This article explores what kind of damages pet owners can recover from bringing a lawsuit. While traditional damages are based on economic concepts such as fair market value and consequential damages, the article also explores the recent trend for courts to recognize non-economic damages such as intrinsic value, mental anguish and suffering, and loss of companionship. Unfortunately, however, although a few courts have been leaders in validating these new concepts, the vast majority still do not recognize them.
Unfortunately, in the vast majority of states, domesticated animals are still considered the personal property of the owner and have no independent legal rights. They cannot be party to a lawsuit, and when injured or killed, the measure of damages is based on the harm to the owner, not the pet. In most cases, plaintiffs will recover only the market value of the pet – the amount of money someone else would pay for a pet of the same, age, breed, and condition. Pets of mixed breed would have little or no market value. Even the market value of pedigree dogs or cats will usually be far less than the attorney fees incurred during the lawsuit. As a result, there has been a recent, but gradual movement for states to recognize non-economic damages, such as loss of companionship, emotional distress, or intrinsic worth, making lawsuits more than just symbolic victories for pets and their owners. In fact, Tennessee became the first state to allow plaintiffs whose companion animals have been intentionally or negligently killed by another person to seek non-economic damages up to $5,000. Despite this and other gains in companion animal valuation, the traditional notions for the award of damage to property prevail in most courts.
Fair Market Value for Pedigree Pets or Farm Animals
Where the animal has a market value, such as pedigree dogs or farm animals, damages will be the decline in market value as a result of the injury. Factors used to determine market value are the animals’ pedigree, purchase price, special abilities or training, prizes and awards, age, health, and fertility. However, courts ordinarily will consider any evidence that is indicative of the animal’s commercial value, including expert witness testimony. For example, a Louisiana court decided that even though the purchase price of a young race horse had been $5,000, awarding the insurance policy maximum of $35,000 was still reasonable given the owner had been made an offer to buy the horse for $50,000. Leblanc v. Underwriters at Lloyd's , 402 So.2d 292 (1981). Also, when there is no regular market for an injured animal of a premature age for commercial sale, then the calculation can be based upon what the animal would have sold for when mature, less any amount the owner receives for sale of the injured animal and expenses saved from the premature sale.
Fair market value also has some significance where a purebred dog is at issue. In Williams v. McMahan , 2002 WL 242538 (Wa. 2002), the court held the proper award for a purebred beagle who was wrongfully spayed was the fair market value of the animal. While the dog's purchase price of $400 was evidence of her fair market value, it was not dispositive of the issue because the value of the dog after being "damaged, " if any, figured into the calculation. In contrast, where the property is lost, there remains nothing to reduce the determination. That was the situation in Wertman v. Tipping , where a kennel negligently allowed a seven-year old purebred German Shepherd to escape. 166 So.2d 666 (Fla.App., 1964). Damages in Wertman were not limited simply to fair market value of a comparable dog, as plaintiffs produced evidence showing the "special usefulness" of the dog to the plaintiffs. Id .
Fair Market Value for Mixed Breed Pets
Most courts, however, refuse to see beyond the traditional notion of market value for the loss of a pet. Soucek v. Banham , 524 N.W.2d 478 (Minn.Ct.App. 1995); Daughen v. Fox , 372 Pa.Super. 405, 539 A.2d 858 (1988). However, exceptions have been made where the mixed breed pet had some special value beyond that of an "average pet." ( See Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y.City Civ.Ct.,1980), where the court awarded damages for the protective value the dog provided to a widow. See also Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d (182 N.Y.City Civ.Ct., 1979) .
Consequential Damages/ Cost of Repair
Consequential damages is another way in which owners of mixed breed pets can recover some of their expenses despite the zero market value of their pet. Generally, a tortfeasor is liable not only for the decline in market value of the property, but also for the normal and foreseeable consequential damages that arise from the injury.
Consequential damages can include the reasonable and necessary costs to restore animals to their previous condition as well as loss of income or loss of use. The owner must show that his expenses would not have been incurred but for the injury, are directly related to the injury, and are substantiated by evidence. There is some controversy surrounding veterinary bills which far exceed the fair market value of the dog, and some courts consider these veterinary bills presumptively unreasonable. On the other hand, many courts have recognized that owners have a right to seek medical treatment for injured pets in an effort to restore them to health even if the cost exceeds the value of the pet. In Hyland v. Borras , 719 A.2d 662 (N.J.Super.A.D., 1998), the court distinguished companion animals from other personal property, finding that market value fails to take into account the owner's relationship to the animal. "Repair costs," ($2,500 of vet bills) were in excess of the dog's market value or "replacement cost" of $500, but the award “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, such as occurred here." Id. at --.
The Court of Appeals of Kansas was presented with an issue of first impression as to the proper measure of damages recoverable for injury to a pet dog in Burgess v. Shampooch Pet Industries, Inc ., --- P.3d ----, 2006 WL 908691 (Kan.App.). The plaintiff's dog, a 13-year old dog of negligible market value, suffered a dislocated hip after being groomed at defendant's establishment. The appellate court found the lower court's award of damages based on the veterinary bills was proper where the bills were not disputed and represented an easily ascertainable measure. Specifically, the court held that when an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment. The court was unconvinced by defendant's "hyperbolic" claim that such an award would lead to a floodgate of high-dollar litigation on behalf of animals with low market values.
Courts are much more receptive to consequential damages as an exception to the general rule that awards are based on fair market value because they are still economic in nature. In contrast, courts almost never recognize “sentimental damages” or “intrinsic value,” largely because there is little precedent for it, and there is a fear that awards would be wildly unpredictable and subjective. See Mitchell v. Heinrichs , 27 P.3d 309 (Alaska, 2001).
Recently some courts have started to accept a non-economic type of damages unrelated to market valuation – a pet’s intrinsic value. Bueckner v. Hamel , 886 S.W.2d 368, 886 S.W.2d 368 ( Tex. App. 1994). Intrinsic value recognizes animals as individuals and their unique relationship to their owners. For example, one court stated that "a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property." Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (N.Y.City Civ.Ct., 1979). Unfortunately, though, very few courts have been willing to recognize this concept (see for example, Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa, 1996),
An alternative to criminal sanctions, punitive damages are not meant to compensate an owner for injury to his property, but to punish malicious, willful or reckless disregard for the rights of the animal and its owner, especially in situations in which the traditional measure of damages is not large enough to discourage the behavior. Negligence alone is insufficient to support a claim for punitive damages. To determine the punitive damage award, juries will consider (1) the degree of malice involved; (2) the nature of the interest invaded; (3) the amount needed to deter such conduct; (4) the cost of bringing the suit; and (5) the wealth of the defendant.
Courts have allowed punitive damages when a hospital cremated a dog instead of holding it for autopsy as the owners had requested, when city employees captured and killed a cat on the same day, in contravention of state statute, Wilson v. City of Eagan , 297 N.W.2d 146 (Minn., 1980), when defendant-boarders sold two pet horses to the slaughterhouse after promising to house and care for them, Burgess v. Taylor , 44 S.W.3d 806 (Ky.App., 2001), when a garbage collector hurled a trashcan at a dachshund, killing the dog, LaPorte v. Associated Independents, Inc. 163 So.2d 267 (Fla. 1964), and when a neighbor intentionally shot a pet owner’s dog, Propes v. Griffith 25 S.W.3d 544 (Mo.App. W.D., 2000).
However, the court reversed a jury award of punitive damages where there was no evidence of willful misconduct, malice, or fraud, and the language of the jury instructions suggested the award was given for "mental anguish, pain & suffering." See Carroll v. Rock , 469 S.E.2d 391 (Ga.App., 1996). Also, at least one court has held that punitive damages cannot be awarded against a city without statutory authorization. See 18 E. McQuillin, Municipal Corporations, § 53.18a, at 220-21 (3d ed. 1984); Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759-2760, 69 L.Ed.2d 616, 632 (1981).
It is important to note that the rules for awarding punitive damages may change based on the state. At least one Minnesota case disallowed punitive damages, because it was based upon damage to property, a pet, rather than damages to a person, Soucek v.Banham , 524 N.W.2d 478, 1994 Minn.App. LEXIS 1191, although another Minnesota case has since decided to allow punitive damages, Molenaar v. United Cattle Co., 553 N.W.2d 424, 1996 Minn. App.LEXIS 870.
Mental Anguish or Suffering of the Owner
Another type of non-economic injury that can be available for plaintiffs to claim is their mental pain and suffering from the injury or death of their pets. Although initially reluctant to recognize damages for mental pain, many courts have recently begun to accept this concept, though they are still wary of its subjectivity. Because courts have drawn the line at various places, generalizations are difficult and the development of this legal issue is far from settled.
The most conservative jurisdictions will only allow recovery for mental distress if the owner was physically touched by the same action that harmed the pet (e.g. if both are hit by a car) and if the owner’s mental distress had physical manifestations such as migraines and stomach cramps.
Some jurisdictions have adopted a “zone of danger” policy in which the owner does not have to be physically touched by the same action, but must be close enough to the threat that she would have feared for her own safety. Physical manifestations of the mental distress are usually still necessary.
Still other jurisdictions have even gone so far as to remove the “zone of danger” requirement, as long as the owner has observed her pet being injured and shows physical symptoms of mental anguish. Most courts will not allow recovery if the owner does not view the accident, even if she finds her injured pet immediately afterward. Exceptions to this rule are usually only made if the owner reacted with extreme physical symptoms or if the wrongful actor was guilty of intentional and malicious conduct that would support a punitive damages claim.
Few of the most liberal jurisdictions have fully recognized the tort of freedom from mental distress to allow recovery even if there was no observation of the accident and no physical symptoms resulting from the mental distress. For example, in Campbell v. Animal Quarantine Station , 632 P.2d 1066 (Hawaii, 1981), the court awarded mental distress damages to a family whose dog was killed while transported in an unventilated van. The family only learned of the dog’s death by phone and showed no physical symptoms of distress.
Even in jurisdictions which allow recovery for mental distress, courts will sometimes bar recovery in animal cases because “animals are personal property” and “emotional damages cannot be had for the negligent destruction of personal property.” See Fackler v. Genetzky , 595 N.W.2d 884 (Neb.,1999); Roman v. Carroll , 621 P.2d 307 (Ariz.App., 1980).
Other courts have implied that recovery for mental distress would be allowed in animal cases. The causes of action in these cases were dismissed not because the injury was to personal property (to wit, pets), but because the owners failed to show physical symptoms. See Carroll v. Rock , 469 S.E.2d 391 (Ga.App.,1996), Gill v. Brown , 695 P.2d 1276 Idaho App.,1985). Moreover, states courts in Hawaii , Florida , Kentucky , Idaho , Texas , and Washington have all explicitly allowed for mental anguish damages in animal cases.
When the infliction of emotional distress is intentional, courts appear more willing to honor the claims. Recently, the state of Washington answered the question of emotional distress damages for the malicious injury to a companion animal left open in a previous case. In Womack v. Von Rardon , 135 P.3d 542 (Wash. 2006), the Court of Appeals held that for the first time in Washington malicious injury to a companion animal can support a claim for emotional distress damages. In this case, two minors had taken the plaintiff's cat from her front porch and set it on fire. The court found specifically that harm to a person's emotional well-being may be caused by malicious injury to his or her pet.
The Restatement of Torts establishes that the elements of a claim of intentional infliction of emotional distress are that the offending party, through extreme or outrageous conduct, must intentionally or recklessly cause severe emotional distress or bodily harm to another. The actor's offensive conduct must be very similar to that which would sustain a claim for punitive damages. A showing of the impact on the owners is unnecessary where the conduct is intentional, malicious and "outrageous.” See Gill v. Brown , 695 P.2d 1276 Idaho App.,1985), where the court allowed an intentional infliction of emotional distress claim in the case of the negligent and reckless shooting of a pet donkey; But see Richardson v. Fairbanks North Star Borough 705 P.2d 454 (Alaska, 1985), where an animal shelter violated their own ordinance by killing a dog within the first two days of its confinement, despite the fact that the owners had informed the shelter they were coming to pick him up. The court found that the severity of the Richardsons' emotional distress did not warrant a claim of intentional infliction of emotional distress.
Loss of Companionship
Closely related to damages for mental distress felt in the immediate aftermath of the injury are damages for loss of companionship, which tend to be a long term feeling of loss.
Many courts flatly refuse to entertain such claims. See Gluckman v. American Airlines, Inc., 844 F.Supp. 151 (S.D.N.Y.,1994), denying cause of action for loss of companionship after American Airlines’ negligence resulted in the death of plaintiff’s dog in cargo hold, and Harabes v. Barkery, Inc., 791 A.2d 1142 (N.J.Super.L.,2001), expressing concerns about the sheer number of potential litigants and possible unfairness of the financial burden placed on defendants.
Other courts have allowed such claims, though they are still in the minority. See Wertman v. Tipping , 166 So2d 666 (Fla. 1964), which allowed claim for “peculiar value” of dog, Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill. App.3d 818, 510 N.E.2d 1084 (1987), which disallowed loss of companionship as a separate cause of action, but would have allowed it as part of the damage calculation and distinguished it from recovery for emotion distress which requires the owner to be in the zone of danger, and Brousseau v. Rosenthal , 110 Misc2d 1054, 443 N.Y.S.2d 285 (1980), which allowed loss of companionship and loss of protective value damages.