The Free Encyclopedia, Dachshund, http:// en.wikipedia.org/wiki/Dachshund (last visited Oct. 23, 2006).

[FN37] . “The restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept.” La Porte, 163 So. 2d at 269 .

[FN38] . Restatement (Second) of Torts § 911(1) (1979).

[FN39] . Id. at 911(2).

[FN40] . Id. at 911(1).

[FN41] . Id. at cmt. e.

[FN42] . Id.

[FN43] . Id.

[FN44] . Id.

[FN45] . Restatement (Second) of Torts § 928 cmt. a (1979).

[FN46] . Id.

[FN47] . Restatement (Second) of Torts § 911 cmt. e (1979).

[FN48] . Id.

[FN49] . Burgess v. Shampooch Pet Indus., Inc., 131 P.3d 1248, 1252 (Kan. Ct. App. 2006) (quoting Kansas City Power & Light Co. v. Hatcher, 14 Kan. App. 2d 613, 617 (Kan. Ct. App. 1990)).

[FN50] . 524 N.Y.S.2d 968, 969 (J. Ct. N.Y. 1988).

[FN51] . Id.

[FN52] . Id. at 970 (citations omitted).

[FN53] . Id. at 969.

[FN54] . Id. at 969-70.

[FN55] . See Spray v. Ammerman, 66 Ill. 309, 313 (Ill. 1872); Anson v. Dwight, 18 Iowa 241, 244 (Iowa 1865); Hopen, 55 N.W. at 657 (Mich. 1893); Hodges v. Causey, 26 So. 945, 946 (Miss. 1899); Klein v. St. Louis Transit Co., 93 S.W. 281, 282-83 (Mo. Ct. App. 1906) (finding a jury instruction on damages that included the loss of company and enjoyment erroneous).

[FN56] . Hodges, 26 So. at 946 (internal citations omitted).

[FN57] . Id.

[FN58] . See Spray, 66 Ill. 309; Anson, 18 Iowa 241; Hopen, 55 N.W. 657; Hodges, 26 So. 945.

[FN59] . See Spray, 66 Ill. at 313-14; see also Klein, 93 S.W. at 282-83 (Mo. Ct. App. 1906).

[FN60] . 93 S.W. 281.

[FN61] . Id.

[FN62] . Id. at 283.

[FN63] . Id.

[FN64] . See Spray, 66 Ill. 309 (holding that value should be determined by loss of services and other factors); Anson, 18 Iowa 241 (finding that witness can testify only to dog's market value); Hodges, 26 So. at 946 (finding that if a dog had no market value then the court will use the “special or pecuniary value to his owner, to be ascertained by reference to his usefulness and services.”); Klein, 93 S.W. at 282-83 (finding a jury instruction on damages that included the loss of company and enjoyment erroneous).

[FN65] . Spray, 66 Ill. at 312-13.

[FN66] . Id.

[FN67] . Id.

[FN68] . Id.

[FN69] . Id.

[FN70] . Id.

[FN71] . Id. at 312.

[FN72] . Id.

[FN73] . Id. at 314.

[FN74] . Id. at 312-13.

[FN75] . Id. at 313.

[FN76] . Id.

[FN77] . See La Porte, 163 So. 2d at 267 .

[FN78] . See Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Alaska 1985) ; Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996) ; Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001) ; Harabes v. The Barker, Inc., 791 A.2d 1142 (N.J. Super. Ct. Law Div. 2001) ; Soucek v. Banham, 524 N.W.2d 478 (Minn. Ct. App. 1994) .

[FN79] . 524 N.W. 2d 478, 481 (Minn. Ct. App. 1994) .

[FN80] . Id.

[FN81] . 632 P.2d 1066 (Haw. 1981) .

[FN82] . 163 So. 2d at 267.

[FN83] . See, e.g., Nichols, 555 N.W.2d at 691-92 .

[FN84] . Id.

[FN85] . Id. at 690.

[FN86] . Id.

[FN87] . Id.

[FN88] . Id.

[FN89] . Id. at 691.

[FN90] . Id. at 691-92.

[FN91] . Id.

[FN92] . Id. at 692 (citing Miller v. Econ. Hog & Cattle Powder Co., 293 N.W. 4, 11 (Iowa 1940)).

[FN93] . See, e.g., Burgess, 131 P.3d at 1248; Borras, 719 A.2d at 662; Kurash, 598 A.2d at 535 .

[FN94] . See Campbell, 632 P.2d at 1066 (allowing cause of action for negligent infliction of emotional distress (NIED)); see also LaPorte, 163 So. 2d at 267 (allowing recovery for emotional distress).

[FN95] . 598 A.2d at 538 .

[FN96] . Id. at 536-37.

[FN97] . Id.

[FN98] . Id.

[FN99] . Id.

[FN100] . Id. at 538.

[FN101] . 719 A.2d at 663.

[FN102] . Id. at 664 (citing Kurash, 598 A.2d at 538).

[FN103] . Id. at 663 (quoting New Jersey Power and Light Co. v. Mabee, 197 A.2d 194 (N.J. 1964)).

[FN104] . “[T]he answer rests in good sense rather than in a mechanical application of a single formula.” Burgess, 131 P.3d at 1252 (quoting Kansas Power & Light Co., 797 P.2d at 162 (quotations omitted)).

[FN105] . Id. at 1253.

[FN106] . Kaiser v. United States, 761 F. Supp. 150 (D. D.C. 1991).

[FN107] . See id. at 152-56.

[FN108] . Id. at 156.

[FN109] . See, e.g., Morgan v. Patin, 47 So.2d. 91 (La. Ct. App. 1950); Brown v. Swindell, 198 So.2d. 432 (La. Ct. App. 1967).

[FN110] . 524 N.Y.S.2d at 968.

[FN111] . Id. at 970.

[FN112] . Id. (quoting 2 Shearman & Redfield, Negligence § 752 at 1291-923 (5th ed. 1898)).

[FN113] . Restatement (Second) of Torts § 46 cmt. b (“It is only within recent years that the rule stated in this Section has been fully recognized as a separate and distinct basis of tort liability.”).

[FN114] . See, e.g., Spray, 66 Ill. At 309; Anson, 18 Iowa at 241; Ellis, 141 N.W. at 415; Hopen, 55 N.W. at 657; and Hodges, 26 So. at 945.

[FN115] . Restatement (Second) of Torts § 46 (1979).

[FN116] . Id. at cmt. d.

[FN117] . Id. at cmt. a.

[FN118] . 627 N.W.2d at 803.

[FN119] . Id. at 799-800.

[FN120] . Id.

[FN121] . Id.

[FN122] . Id.

[FN123] . Id. at 803.

[FN124] . Richardson, 705 P.2d at 456 .

[FN125] . Id. at 456-57.

[FN126] . Id. at 456-57 n.6.

[FN127] . Restatement (Second) of Torts § 282 (1979).

[FN128] . Restatement (Second) of Torts § 312 (1979).

[FN129] . Id. at cmt. a.

[FN130] . Restatement (Second) of Torts § 313(2) (1979).

[FN131] . Rabideau, 627 N.W.2d at 800-01 .

[FN132] . Id.

[FN133] . Id. at 801-03.

[FN134] . Id. See infra note 151.

[FN135] . Id. at 802 (citing Kleinke v. Farmers Coop. Supply & Shipping, 549 N.W.2d 714 (Wis. 1996)).

[FN136] . Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1067 (Haw. 1981) .

[FN137] . Id.

[FN138] . Id.

[FN139] . Id.

[FN140] . Id.

[FN141] . 472 P.2d 509, 518-22 (Haw. 1970).

[FN142] . Id. at 520.

[FN143] . Id. at 520-22 (making Hawaii the first state to do so).

[FN144] . Restatement (Second) of Torts§ 313 cmt. a (1979).

[FN145] . Campbell, 632 P.2d at 1070 (citing Dold v. Outrigger Hotel, 501 P.2d 368 (Haw. 1972)); see also Richardson, 705 P.2d at 456 .

[FN146] . Campbell, 632 P.2d at 1071; see also Richardson, 705 P.2d at 457, n.6 .

[FN147] . Campbell, 632 P.2d at 1071; see also Victor E. Schwartz & Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule, 33 Pepp. L. Rev. 227, 259-60 (2006) .

[FN148] . Campbell, 632 P.2d at 1071 .

[FN149] . See, e.g., Richardson, 705 P.2d 454 (allowing recovery only if all elements are fulfilled); La Porte, 163 So. 2d 267 .

[FN150] . Rabideau, 627 N.W.2d at 801 .

[FN151] . Nichols, 555 N.W.2d at 690-91 .

[FN152] . Harabes, 791 A.2d at 1143 .

[FN153] . Rabideau, 627 N.W.2d at 801 .

[FN154] . Id.

[FN155] . Id. at 802.

[FN156] . Id.

[FN157] . Id.

[FN158] . Harabes, 791 A.2d at 1145 .

[FN159] . Id.

[FN160] . Schwartz & Laird, supra note 147, at 260.

[FN161] . Harabes, 791 A.2d at 1146 .

[FN162] . Richard L. Cupp, Barking Up The Wrong Tree; Justice: Awarding Emotional Distress Damages to Pet Owners Whose Animals Are Harmed is a Dog of an Idea, L.A. Times, June 22, 1998, at B5.

[FN163] . Id.

[FN164] . Id.

[FN165] . Schwartz & Laird, supra note 147, at 257-59.

[FN166] . Id. at 258.

[FN167] . See, e.g., id.; see also Cupp, supra note 162.

[FN168] . Schwartz & Laird, supra note 147, at 258.

[FN169] . Julian Lee, Woof, Woof: A Call for Legislative Action to Help Companion Animals and Those Who Care for Them, 32 W. St. U. L. Rev. 141, 143 (2004).

[FN170] . Id.

[FN171] . Id.

[FN172] . Tenn. Code. Ann. § 44-17-403 (2006) .

[FN173] . Id.

[FN174] . 510 Ill. Comp. Stat. 70/16.3 (2006) .

[FN175] . Id. The punitive damages cap applies to “each act of abuse or neglect to which the owner was subjected.” Id.

[FN176] . Id.

[FN177] . Lee, supra note 169, at 144-46.

[FN178] . Schwartz & Laird, supra note 147, at 256.

[FN179] . Rabideau, 627 N.W.2d at 802 .

[FN180] . Schwartz & Laird, supra note 147, at 256.

[FN181] . Id.

[FN182] . Harabes, 791 A.2d at 1144-45 (listing public policy concerns).

[FN183] . Margit Livingston, The Calculus of Animal Valuation: Crafting a Viable Remedy, 82 Neb. L. Rev. 783, 827-28 (2004).

[FN184] . Id.

[FN185] . Id.

[FN186] . See Harabes, 791 A.2d at 1146; see also Rabideau, 627 N.W.2d at 801 (finding that the current law does not take into consideration all relationships affected by the injury or death of a loved one).

[FN187] . Livingston, supra note 183, at 837.

[FN188] . Id.; see also William C. Root, “ Man's Best Friend”: Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for Their Wrongful Death or Injury, 47 Vill. L. Rev. 423, 447 (2002) .

[FN189] . Livingston, supra note 183, at 839.

[FN190] . 163 So.2d at 267.

[FN191] . Id.

[FN192] . 719 A.2d at 663-64 (claiming the damages awarded have both a compensatory and deterrent effect without differentiating between compensatory and punitive).

[FN193] . Livingston, supra note 183, at 848.

[FN194] . Id.

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