a survey of legal damages available in cases of death of or injury to an animal

A SURVEY OF LEGAL DAMAGES AVAILABLE IN CASES OF DEATH OF OR INJURY TO AN ANIMAL

Cynthia Hodges, J.D., LL.M., M.A.

..................................................... ............................INTRODUCTION 1.........I. LEGAL CLASSIFICATION OF ANIMALS AS PROPERTY 2

................II. ECONOMIC DAMAGES FOR LOSS OF AN ANIMAL 7............................................ ............................ A. Fair Market Value 7

... .............................................. ............................ B. Intrinsic Value 13III. NONECONOMIC DAMAGES ......FOR LOSS OF AN ANIMAL 18

........ A. Emotional Distress and Loss of Companionship Damages 19........................................... ............................ 1. Malicious Injury 20

.................................................... ............................ 2. Negligence 21......................................... ............................ 3. Legislative Action 31

................................................. B. Punitive or Exemplary Damages 33........... .............................................. ............................CONCLUSION 34

INTRODUCTION

Animals are classified as personal property under the common law in all 50 states.1 As a result, when an animal is injured or killed, the standard measure of damages is fair market value. Since most pets have little or no market value, owners may be left with inadequate compensation for their loss.

Some courts have begun to address this inequity and award noneconomic damages, such as loss of companionship and emotional distress suffered by the owner. The majority of states still reject such damages for various reasons, but a few states have broken ranks and provided recovery for such noneconomic damages. States such as Alaska, Florida, Hawaii, Idaho, Kentucky, New York,

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1 Goodby v. Vetpharm, Inc., 2009 VT 52, 186 Vt. 63, 67-68, 974 A.2d 1269, 1272-73 (2009) (citing McDerment v. Taft, 83 Vt. 249, 249, 75 A. 276, 276 (1910)); Fackler v. Genetzky, 257 Neb. 130, 139 (Neb. 1999); Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 274 (Ariz. Ct. App. 2009), review denied (May 20, 2010) (See Harabes v. Barkery, 348 N.J.Super. 366, 791 A.2d 1142, 1144 (Law Div.2001) (citing cases); Margit Livingston, “The Calculus of Animal Valuation: Crafting a Viable Remedy,” 82 Neb. L.Rev. 783, 787-803 (2004) (citing cases); Robin C. Miller, “Damages for killing or injuring dog,” 61 A.L.R. 5th 635, § 3[a] (1998 & Supp.2009) (citing cases)). Leith v. Frost, 387 Ill. App. 3d 430, 436, 899 N.E.2d 635, 640-41 (Ill. App. Ct. 2008), reh'g denied (Jan. 28, 2009) (““Under Illinois law, a dog is considered personal property”); Sherman v. Kissinger, 146 Wash. App. 855, 861, 195 P.3d 539, 542 (Wash. Ct. App. 2008), as amended (Nov. 18, 2008) (“There is no dispute, that as a matter of law, dogs are characterized as personal property”), (citing Mansour v. King County, 131 Wash.App. 255, 267, 128 P.3d 1241 (2006) (“[A]lthough we have recognized the emotional importance of pets to their families, legally they remain in many jurisdictions, including Washington, property.”)).

and New Jersey have entertained claims of emotional distress and loss of companionship and awarded damages beyond market value for the loss of an animal.

This paper discusses tort law in the United States with regard to recovery of damages in cases involving injury or death to pets and other animals. Part I describes the legal classification of animals as property and its impact on damage recovery. Part II explains the valuation methods used in assessing economic damages for the loss of an animal, namely the animal’s fair market value and intrinsic value. Part III discusses non-economic damages that may be available for the loss of a pet, such as emotional distress, loss of companionship, and punitive or exemplary damages. This part also briefly discusses legislative action that provides for the recovery of non-economic losses for animals.

I. LEGAL CLASSIFICATION OF ANIMALS AS PROPERTY

The damages that are available to a plaintiff for the wrongful injury to or death of an animal may be limited by the fact that animals are legally considered to be property.2 It may be true “that some pet owners have become so attached to their family pets that the animals are considered members of the family,”3 but under the common law, animals are considered personal property.4 At one time, the “common law did not consider pets to be property since they were kept merely for pleasure, not for food or work.”5 Now, it is well established that, as a matter of law, pets are

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2 Sonia S. Waisman, Pamela D. Frasch, & Bruce A. Wagman, Animal Law: Cases and Materials 63 (Carolina Academic Press) (3d ed. 2006) (animals are considered to be property in all fifty states). See also Heiligmann v. Rose, 81 Tex. 222, 225 (1891) (“dogs are property”); Reed v. Vickery, 2:09-CV-91, 2009 WL 3276648 (S.D. Ohio Oct. 9, 2009) (“animals are deemed personalty under Ohio law”). Texas courts have continued to classify dogs as property for damage purposes. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 561 (Tex. App. 2004) (citing Zeid v. Pearce, 953 S.W.2d 368 (Tex.App.-El Paso 1997, no writ); Bueckner v. Hamel, 886 S.W.2d 368, 370 (Tex.App.-Houston [1st Dist.] 1994, writ denied); see also Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex.Civ.App.-Fort Worth 1981, no writ) (refusing to appoint managing conservator of pet dog in divorce case, observing that “[a] dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.”); Greives v. Greenwood, 550 N.E.2d 334, 338 (Ind. Ct. App. 1990) (“domestic cattle are regarded as property”).

3 McMahon v. Craig, 176 Cal. App. 4th 222, 1514, 97 Cal. Rptr. 3d 555, 564 (Cal. Ct. App. 2009), as modified on denial of reh'g (Aug. 31, 2009)

4 Goodby v. Vetpharm, Inc., 2009 VT 52, 186 Vt. 63, 67-68, 974 A.2d 1269, 1272-73 (2009) (citing McDerment v. Taft, 83 Vt. 249, 249, 75 A. 276, 276 (1910)); Fackler v. Genetzky, 257 Neb. 130, 139 (Neb. 1999).

5 Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 274 (Ariz. Ct. App. 2009), review denied (May 20, 2010) (citing Peter Barton & Frances Hill, “How Much Will You Receive in Damages from the Negligent or Intentional Killing of Your Pet Dog or Cat?,” 34 N.Y.L. Sch. L.Rev. 411, 411 n. 3 (1989)).

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characterized as personal property,6 and the majority of jurisdictions in the United States classify them as such.7

To illustrate animals’ legal status as property, one may consider the context of bailments, which can only exist for personal property.8 A bailment “is a legal relationship created by the delivery of personal property by one person to another in trust for a specific purpose, pursuant to an express or implied contract to fulfill that trust.”9 If the bailee (person receiving the property) must only care for the bailed property, such as boarding an animal in a kennel, the bailee is under a duty to use ordinary diligence in providing that care and would be liable for ordinary neglect.10 The standard of ordinary diligence, or reasonable care, is best described as the same level of care that a person would provide to their own property under similar circumstances.11 This standard of care applies to animals, as they are regarded as property. As personal property, an owner has an action and remedy against a tortfeasor for the damages resulting from injury inflicted upon an animal.12 Consistent with damages for other personal property, “the measure of damages for

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7 Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 274 (Ariz. Ct. App. 2009), review denied (May 20, 2010) (See Harabes v. Barkery, 348 N.J.Super. 366, 791 A.2d 1142, 1144 (Law Div.2001) (citing cases); Margit Livingston, “The Calculus of Animal Valuation: Crafting a Viable Remedy,” 82 Neb. L.Rev. 783, 787-803 (2004) (citing cases); Robin C. Miller, “Damages for killing or injuring dog,” 61 A.L.R. 5th 635, § 3[a] (1998 & Supp.2009) (citing cases)). Leith v. Frost, 387 Ill. App. 3d 430, 436, 899 N.E.2d 635, 640-41 (Ill. App. Ct. 2008), reh'g denied (Jan. 28, 2009) (“Under Illinois law, a dog is considered personal property”); Sherman v. Kissinger, 146 Wash. App. 855, 861, 195 P.3d 539, 542 (Wash. Ct. App. 2008), as amended (Nov. 18, 2008) (“There is no dispute, that as a matter of law, dogs are characterized as personal property”).

8 Katie J. L. Scott, “Bailment and Veterinary Malpractice: Doctrinal Exclusivity, or Not?,” 55Hastings L.J. 1009, 1017 (2004).

9 Scott, supra at 1018.

10 Id.

11 Id.

12 Heiligmann v. Rose, 81 Tex. 222, 225 (1891) (“dogs are property, and that an owner has his action and remedy against a trespasser for the damages resulting from injuries inflicted upon them”).



injury to, or destruction of, an animal is the amount which will compensate the owner for the loss and thus return him, monetarily, to the status he was in before the loss.”13

The bailed property status of a horse is demonstrated in David v. Lose, 7 Ohio St. 2d 97 (1966). In this case, a broodmare had to be destroyed after injuring herself at the bailees’ breeding farm. The mare’s owner was entitled to economic damages because the bailees did not meet their burden of establishing a legal excuse for breaching their bailment contract with the bailor (owner) when they failed to return the mare (bailed property) undamaged.14

Despite animals’ property status, pets have special characteristics as personal property,15 and generally do not fit neatly within traditional property law principles.”16 For example, “pets differ in significant respects from household goods.”17 “A companion dog is not a fungible item, equivalent to other items of personal property.”18 The ownership interest in “domestic pets is of a highly qualified nature” due to the legal constraints the law imposes.19 Unlike inanimate

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13 Snyder v. Bio-Lab, Inc., 94 Misc. 2d 816, 818 (N.Y. Misc. 1978).(“As with personal property generally, 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 him, monetarily, to the status he was in before the loss”). See also Goodby v. Vetpharm, Inc., 2009 VT 52, 186 Vt. 63, 67-68, 974 A.2d 1269, 1272-73 (2009) (“The measure governing damages to personal property is the property's ‘fair market value before the injury less fair market value after the injury’”); Phillips v. N. Carolina State Univ., 697 S.E.2d 433, 436-37 (N.C. Ct. App. 2010). The appropriate measure of damages is a question of law, whereas the amount of damages is a question of fact. Sherman v. Kissinger, 146 Wash. App. 855, 873-74 (2008), as amended (Nov. 18, 2008) (““The appropriate measure of damages for personal property is a question of law, reviewed de novo... The amount of damages is a question of fact and the fact finder has the ultimate authority to weigh the evidence and determine the amount of damages in a particular case”). Under McCurdy, the plaintiff has the burden of producing evidence to establish which measure of damages applies and the amount of damages. Sherman at 861.

14 David, 7 Ohio St. 2d 97.

15 Goodby v. Vetpharm, Inc., 2009 VT 52, 186 Vt. 63, 68, 974 A.2d 1269, 1272-73 (2009) (See, e.g., Lamare v. N. Country Animal League, 170 Vt. 115, 122, 743 A.2d 598, 602 (1999) (discussing the nature of dogs as “ highly qualified” property subject to “limitation and control,” but noting that the value of a dog “derives from [its] relationship with its human companions”); Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (stating that pets are a unique type of personal property due both to their emotional value to humans and because they are subject to a high degree of regulation)).

16 Morgan v. Kroupa, 167 Vt. 99, 103 (1997).

17 Brinton v. Codoni, 148 Wash. App. 1034 (Wash. Ct. App. 2009) review denied, 166 Wash. 2d 1029, 217 P.3d 336 (2009)

18 Scheele v. Dustin, 2010 VT 45, 998 A.2d 697, 701-02 (Vt. 2010) (quoting Rabideau, 2001 WI 57, ¶ 3, 243 Wis.2d 486, 627 N.W.2d 795.)

19 Id. at 704.

objects, pet owners do not enjoy unfettered use of their property.20 For example, a person can do whatever he wants to his couch, but he faces legal consequences if he abuses his pet.21

Some courts have struggled with the notion that animals are property.22 There seems to be a conflict between the old, established rule that animals are property and the changing view towards animals as being more than property. The Wisconsin Supreme Court was “uncomfortable with the law's cold characterization of a dog ... as mere ‘property.’”23 Some courts feel that the term, “property,” “inadequately and inaccurately describes the relationship between” people and their pets.24 Labeling a pet “property” fails to describe the value human beings place upon the companionship that they enjoy with a pet.25 “We have come a long way from the old common law concept of a dog not even being considered property. Not only is he more than property today, he is the subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man’s best friend.”26 “To say [that a dog] is a piece of personal property and no more is a repudiation of our humaneness.”27

Justice Andell wrote in his concurring opinion in Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Ct. App. 1994) that he considered animals “to belong to a unique category of ‘property’ that neither statutory law nor case law has yet recognized.”28 The court in Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc. 2d 530, 531, 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979) overruled prior precedent to hold “that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.”29 One Vermont court went so far as to say “[p]ets occupy a legal realm somewhere between chattel and children.”30

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20 Id.

21 Coleman at 11.

22 Waisman, supra at 63.

23 Scheele at 701-02.

24 Rabideau, 2001 WI 57 at ¶ 3.

25 Id.; Scheele at 701-02 (Vt. 2010).

26 Katsaris, 180 Cal. App. 3d 256, 269-70 (Cal. Ct. App. 1986) (Judge Sabraw’s dissent).

27 Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc. 2d 530, 531, 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979)

28 Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Ct. App. 1994) Justice Andell (concurrence)

29 Corso at 531.

30 Scheele at 704.

Most courts, however, seem to feel bound by precedent that explicitly classifies animals as personal property.31 Nonetheless, “courts must fashion and apply rules that recognize their [animals’] unique status....”32 Justice Andell in Bueckner admonished that

The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.33

Courts “are not blind to the special place [pets] hold in our lives”34 and “should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members.”35 Texans, for example, “view dogs more as companions, friends, or even something akin to family than as an economic tool or benefit.”36 “Many people who love and admire dogs as family members do so because of the traits that dogs often embody. These represent some of the best of human traits, including loyalty, trust, courage, playfulness, and love.”37 Courts have recognized that emotional bonds can form between humans and “with a variety of animals that can be called their pets,”38 including farm and work animals.39 The love and loyalty a pet provides creates a strong emotional bond between an owner and his or her pet.40

Courts acknowledge the suffering people experience when a beloved pet is injured or killed.41 “It is common knowledge among pet owners that the death of a beloved dog or cat (or other domestic animal) can be a great loss.”42 “[T]he loss of a dog leaves memories of loyalty and

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32 Morgan, 167 Vt. at 103.

33 Bueckner, 886 S.W.2d 368 (Justice Andell’s concurrence).

34 Scheele at 704.


36 Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 564 (Tex. App. 2004).


38 Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 278 (Ariz. Ct. App. 2009), review denied (May 20, 2010) (citing Rabideau v. City of Racine, 243 Wis.2d 486, 627 N.W.2d 795, 802 (2001)).

39 Kaufman at 279; Goodby, 186 Vt. at 69.

40 McMahon, 97 Cal. Rptr. 3d at 568; Scheele, 998 A.2d at 704.

41 See Kaufman at 279; Scheele at 704.

42 Bueckner, 886 S.W.2d at 376.

devotion seldom equaled in any other relationship.”43 “Losing a beloved pet is not the same as losing an inanimate object, however cherished it may be. Even an heirloom of great sentimental value, if lost, does not constitute a loss comparable to that of a living being. This distinction applies even though the deceased living being is a nonhuman.”44 “[P]eople are prepared to make great sacrifices for the well-being and continued existence of their household pets, to which they have become deeply attached.”45 “They feel a moral obligation toward these animals.”46 Emotionally, they have no choice but to lay out great expenditures when these animals suffer a serious physical injury.47

Generally, animal owners can recoup the economic damages they suffer in the loss of an animal. In more liberal jurisdictions, they can also recover non-economic damages. The next section describes how courts evaluate the economic loss of an animal by calculating the fair market value, or in the absence of a market value, the animal’s intrinsic value.

II. ECONOMIC DAMAGES FOR LOSS OF AN ANIMAL

A. Fair Market Value

When personal property is destroyed by the tortious conduct of another, the measure of damages is the fair market value of the property at the time of its destruction.48 The measure of damages for injury to or death of an animal will usually be the fair market value of the animal (if it has a market value) immediately prior to the wrongful act.49 “Market value” has been defined as the “reasonable sum of money which the property would bring on a fair sale, by a man willing to sell, but not obligated to sell, to a man willing to buy, but not obligated to buy.”50 The proper

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44 Bueckner, 886 S.W.2d at 377-78.

45 Leith v. Frost, 387 Ill. App. 3d 430, 436, 899 N.E.2d 635, 641 (Ill. App. Ct. 2008), reh'g denied (Jan. 28, 2009)

46 Id.

47 Id.

48 Gill v. Brown, 107 Idaho 1137, 1138, 695 P.2d 1276, 1277 (Idaho Ct. App. 1985) (citing Bratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969); Skaggs Drug Centers, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965)).

49 Phillips v. N. Carolina State Univ., 697 S.E.2d 433, 436-37 (N.C. Ct. App. 2010) (“Where the animal has a market value, the market value at the time of the loss ... will generally be the measure applied”); Katie J. L. Scott, Bailment and Veterinary Malpractice: Doctrinal Exclusivity, or Not? 55 Hastings L.J. 1009, 1012-13 (2004); Greives v. Greenwood, 550 N.E.2d 334, 338 (Ind. Ct. App. 1990)

50 Sherman, 146 Wash. App. at 871; Reed, 2009 WL 3276648 (limiting the amount of damages to the difference between a dog’s fair market value before and after the loss).

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calculation has been described as the difference in value of the property immediately before and immediately after the injury, and any amount reasonably expended as a proximate result of the wrongful act.51 Even if “our bond with pets often, if not usually, transcends their value to strangers in the marketplace,”52 the presumptive measure of damages for the loss of a pet would be the fair market value of the animal, prior to death, less fair market value after death.53 This would be calculated according to the time and place where it was killed.54 The measure of damages for loss of livestock would be the value of the animal alive just prior to its loss, minus the value of the animal's carcass.55

If the animal is injured but not destroyed, the measure of damages would be the difference between the market value before the injury and its market value after the injury.56 For example, in Reed v. Vickery, 2:09-CV-91, 2009 WL 3276648 (S.D. Ohio Oct. 9, 2009), a veterinarian performed a pre-purchase examination on a horse for prospective buyers and indicated that the horse was sound. However, a different veterinarian at the same clinic had injected the horse to mask lameness several months before, which the veterinary facility failed to disclose. The measure of damages was the difference between the horse’s fair market value before it became chronically lame and after, plus veterinary costs incurred for treating the horse.

Not all judges have agreed with valuing animals at fair market value. Justice Andell wrote in a concurring opinion in Bueckner v. Hamel, 886 S.W.2d 368, 373 (Tex. App. 1994:

I do not agree that an animal's market value, when there is one, necessarily represents the proper measure of damages to compensate pet owners for their loss. A domestic pet with no breeding potential might be worth only $10 in the market to someone else who wants it as a pet. But the animal could be a highly valued companion whose loss would be

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51 Greives, 550 N.E.2d at 338 (citing Universal Carloading & Distributing Company, Inc. v. McCall, 107 Ind.App. 479, 25 N.E.2d 253, 254 (1940)).

52 Goodby, 186 Vt. at 69; Kaufman, 222 P.3d at 279 (“It is beyond dispute that our bond with pets often, if not usually, transcends their value to strangers in the marketplace”).

53 Brinton v. Codoni, 148 Wash. App. 1034 (Wash. Ct. App. 2009) review denied, 166 Wash. 2d 1029, 217 P.3d 336 (2009) (citing Sherman, 146 Wn.App. 870 (citing McCurdy v. Union Pac. R. Co., 68 Wash.2d 457, 467, 413 P.2d 617 (1966) and Mansour v. King County, 131 Wash.App. 255, 267, 128 P.3d 1241 (2006)); Kaufman at 274-75 (“Arizona law is consistent with the majority position classifying animals as personal property and limiting damages for their negligent injury or death to their fair market value”}; Goodby at 1271.

54 Young's Bus Lines v. Redmon, 43 S.W.2d 266, 268 (Tex. Civ. App. 1931).

55 Phillips, 697 S.E.2d at 438 (citing Griner v. Smith, 43 N.C.App. 400, 259 S.E.2d at 389 (1979)). In North Carolina, the proper measure of consequential damages for reproducing livestock is the value of the animal under North Carolina law at the time of death.

56 Sherman, 146 Wash. App. at 870-71 (citing McCurdy, 68 Wash.2d at 467, 413 P.2d 617).

deeply felt. People who love and care for animals should not be forced to accept as compensation for their loss the amount that the animal would bring in the market.57

Nonetheless, the fair market value remains the ceiling on the amount of damages that can be recovered in many jurisdictions.58 “Since dogs have legal status as items of personal property, courts generally limit the damage award in cases in which a dog has been wrongfully killed to the animal's market value at the time of death.”59 Any special value, particular qualities, or capabilities are generally considered as factors making up the market value.60 These may include the animal’s training, age, papered status, and relevant market community.61 Therefore, “[a] pet may ... increase in value over time depending on its pedigree, training, awards, and other factors.”62 For example, in Dillon v. O'Connor, 68 Wash.2d 184, 412 P.2d 126 (1966), the defendant negligently killed the plaintiff's trained hunting dog while driving his car. The Washington Supreme Court allowed the jury to consider the dog's training and pedigree in determining the fair market value, but did not allow damages over and above the dog’s fair market value.

Fair market value may include a component for present valuation of future profits,63 such as when an animal is carrying unborn young (although the young generally have no value apart from the mother).64 Some jurisdictions have allowed damages awards for lost profits resulting from injury to or destruction of animals.65 For example, the court in King v. Karpe (1959) 170

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57 Bueckner at 374.

58 Leith, 387 Ill. App. 3d at 436 (citing Wall v. Amoco Oil Co., 92 Ill.App.3d 921, 924, 48 Ill.Dec. 432, 416 N.E.2d 705, 708 (1981) (“when the cost of repairs exceeds the fair market value of the personal property, the value of the personal property becomes the ceiling on the amount of damages which can be recovered”). However, Ohio does not appear to have such a cap. See Reed, 2:09-CV-91, 2009 WL 3276648 (“Even if Ohio law would cap economic damages at the horse's market value, the Reeds would not be barred from recovering such damages since the amount they are seeking ($20,000.00) is less than the amount they paid for the horse ($25,000.00”).

59 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985) (citing Green v. Leckington, 192 Or. 601, 236 P.2d 335, 337 (1951)).

60 Phillips, 697 S.E.2d at 436-37.

61 Brinton, 148 Wash. App. 1034.

62 Id. (“While household goods generally depreciate over time and tend to have little or no value in secondhand markets, a pet may actually increase in value over time depending on its pedigree, training, awards, and other factors”).

63 McPherson v. Schlemmer, 230 Mont. 81, 84, 749 P.2d 51, 52

64 Phillips, 697 S.E.2d at 436-37.

65 New Hampshire Ins. Co. v. Farmer Boy AG, Inc., IP 98-0031-T/G, 2000 WL 33125128 (S.D. Ind. Dec. 19, 2000) (See McPherson, 749 P.2d at 53-54; Mills v. Guthrie County Rural Elec. Coop. Ass'n, 454 N.W.2d 846, 851-52 (Iowa 1990); Missouri Farmers Ass'n v. Kempker, 726 S.W.2d 723, 725-26 (Mo.1987); Park v. Moore Mfg. Co ., 241 P.2d 914, 921-22 (Utah 1952)).

Cal.App.2d 344, 338 P.2d 979 affirmed the plaintiff's recovery for the peculiar value of a cow destroyed by order of the defendant's veterinarian. Although defendant contended the value of the cow was for its meat, approximately $200, the plaintiff claimed the cow had great value in breeding, and was worth approximately $10,000. In upholding the jury's award of $5,000, the court noted the evidence supporting the award under California Civil Code section 3355 included the high quality and value of the calves the cow had produced, and plaintiff's specific need for those calves.

There may usually be no recovery after a replacement of comparable capacity has been or could have been acquired, such as for future milk and calf production of a cow which has been disposed of.66 In North Carolina, the proper measure of damages for reproducing livestock is: (1) the value of the animal at the time of death, and (2) the consequential damages, if any, that a plaintiff may incur between the time of the death of the animal until such time that a replacement of like kind and quality can be acquired.67 This rule is consistent with the duty to mitigate damages that requires an injured plaintiff in a tort action to exercise reasonable care and diligence to avoid or lessen the consequences of the defendant's wrong.68 Several cases elaborate on the limitations on recovery in such cases.

In Park v. Moorman Mfg. Co., 121 Utah 339 [241 P.2d 914] (1952), the plaintiff’s laying chickens had to be destroyed after using defendant's self-feeding system. The plaintiff was entitled to both the market value of the chickens destroyed and the lost profits “for the period in which there was a loss of use before the replacements could prudently be obtained....”69 The court stated:

[W]here property is destroyed the true measure of damages is either the market value of that property immediately before the destruction or its replacement cost, plus its use value, until it can be replaced within the time required of a prudent plaintiff in exercise of his duty to mitigate damages, less any salvage value of the destroyed property.70

In Snyder v. Bio-lab [Bio-Lab] Inc. [94 Misc.2d 816] 405 N.Y.S.2d 596, 597-98 (1978), the plaintiffs’ milking cows had been injured by a teat dip used to treat infectious mastitis. The cows could no longer be used for milk and were sent to slaughter. The plaintiff was entitled to recover

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66 Missouri Farmers Ass'n v. Kempker, 726 S.W.2d 723, 726 (Mo. 1987) (citing State v. Morison, 148 Colo. 79, 365 P.2d 266, 272-73 (1961); Snyder v. Bio-Lab, Inc., 94 Misc. 816, 405 N.Y.S.2d 596 (N.Y.Sup.Ct.1978); Kintner v. Claverack Rural Electric Co-operative, Inc., 329 Pa.Super. 417, 478 A.2d 858, 861-62 (1984).)

67 Phillips, 697 S.E.2d at 438.

68 Id. at 436-37 (citing N.C. Gen.Stat. §§ 143-291 through -300.1A).

69 McPherson, 230 Mont. at 85; Phillips, 697 S.E.2d at 436-37.

70 Park v. Moorman Mfg. Co., 121 Utah 339, 353, 241 P.2d 914, 921 (1952).

the fair market value of the slaughtered cows, less their salvage value, from the manufacturer.71 The plaintiffs were also entitled to recover the loss of profit for the time period required to replace the slaughtered cows with cows of equal quality.72 They could also recover the loss in milk production caused by the incident's negative impact on the milk production level of the remaining cows.73

The Supreme Court of Missouri agreed with Snyder in Missouri Farmers Ass'n v. Kempker, 726 S.W.2d 723, 726 ( [Mo.]1987), stating that

When cows in a milk producing herd are injured in such a way that their production of calves and milk is interfered with, there may be recovery for loss of milk and calf production until a cow is sold or disposed of, and for loss of subsequent production until a satisfactory replacement cow could be obtained.74

In McPherson v. Schlemmer, 230 Mont. 81, 749 P.2d 51 (1988), the plaintiff cow breeder was entitled to the fair market value and lost profits from the time his cows were killed until replacement cows of like quality could reasonably be purchased.75

In Phillips v. North Carolina State University, the University was negligent in a broodmare's death during transport. The Court of Appeals held that the consequential damages were the loss of profits from the mare’s foal for the period from the date of loss until a comparable replacement had been or could have reasonably been acquired.76 In this case, the owners were entitled to the mare’s replacement cost plus the lost profit for a single breeding cycle (value of one foal), even though the horse was not pregnant at the time of her death.77

Other jurisdictions have held that the measure of damages arises from the animal itself, not from its future progeny78 and that damages for unborn animals are not recoverable as a matter of law.79

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71 Phillips, 697 S.E.2d at 436-37.

72 Id.

73 Snyder, 94 Misc. 2d at 819.

74 Missouri Farmers Ass'n, 726 S.W.2d at 725.

75 McPherson, 230 Mont. at 85-86.

76 Phillips, 697 S.E.2d at 436-37 (citing N.C. Gen.Stat. §§ 143-291 through -300.1A).

77 Phillips at 697 S.E.2d at 434-36.


79 New Hampshire Ins. Co., IP 98-0031-T/G, 2000 WL 33125128 (see Winingham v. Anheuser-Busch, Inc., 859 F.Supp. 1019, 1021-22 (N.D.Tex.1994) (applying Texas law); Rosche v. Wayne Feed Div. Continental Grain Co., 447 N.W.2d 94, 96 (Wis.Ct.App.1989); Pagel v. Yates, 471 N.E.2d 946, 952-53 (Ill.App.Ct.1984); Nationwide Horse Carriers, Inc. v. Johston, 519 S.W.2d 163, 168-69 (Tex.App.1974)).

For example, the Indiana Supreme Court has held that the measure of damages for loss of domestic cattle is the animal's market value immediately before the alleged wrongful act.80 Although the Indiana Supreme Court did not squarely hold that damages were not recoverable for aborted and stillborn calves, it said that “the basic measure of damages for loss of cows is the market value of the animal, if there is a market value, immediately prior to the wrongful act.”81 This was interpreted by the Southern District of Indiana to mean that such damages are not recoverable as a matter of law because Indiana “law does not allow speculative damages and an award for the value of future unborn calves would be based on conjecture.”82 In addition, “[w]here damages are allowed for injury to or loss of cows, damages cannot also be allowed for the loss of unborn calves carried by them, since unborn calves have no market value and a separate allowance for them would amount to double damages.”83

If an animal has no market value (such as with pets generally 84), the cost of “repair” is usually the measure of damages.85 “[W]hen an injured pet dog with no discernible 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.”86 If returning the animal to good health is not possible, then the measure of damages is the cost to replace or reproduce it.87

If an animal that has no market value is killed, then courts may look to its intrinsic value to calculate a damage award.

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80 New Hampshire Ins. Co., IP 98-0031-T/G, 2000 WL 33125128.

81 Id. (citing Reed, 621 N.E.2d at 1075).

82 Greives, 550 N.E.2d at 338; New Hampshire Ins. Co., IP 98-0031-T/G, 2000 WL 33125128 (“[T]he Indiana Supreme Court would hold that damages for future unborn litters are not recoverable when damages are recovered for the injury to or destruction of the pregnant sows”).

83 Greives at 338 (citing 3A C.J.S. Animals § 313 (1973); Texas Pipe Line Co. v. Sheffield, Tex.Civ.App., 99 S.W.2d 684, 685 (1936)).

84 Reed, 2:09-CV-91, 2009 WL 3276648; Leith, 387 Ill. App. 3d at 436 (citing Jankoski, 157 Ill.App.3d at 820, 110 Ill.Dec. 53, 510 N.E.2d at 1086 “Illinois courts recognize that certain items of personal property, such as heirlooms, photographs, trophies, and pets have no market value”).

85 See Leith at 434.

86 Leith at 436-37 (adopting the rationale of Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458, 463, 131 P.3d 1248, 1252 (2006)).

87 Brinton, 148 Wash. App. 1034 (citing Sherman, 146 Wash.App. at 871) (“However, if the plaintiff demonstrates that the dog has no market value, then the measure of damages is the cost to replace or reproduce the dog”).

B. Intrinsic Value

The general rule of market value may “be inadequate for assessing damages for the loss of domestic pets.”88 If the animal cannot be reproduced or replaced and has no market value,89 then its intrinsic value may be awarded,90 or at least considered in determining damages.91 Intrinsic value is “the true, inherent, or essential value of the thing itself.”92 It is “an inherent value not established by market forces; it is a personal or sentimental value”93 that comprises the actual value to the owner.94 Intrinsic damages may be “some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services” of the animal.95

Some jurisdictions apply the “value to owner” theory, which states that if “goods have no market value, their actual worth to the owner is the test, and when they have but little or no market value, and are of special value to the owner, he may recover that.”96 The animal’s peculiar value to the owner may be considered because factors exist “apart from those entering into exchange value which cause the subject matter to be more desirable to the owner than to others.”97

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88 Bueckner, 886 S.W.2d at 373 (concurrence).

89 Sherman, 146 Wash. App. at 871 (citing McCurdy, 68 Wash.2d at 469, 413 P.2d 617).

90 Bueckner, 886 S.W.2d at 375 (concurrence citing Heiligmann, 81 Tex. 222).

91 Brinton, 148 Wash. App. 1034 (citing Sherman, 146 Wash.App. at 871, 195 P.3d 539) (“If the dog cannot be reproduced or replaced, the dog's value to the owner, also referred to as “intrinsic” value, may be considered in determining damages”); Sherman, 146 Wash. App. at 870-71 (citing McCurdy, 68 Wash.2d at 467, 413 P.2d 617); Young's Bus Lines v. Redmon, 43 S.W.2d 266, 268 (Tex. Civ. App. 1931); Leith, 387 Ill. App. 3d at 436-37 (citing Jankoski, 157 Ill.App.3d at 820, 110 Ill.Dec. 53, 510 N.E.2d at 1086, quoting Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 1026, 327 N.E.2d 346, 355 (1975)); Young's Bus Lines, 43 S.W.2d at 267 (citing 13 Encyc. Evidence, 510; Continental Oil & Cotton Co. v. Wristen & Johnson (Tex. Civ. App.) 168 S. W. 395; Heiligmann, 81 Tex. at 225.

92 Bueckner, 886 S.W.2d at 373(citing Black's Law Dictionary 739 (6th Ed.1990)).

93 Petco Animal Supplies, Inc., 144 S.W.3d at 563-64 (citing Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex.App.-Houston [14th Dist.] 1992, no writ)).

94 Young's Bus Lines, 43 S.W.2d at 268; Sherman, 146 Wash. App. at 871 (citing McCurdy, 68 Wash.2d at 469, 413 P.2d 617 “If the jury, having been instructed on market value, nevertheless finds that there was no market value, then [the property's] actual or intrinsic value, including consideration of its value to the owner, may be used by the jury in fixing damages”).

95 Heiligmann, 81 Tex. at 225.

96 Kaufman, 222 P.3d at 277 (citing Jones v. Stanley, 27 Ariz. 381, 385, 233 P. 598, 599 (1925); see also Devine v. Buckler, 124 Ariz. 286, 287, 603 P.2d 557, 558 (App.1979)).

97 See McMahon, 97 Cal. Rptr. 3d at 567 (quoting comment e to the Restatement Second of Torts, section 911).

A stallion’s racing history, character of his progeny and their racing ability can establish the peculiar value of the horse as a sire.98 The peculiar value of a breeding cow can be established by evidence that the cow’s bloodline “produced good calves particularly valuable for inbreeding, and that plaintiff needed this type of stock to build up her herd.”99 In some cases, the breeding potential may be considered in the value of an animal.100

If a triple crown winning thoroughbred horse were killed the day before it was put out to stud, and there was evidence that the animal was at least potentially fertile, a court might properly consider the pecuniary value of the horse in assessing either its market value (what someone else would pay for it) or its pecuniary value to the owner (reasonably expected stud fees over the life of the animal, discounted to present value). In that instance, the court would look to the animal itself, not to the sales price of its colts, to determine damages.101

In cases involving working dogs, especially those of mixed lineage without a marketable pedigree, courts have based the damage award on the dog's utility.102 In Stephens v. Target Corp., 482 F.Supp.2d 1234 (9th Cir.2007), the court suggested that one way the jury could determine intrinsic damages was to “consider the dog's utility ... in assessing its intrinsic value.”103 Some courts have considered loss of companionship to be an element of a pet’s actual value to the owner.104

In proving intrinsic value, the owner may testify about the value of the property, but his or her testimony is not binding.105 In determining damages, the fact finder must consider the evidence objectively from the perspective of a reasonable owner in the plaintiff's position.106 A plaintiff’s subjective estimation of an animal’s value as a pet is not a valid basis for compensation in some jurisdictions.107

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99 King v. Karpe, 170 Cal. App. 2d 344, 349, 338 P.2d 979 (Cal. Ct. App. 1959) (citing Drinkhouse, 202 Cal. at 378).


101 Id.

102 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985).

103 Sherman, 146 Wash. App. at 872.

104 Brousseau, 443 N.Y.S.2d at 1056.

105 Sherman at 872.

106 Id. (citing James v. Robeck, 79 Wash.2d 864, 869, 490 P.2d 878 (1971)).

107 Richardson, 705 P.2d at 456.

An element of proving damages of “peculiar value” is proof that defendant had knowledge of such peculiar value before he incurred liability for damages.108 For example, California Civil Code section 3355 provides: “Where certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.”109 Several cases expand on animals’ intrinsic value.

In an early Texas case, Heiligmann v. Rose, 81 Tex. 222, 225, 16 S.W. 931, 932 (1891), a trespasser entered onto a dog owner’s property and intentionally and maliciously killed the owner’s three dogs by poison. There was no evidence that the dogs had a market value, but the evidence showed the usefulness and services of the dogs (such as signaling the arrival of visitors), and that they were of special value to the owner.110 The jury could “infer their value when the owner, by evidence, fixes some amount upon which they could form a basis.”111 Heiligmann’s “true rule” defined damages for the loss of a dog as: “(1) market value, if any, and (2) some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.”112 Under Heiligmann, the value could be either the market value of the dogs or their special value.113

A New York court held in Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (1980) that loss of companionship must be considered as an element of the dog’s actual value to the owner.114 The court allowed damages for the loss of companionship for the negligent death of owner’s dog while at a veterinarian’s kennel.

In Leith v. Frost, 387 Ill. App. 3d 430, 430-31, 899 N.E.2d 635, 637 (Ill. App. Ct. 2008), plaintiff dog owners sued the defendant after his Siberian husky entered their backyard and attacked their dachshund. The dog owners were entitled to $4,784 in compensatory damages for veterinary expenses, rather than the dachshund’s fair market value of $200.115 The plaintiffs demonstrated how much the dachshund was worth to them by paying $4,784 for the dog's veterinary care.116

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108 King, 170 Cal. App. 2d at 349.

109 McMahon, 97 Cal. Rptr. 3d at 566.

110 Heiligmann at 225 (“The dogs were of fine breed, and well trained, and one of the Newfoundland dogs was trained to signal the arrival of any person at appellees', who could tell from his bark if the person was man, woman, or child”).

111 Id. at 226.

112 Petco Animal Supplies, Inc., 144 S.W.3d at 561.


114 Brousseau, 443 N.Y.S.2d at 1056.

115 Leith, 387 Ill. App. 3d at 431.

116 Id. at 436-37.

Other jurisdictions do not allow an award of peculiar or sentimental value placed upon the animal by the owner.117 A federal district court in Robinson v. United States (E.D.Cal.2001) 175 F.Supp.2d 1215, 1232, concluded that “[t]estimony regarding the sentimental value of the property, or any speculative valuations of the property must necessarily be excluded.”118

A California court considered an animal's “peculiar” value in Roos v. Loeser (1919) 41 Cal.App. 782, 183 P. 204. The court interpreted California Civil Code section 3355 as meaning that peculiar value refers to a property's unique economic value, not its sentimental or emotional value.119 The elements of a dog's peculiar value included its pedigree, reputation, age, health, and ability to win dog shows.120 “Peculiar value” referred to special characteristics which increase the animal's monetary value, not its abstract value as a companion to its owner.121 As a result, loss of companionship was not an element of a dog’s “peculiar value.”122

A later California case, McMahon v. Craig, agreed, stating that a dog's value as a companion was not recoverable as an element of the dog's “peculiar value” to its owner.123 “Peculiar value” under Civil Code section 3355 refers to an item's characteristics that enhance its economic value to the owner, and does not include the owner's emotional attachment to it.124 Therefore, the plaintiff could not recover damages for loss of companionship based on her dog's peculiar value to her.125

The Texas court in Young's Bus Lines v. Redmon distinguished between a dog's “intrinsic or actual value” (i.e., pecuniary value) which might be recoverable, and the “peculiar or sentimental value placed upon the dog by [the owner], or what he considered the dog worth to him,” which the court deemed to be irrelevant and inadmissible.126 Petco Animal Supplies, Inc. v. Schuster,

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117 Young's Bus Lines, 43 S.W.2d at 268 (stating that sentimental value of animals is generally not admissible); Sherman, 146 Wash. App. at 872.

118 McMahon, 97 Cal. Rptr. 3d at 566-67.

119 Id. at 566.

120 Id.

121 Id.

122 Id.

123 Id. at 557-58.

124 Id.

125 Id.

126 Petco Animal Supplies, Inc., 144 S.W.3d at 564 (quoting 43 S.W.2d 266, 267-68 (Tex.Civ.App.-Beaumont 1931, no writ). See also Zeid, 953 S.W.2d at 369 (citing Heiligmann for proposition that recovery for death of a dog “is the dog's market value, if any, or some special or pecuniary value to the owner that may be ascertained by reference to the dog's usefulness or services.”)).

144 S.W.3d 554, 561 (Tex. App. 2004) followed suit, interpreting Heiligmann to mean that the “special or pecuniary value” of a dog to its owner refers solely to economic value derived from the dog's usefulness and services, not value attributed to companionship or other sentimental considerations.127

Washington plaintiffs have unsuccessfully attempted to extend “the Kimball rule” to animals. In Kimball v. Betts, 99 Wash. 348, 351, 169 P. 849 (1913), the court noted that the market for used household goods is generally inadequate to compensate an owner for the conversion of such goods. The court held that “[w]here household goods, kept for use and not for sale, have been wrongfully converted, it is not necessary to allege and prove that such goods have no market value as a condition precedent to the right to introduce proof of actual value.”128 Applying this rule, the court held the proper measure of damages was the reasonable value of the property to the owner, excluding “any sentimental or fanciful value.”129 No Washington case has extended this rule to pets, however, as the Kimball rule is limited to household goods and personal effects such as furniture and apparel.130 Recent cases have limited pet owners’ damages to fair market value, but have held that damages are not limited to fair market or replacement value as a matter of law. The following cases expound on this point.

In Sherman v. Kissinger, a dog owner sued a veterinarian and the veterinary hospital for negligence and other causes of action after her dog died in their care. The plaintiff sought economic damages for the intrinsic value of a dog, and noneconomic special and general damages.131 Expert testimony indicated that the dog did not have a market value and could not be replaced because of a blood-clotting disorder.132 Such a dog “would not be suitable for sale.”133 Because there were material issues of fact concerning whether there was a market value for the dog, whether the dog could be replaced, and whether plaintiff was entitled to present evidence of the intrinsic value damages for the loss of the dog, the court denied the motion for partial summary judgment to limit damages to the dog’s market value.134

In Sexton v. Brown, 147 Wash. App. 1005 (Wash. Ct. App. 2008), the plaintiffs sued a veterinarian for damages arising from the death of their dog, alleging negligence, breach of

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127 Petco Animal Supplies, Inc., 144 S.W.3d at 561.

128 Kimball, 99 Wash. at 351.

129 Brinton, 148 Wash. App. 1034 (quoting Herberg, 89 Wash.2d at 930-32, 578 P.2d 17 (quoting Kimball, 99 Wash. at 350, 169 P. 849)).

130 Id.

131 Sherman, 146 Wash. App. at 862.

132 Id. at 874.

133 Id.

134 Id. at 875.

bailment, conversion, and trespass to chattels. Because there were material issues of fact on the measure of damages for the loss of the dog, the appellate court reversed the decision that as a matter of law, damages were limited to fair market or replacement value.135

In Brinton v. Codoni, 148 Wash. App. 1034 (Wash. Ct. App. 2009), the plaintiff’s dog died after it was attacked in her yard by a neighbor's dog. The plaintiff sought damages for the loss of her dog’s intrinsic value and utility, as well as her emotional distress and loss of enjoyment of life.136 The plaintiff failed to show that her dog had no fair market value, however, so her damages were limited to its fair market value.137

III. NONECONOMIC DAMAGES FOR LOSS OF AN ANIMAL

The classification of pets as property limits the damages available and may not address some of the injuries suffered by pets and their owners.138 For example, compensatory damages are not usually given for emotional distress caused by the loss of personal property.139 Most courts have refused to extend the common law to allow for the recovery of emotional distress or loss of companionship damages when a pet is negligently injured or killed.140

However, courts realize that people “share enduring, intense, and deeply emotional relationships with their companion animals”141 and recognize that there is an emotional injury rather than an economic, or property-type, loss when a pet is injured or killed.142 A minority of jurisdictions have recognized that the limited damage awards, i.e. market value, are not commensurate with the loss suffered by an owner when a pet is maliciously killed.143 Some courts have begun to expand recovery for pet owners to include damages for emotional distress and loss of companionship, recognizing the relationship is not merely one of property and owner. For

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135 Sexton v. Brown, 147 Wash. App. 1005 (Wash. Ct. App. 2008).


137 Id.


139 McMahon, 97 Cal. Rptr. 3d at 567 (quoting comment e to the Restatement Second of Torts, section 911: “Compensatory damages are not given for emotional distress caused merely by the loss of such things, except that in unusual circumstances damages may be awarded for humiliation caused by such deprivation, as where one is deprived of essential articles of clothing”).

140 Kaufman, 222 P.3d at 278.

141 Coleman, supra at 9.



example, a new tort of loss of companionship in a pet was recognized under Oregon law in Brock v. Rowe, Civil Case No. C002535CV (Or. Cir. Ct., Washington County, filed Oct. 2000).144

A. Emotional Distress and Loss of Companionship Damages

A claim for damages for emotional distress and mental anguish may be asserted in connection with the independent torts of negligent or intentional infliction of emotional distress.145 A claim of intentional infliction of emotional distress requires that the offending party, through extreme or outrageous conduct, intentionally or recklessly causes severe emotional distress or bodily harm to another.146 A plaintiff may recover for mental anguish if the defendant's conduct had been “outrageous” and if the mental anguish suffered had been “severe.”147 In order for the tort of negligent infliction of emotional distress to lie, the actions of the defendant must have caused some physical injury to the plaintiff which accompanies the emotional distress.148

As discussed previously, the measure of damages for the destruction of personal property by the tortious conduct of another is the fair market value of the property at the time of its destruction.149 In the case of injury or death to an animal (including a pet), the majority of jurisdictions use this measure and specifically deny recovery for mental anguish or emotional distress suffered by the property owner.150 This is due to the fact that damages for emotional distress are not allowed for the destruction or injury to personal property.151 This is true even if courts acknowledge the emotional distress pet owner’s suffer over a pet’s death.152 For example,

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145 Gill v. Brown, 107 Idaho 1137, 1138, 695 P.2d 1276, 1277 (Idaho Ct. App. 1985) (citing Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980)).


147 Gill, 107 Idaho at 1138-39 (citing Hatfield v. Max Rouse & Sons, supra; Rasmuson v. Walker Bank & Trust Company, 102 Idaho 95, 625 P.2d 1098 (1981)).

148 Gill, 107 Idaho at 1138.

149 Id. (citing Bratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969); Skaggs Drug Centers, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965)).

150 Gill at 1138; Kaufman, 222 P.3d at 274-75 (See Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479, 514 (2004); 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, 430-31 (2002); 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, 235-37 (2006) (citing cases)); Scott, supra at 1015 (“In most jurisdictions, pet owners cannot recover for their emotional distress from the injury or death of their pet”).


152 Kaufman, 222 P.3d at 273.

Arizona does not allow pet owners to recover emotional distress or loss of companionship damages for the death of a pet.153 Vermont does not recognize noneconomic damages for the malicious destruction of personal property.154 There is no common-law authority in Vermont “that allows plaintiffs to recover noneconomic damages resulting from a defendant's alleged negligent or intentional act resulting in the death of a pet.”155 As a consequence, it does not provide any recovery for plaintiffs' emotional distress based on the death of a pet.156 In Scheele v. Dustin, for example, the Vermont Supreme Court held that Vermont common law did not allow pet owners to recover noneconomic damages for emotional distress resulting from defendant's intentional shooting of their dog.157 Some courts have refused to award such noneconomic damages citing fears of substantial “difficulty in quantifying the emotional value of a companion pet” and the risk that a “tortfeasor will be exposed to extraordinary and unrealistic damage claims.”158

1. Malicious Injury

A minority of jurisdictions allow damages for emotional distress or mental anguish, and loss of enjoyment of life, in connection with the loss of an animal.159 Such damages are generally available only for intentional or malicious interference with property interests.160 In these cases, malicious injury to an animal can support a claim for emotional distress damages.161 In Washington, for example, “an action and remedy for malicious injury to a pet... can support a claim for, and be considered a factor in measuring, a person’s emotional distress damages.”162 The following cases elaborate on when such damages may be available.

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153 Id.

154 Scheele, 998 A.2d at 698-99.

155 Id. at 701-02 (citing Myers, 853 A.2d at 626).

156 Scheele, 998 A.2d at 698-99.

157 Id. at 698.

158 Kaufman, 222 P.3d at 278 (quoting Harabes, 791 A.2d at 1145 (referencing Nichols v. Sukaro, 555 N.W.2d 689, 690 (Iowa 1996), where plaintiffs' expert testified the market value of their dog was $100-$200, and “if a pet is thought of as a family member by its owners, its value is whatever the owner thinks it is”)).

159 Brinton, 148 Wash. App. 1034 (quoting Sherman, 146 Wash.App. at 873).

160 Id.

161 Sherman, 146 Wash. App. at 873 (citing Womack v. Rardon, 133 Wash.App. 254, 263, 135 P.3d 542 (2006)).

162 Womack, 133 Wn. App. at 257.

In City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. 1963), a Texas Court awarded mental anguish damages when a police officer fatally shot a pet dog intentionally and with premeditation.163

In La Porte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964), a dog owner saw a trash collector intentionally hurl a garbage can at her dog that killed it. She was entitled to recover damages for mental distress for the malicious destruction of her dog, because the affection of a dog owner for her dog was a proper element of damages.164 The Florida Supreme Court affirmed the compensatory and punitive damage awards stating:

[W]e 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, irrespective of the value of the animal because of its special training such as a Seeing Eye dog or sheep dog.165

In Banasczek v. Kowalski,10 Pa. D. & C. 3d 94 (Luzerne Cty. 1979), the court allowed recovery for emotional distress after the defendant intentionally shot two of plaintiff’s dogs, stating “we think [it is] the more enlightened view to allow recovery for emotional distress in the instance of malicious destruction of a pet.”166

The court in Rabideau v. City of Racine, 2001 WI 57 (Wis. 2001) allowed a complaint for damages for intentional infliction of emotional distress when a dog owner witnessed a police officer shoot her dog.

The Third Circuit Court of Appeals allowed a claim of emotional distress in Brown v. Muhlenberg Township, 269 F.3d 205 (3d Cir. 2001) where a police officer shot and killed plaintiff’s dogs.

In Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001), a horse owner was awarded emotional distress damages for the wrongful conversion and slaughter of her pet horses.

2. Negligence

In some jurisdictions, “it is well established that a pet owner has no right to emotional distress damages or damages for loss of [the] human-animal bond based on the negligent death or injury

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163 Waisman, supra at 123; Petco Animal Supplies, Inc., 144 S.W.3d at 561-62 (citing Likes, 962 S.W.2d at 497).

164 La Porte v. Associated Independents, Inc., 163 So. 2d 267, 269 (Fla. 1964).

165 Id.


to a pet.”167 Courts in such jurisdictions will deny recovery for emotional distress damages resulting from an animal’s negligent death because plaintiffs may not “maintain a claim for the emotional distress caused by negligent damage to ... property.”168 In Texas, for example, mental anguish damages are not recoverable for negligent property damage as a matter of law.169 This “longstanding Texas rule” barred recovery of damages for mental anguish, as well as pain and suffering, for the loss of a dog in Petco Animal Supplies, Inc. v. Schuster, which was a veterinary negligence case.170 However, grossly negligent property damage can support a claim for mental anguish if there is evidence of some ill-will, animus, or desire to harm the plaintiff personally.171 Absent intentional or malicious conduct, however, emotional distress damages are not available.172 Similarly, plaintiffs may not be entitled to sentimental or loss of companionship damages for an animal in cases of negligence.173

Although pet owners may not usually recover for the mental and emotional distress they or the pet suffered as a result of negligence,174 some jurisdictions have allowed damages for the emotional distress and loss of companionship the owner suffered in cases involving negligence. In such jurisdictions, “[d]amages on a negligence claim are not limited to economic loss damages, and include compensation for mental anguish.”175

A claim for damages for emotional distress and mental anguish may be asserted in connection with the independent tort of negligent infliction of emotional distress.176 To make a prima facie case for negligent infliction of emotional distress, plaintiffs must first make a “threshold showing that [they] or someone close to [them] faced physical peril.”177 Courts may assume that pets qualify as “someone” close to plaintiffs who faced physical peril by virtue of the defendant’s

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168 Scheele, 998 A.2d at 701-02.

169 Petco Animal Supplies, Inc., 144 S.W.3d at 561-62 (citing Likes, 962 S.W.2d at 497).

170 Id. at 561 (citing Zeid, 953 S.W.2d at 369).

171 Id. at 562 (citing Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 753-57 (Tex.App.-Houston [14th Dist.] 1998, no pet.)).


173 Sexton, 147 Wash. App. 1005.

174 Scott, supra at 1015; McMahon, 97 Cal. Rptr. 3d 555 at 560 (“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence... The traditional elements of duty, breach of duty, causation, and damages apply”).

175 McAdams v. Faulk, 2002 WL 700956, 2002 Ark. App. LEXIS 258 (Ark. Ct. App. 2002) at *13.

176 Gill, 107 Idaho at 1138 (citing Hatfield, 100 Idaho 840).

177 Citing Brueckner v. Norwich Univ., 169 Vt. 118 at 125.

negligence.178 After this threshold showing, the remaining elements require that: (1) plaintiffs must have been within the “zone of danger” of the acts imperiling their pets; (2) plaintiffs were subjected to “a reasonable fear of immediate personal injury”; and (3) as a result of such imminent danger to their persons, plaintiffs “suffered substantial bodily injury or illness.”179 For example, in Arizona, a plaintiff in a negligent infliction of emotional distress action must witness an injury to a closely related person, suffer mental anguish manifested as physical injury, and be within the zone of danger.180 To be in the “zone of danger” in Vermont, the plaintiff must be within the zone “of an act negligently directed at him by defendant.”181 If the claimant does not allege any “reasonable fear for [his or] her own safety,” then recovery under the negligent infliction of emotional distress is precluded.182

In some states, such as Idaho, a plaintiff may recover under the tort rule that states, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”183 Under this rule, a plaintiff may recover for mental anguish if the defendant's conduct were “outrageous” and if the mental anguish suffered were “severe.”184 Several cases from various states illustrate when noneconomic damages for negligent actions may be available.

The court in Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (1979) allowed damages beyond market value of a dog for mental distress and anguish suffered by the owner due to the negligent disposal of her dog’s body.

In Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (1980), a dog owner was able to recover damages for loss of companionship in the negligent death of her dog while at a veterinarian’s kennel.

In Campbell v. Animal Quarantine Station, 632 P.2d 1066 (1981), the Hawaii Supreme Court awarded emotional distress damages to the plaintiffs when their pet dog died due to the negligence of personnel at the quarantine station. The court’s decision was based on Hawaii's

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178 Id.

179 Citing Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 139 Vt. 138, 143, 425 A.2d 92, 95 (1980).

180 Kaufman, 222 P.3d at 279 (citing Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 272, 782 P.2d 1162, 1165 (1989); State Farm Mut. Auto. Ins. v. Connolly, 212 Ariz. 417, 423, ¶ 23, 132 P.3d 1197, 1203 (App.2006).)

181 Citing Vaillancourt, 139 Vt. at 143.

182 Goodby, 186 Vt. at 69-71 (citing Vaillancourt at 143).

183 Gill, 107 Idaho at 1138-39 (quoting RESTATEMENT (SECOND) TORTS § 46 (1948)).

184 Id. (citing Hatfield, supra; Rasmuson, 102 Idaho 95).

“unique approach” allowing recovery for “mental distress suffered as the result of the negligent destruction of property.”185

In Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985), the court recognized a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal where the defendant's conduct is extreme or outrageous and causes severe emotional distress.

In Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (1985), the owners of a pet donkey were allowed to bring a claim for intentional infliction of emotional distress after alleging that defendant negligently and recklessly shot and killed their donkey. which caused them to suffer extreme mental anguish and trauma. The allegations that the defendant’s conduct was reckless and that the owners suffered extreme mental anguish and trauma would permit recovery under an intentional infliction of emotional distress cause of action, if proven.186

In Goodby v. Vetpharm, Inc., 2009 VT 52, 186 Vt. 63 (2009), cat owners sued veterinarians and manufacturer of an antibiotic that killed their cats. However, the plaintiffs failed on their negligent infliction of emotional distress claim for several reasons: they were never the objects of the negligent acts of the veterinarians and pharmacy, were never in physical danger themselves, and did not have any reason to fear for their own physical well-being, and thus, were never in the necessary “zone of danger.”187

California law imposes a duty to avoid causing emotional distress in “bystander” situations “in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.”188 The courts have limited “the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress” as follows:

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.’ ”189

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185 Scheele, 998 A.2d at 702 (quoting Campbell v. Animal Quarantine Station, 632 P.2d at 1071).

186 Gill, 107 Idaho at 1139.

187 Goodby, 186 Vt. 63 at 65.


189 Id.

California law does not allow parents to recover for the loss of companionship,190 or loss of affection and society of their children who are injured or killed through the negligence of another.191 Damages are largely limited to loss of earnings or the child's services of economic value.192 Therefore, courts feel “constrained not to allow a pet owner to recover for loss of the companionship of a pet.”193

Courts are reluctant to grant “a judicial expansion of law to recover for loss of a pet [when] the law does not allow for loss of a broad variety of critically loved human beings.”194 Courts have cited a lack of a compelling public policy reason why the law should offer “broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento-all of which can be prized beyond measure, but for which this state's law does not recognize recovery for sentimental loss.”195 Some courts find it downright unreasonable for the law to offer broader compensation for the loss of a pet than for the loss of a person.196 One Arizona court found it inappropriate to expand state common law to allow a pet owner to recover emotional distress or loss of companionship damages because it would offer broader compensation for the loss of a pet than for the loss of a person.197 The Arizona court did

not believe it reasonable to expand tort law to allow a pet owner to recover emotional distress or loss of companionship damages when such damages cannot be recovered for the injury to or loss of close human friends, siblings, and nonnuclear family members such as grandparents, grandchildren, nieces, nephews, aunts, and uncles.198

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190 Id. at 568.

191 Id at 567 (citing Baxter v. Superior Court of Los Angeles County, 19 Cal.3d 461, 465-466, 138 Cal.Rptr. 315, 563 P.2d 871 (1977)).

192 McMahon, 97 Cal. Rptr. 3d at 567 (citing Baxter, 19 Cal.3d at 465-466).

193 McMahon at 568.

194 Kaufman, 222 P.3d at 279.

195 Scheele, 998 A.2d at 702-03 (citing 2009 VT 52, ¶ 11, 186 Vt. 63, 974 A.2d 1269; cf. Rabideau, 2001 WI 57, ¶ 31, 243 Wis.2d 486, 627 N.W.2d 795 (highlighting concerns about which pet owners could recover damages: “every family member? the owner of record or primary caretaker?”)) (“[p]laintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento-all of which can be prized beyond measure, but for which this state's law does not recognize recovery for sentimental loss”); Kaufman at 279; Goodby, 186 Vt. at 69-71.

196 Kaufman at 279.

197 Id. at 278-79.

198 Id. at 279.

“It would be illogical ... to accord the plaintiffs greater rights than would be recognized in the case of a person who suffers emotional distress as a result of the tortiously caused death of a member of his immediate family.”199

Some courts have found loss-of-companionship claims (which have been correlated to a wrongful death action) to be preempted by statute.200 For example, under Arizona's Wrongful Death Act, a plaintiff may recover his or her mental suffering and distress, but such loss is limited to spouses, parents, and children of the decedent.201 The owner-pet relationship is not included.202 In Vermont, a cause of action for loss of consortium is limited to spouses, parents, and children.203 One Vermont court noted that

[U]nder the Wrongful Death Act people may recover only for the loss of their next of kin, which can exclude recovery in many cases for the loss of many close relatives, such as grandparents or grandchildren, nieces, nephews, aunts, and uncles, as well as for the loss of nonrelatives like stepchildren, fiancés, or other closely held companions. Viewed from this perspective, plaintiffs request a judicial expansion of law to recover for loss of a pet what the law does not allow for loss of a broad variety of critically loved human beings. Whether the familial quality of companionship between humans and their pets is relatively new or ancient, plaintiffs seek a dramatic alteration to the law.204

In California, there is also a duty to avoid causing emotional distress when the plaintiff is a “direct victim.”205 In such a case, the duty owed to the plaintiff “is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ ”206 Such a duty arises in the case of a doctor-patient relationship.207 However, there is no

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199 McMahon at 563; see also Altieri v. Nanavati, 41 Conn.Supp. 317, 573 A.2d 359, 361 (1989) [“There is no reason to believe that malpractice on the family pet will receive higher protection than malpractice on a child or spouse”].))

200 Scheele, 998 A.2d at 698-99.

201 Kaufman at 279 (citing A.R.S. § 12-612(A) (2003); City of Tucson v. Wondergem, 105 Ariz. 429, 433, 466 P.2d 383, 387 (1970) (interpreting Wrongful Death Act to allow damages for the anguish, sorrow, stress, mental suffering, pain, and shock resulting from the decedent's death)).

202 Scheele at 698-99.

203 Kaufman at 279 (citing Barnes, 192 Ariz. at 286, 964 P.2d at 487 (spouses); Villareal, 160 Ariz. at 477(parents); Frank v. Superior Court, 150 Ariz. 228, 234, 722 P.2d 955, 961 (1986) (children)).

204 Goodby, 186 Vt. at 69.

205 McMahon, 97 Cal. Rptr. 3d at 561 (Burgess, supra, 2 Cal.4th at p. 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197).

206 McMahon, 97 Cal. Rptr. 3d at 561 (Burgess, supra, 2 Cal.4th at p. 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

207 McMahon at 561; Kaufman at 276.

duty imposed on a doctor to the parents of a child receiving treatment.208 Likewise, there is no duty in a veterinarian-pet owner situation because medical care is directed only toward the pet, and not toward the owner.209 A California court “discern[ed] no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.”210 If “direct victim” status did not extend “to the father of child under a doctor's care, it assuredly would not extend... to the owner of a pet under a veterinarian's care.”211 Therefore, the veterinarian-pet owner relationship does not give rise to “direct victim” liability for a veterinarian's malpractice.212 Because a veterinarian's malpractice does not directly impact or harm the owner, there is no liability for emotional distress.213

The effort to garner emotional distress damages in veterinary malpractice situations via negligent performance of a commercial contract has likewise failed. The general rule in California is that the negligent performance of a commercial contract does not entitle a plaintiff to recover emotional distress damages.214 However, there is an exception “when the express object of the contract is the mental and emotional well-being of one of the contracting parties.”215 In McMahon v. Craig, the court held that defendant veterinarians did not undertake a duty to protect plaintiff pet owner’s emotional health when they agreed to provide veterinary care to a pet after learning of pet owner’s special bond to her pet.216 The contract between plaintiff pet owner and defendants to treat the pet did not by itself demonstrate that defendants undertook a duty to protect her mental and emotional tranquility.217 The plaintiff’s description of her close relationship to her dog did not make her emotional tranquility an object of the contract when

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208 McMahon at 563. See also Altieri, 573 A.2d at 361 [“There is no reason to believe that malpractice on the family pet will receive higher protection than malpractice on a child or spouse”].))

209 McMahon at 561; Kaufman at 276.

210 McMahon at 563. See also Altieri at 361 [“There is no reason to believe that malpractice on the family pet will receive higher protection than malpractice on a child or spouse”].

211 McMahon, 97 Cal. Rptr. 3d 555.

212 Id.

213 Id. at 561, 564; Kaufman at 276.

214 Erlich v. Menezes, 21 Cal.4th 543, 558, 87 Cal.Rptr.2d 886, 981 P.2d 978 (1999).

215 Id.

216 McMahon at 563.

217 Id.

defendants agreed to treat the dog.218 A more explicit undertaking by defendants is required to impose liability for negligent infliction of emotional distress.219

Finally, courts have worried that “extending emotional distress damages to owners of companion pets based on veterinary malpractice would have unknown consequences on both the cost and availability of veterinary care. “220 They also have concerns that “permitting plaintiffs to recover emotional distress damages for harm to a pet would likely increase litigation and have a significant impact on the courts' limited resources.”221 Some courts are “not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet. Such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads of the court in resolving serious tort claims for injuries to individuals.”222

A number of cases illustrate the difficulties animal owners face when trying to recover non-economic damages for the loss of their pets.

In Gluckman v. American Airlines, 844 F. Supp. 151 (D.N.Y. 1994), a dog died while being transported on a plane. The court did not allow damages for negligent or intentional infliction of emotional distress or for loss of companionship because the law did not recognize an action for emotional distress caused by the suffering of an animal or loss of companionship of a pet.223 Pets are considered property and “New York law does not permit recovery for mental suffering and emotional disturbance as an element of damages for loss of a passenger’s property.”224

In Fackler v. Genetzky, 257 Neb. 130 (1999), horse owners could not recover for emotional damages after a veterinarian administered injections that killed the horses. This was due to the fact that animals are personal property and emotional damages cannot be awarded for the negligent destruction of personal property.225

In Johnson v. Douglas, 723 N.Y.S.2d 627 (2001), the court would not allow recovery for emotional distress due to negligent or malicious destruction of a dog, because the dog was merely personal property.

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218 Id.

219 Id. (citing Erlich, supra, 21 Cal.4th at p. 559, 87 Cal.Rptr.2d 886, 981 P.2d 978.)

220 McMahon at 564.

221 Id. at 563-64.

222 Id. at 564 (citing Johnson v. Douglas (N.Y.Sup.Ct.2001) 187 Misc.2d 509, 510, 723 N.Y.S.2d 627).

223 Gluckman, 844 F. Supp. 151.

224 Gluckman at 157.

225 Fackler, 257 Neb. at 140.

Similarly, in Oberschlake v. Veterinary Assocs. Animal Hosp., 151 Ohio App. 3d 741 (Ohio Ct. App. 2003), the owners of a dog sought non-economic damages for injury to the dog resulting from veterinary malpractice. The appellate court found that dogs were personal property and that the damages were properly limited to costs connected to the improper surgery, and did not include emotional distress or the pain and suffering of either the dog or the owners.226

In Kennedy v. Byas, 867 So.2d 1195, 1197-98 (Fla.2004), a Florida district court distinguished LaPorte and disallowed emotional distress damages in the negligent death of a dog where the claim involved only negligence, not malicious behavior.

In Petco Animal Supplies, Inc. v. Schuster 144 S.W.3d 554, 561-62 (Tex. App. 2004) the plaintiff asserted gross negligence in the loss of her dog. The Court reversed the trial court's award of mental anguish damage “[b]ecause there is no support in Texas law for awarding mental anguish damages for the loss of a dog.”227 The Court also reversed plaintiff’s award of counseling expenses because she could not recover for mental anguish or emotional harm arising from her dog’s death.228

In Pickford v. Masion, 124 Wash.App. 257, 260, 98 P.3d 1232 (2004), plaintiff’s dog was mauled by other dogs. She was not entitled to recover damages for negligent or malicious infliction of emotional distress. Neither was she entitled to damages for loss of companionship and the human-animal relationship, because the cause of action for destruction of the companionship relationship did not extend to death of or injury to a dog.

In Goodby v. Vetpharm, Inc., 974 A.2d 1269, 1271 (Vt.2009), the plaintiffs' cats died after taking pills produced by defendant, which contained a toxic dose of medication. The Vermont Supreme Court held that plaintiffs were not entitled to noneconomic damages such as negligent infliction of emotional distress when a companion animal dies due to the negligent acts of veterinarians and a pharmaceutical company.

In Kaufman v. Langhofer, a pet owner sued veterinarian and veterinary clinic for veterinary malpractice after his scarlet macaw died. The plaintiff brought claims for professional negligence, wrongful death, negligent misrepresentation, and damage to and destruction of personal property. Since the defendant veterinarian’s negligence did not directly harm the

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226 Oberschlake, 151 Ohio App. 3d 741.

227 Petco Animal Supplies, Inc., 144 S.W.3d at 563 (citing Heiligmann, 16 S.W. at 932; Zeid, 953 S.W.2d at 369).

228 Id. at 563.

plaintiff, he was not entitled to recover emotional distress damages.229 Neither was he entitled to loss of companionship damages.230

In McMahon v. Craig, 97 Cal.Rptr.3d 555 (Ct.App.2009), a dog owner sued veterinarians for veterinary malpractice and intentional infliction of emotional distress after her dog died while in the veterinarians' care. The court held that the owner could not recover emotional distress damages.231 The defendants' alleged acts of malpractice did not meet the prerequisites for an intentional infliction of emotional distress claim because they were neither directed at the plaintiff nor were they done in her presence.232 Because the plaintiff was not present at the scene when the injury-producing event occurred, she did not fall under the “bystander” category of persons to whom a duty to avoid causing emotional distress is owed.233 In addition, the defendant’s conduct (negligently rendered veterinary care and cover-up) was not so extreme or outrageous as to support a cause of action for intentional infliction of emotional distress.234

In Scheele v. Dustin, 998 A.2d 697 (Vt. 2010), defendant fatally shot a dog that wandered onto his property. Plaintiffs saw their dog get shot and witnessed the pain and death she endured.235 The dog’s owners sued under an intentional tort theory and a claim for loss of companionship. The parties stipulated that, as a direct and proximate result of the intentional act of the defendant, plaintiffs suffered severe emotional distress, manifested by recurring nightmares, sleeplessness, periods of sadness, and physical stress.236 They also stipulated that plaintiffs incurred economic and noneconomic damages, including emotional distress and “the destruction of the special relationship that each had with Shadow,” as a direct and proximate result of the defendant's intentional conduct.237 The court awarded full economic damages for the intentional destruction of property, but held that Vermont common law did not allow owners to recover noneconomic damages for emotional distress resulting from defendant's intentional shooting of their dog.238

Many courts are reluctant to expand the damages available for the loss of an animal because they consider it to be the purview of the legislature. Some state legislatures have begun to enact

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229 Kaufman, 222 P.3d at 276.

230 Id. at 273.


232 Id. at 565.

233 Id. at 561.

234 Id. at 557-58.

235 Scheele, 998 A.2d at 698-99.

236 Id. at 699.

237 Id. at 698-99.

238 Id.

legislation that allows for noneconomic damages such as emotional distress and loss of companionship when an animal is injured or killed.

3. Legislative Action

Although courts will “change the common law to meet changing needs of the people,”239 many are reluctant to “extend the common law to recognize a new cause of action for the wrongful killing of a pet.”240 Some consider this to be an instance where the issue “is better left for legislative resolution.”241 A California appellate court concluded “that any extension of a duty of care to avoid emotional distress to pet owners is a matter best left to the Legislature.”242

In response to a plaintiffs’ request for an extension of the Wrongful Death Act to pets, the Vermont supreme court stated in Goodby: “[I]n an area of law created entirely through statutory enactment, we are hesitant to create rights where the Legislature chose not to do so.”243 The Goodby court felt that allowing plaintiffs to recover noneconomic damages for the loss of their personal property (cats) was a role more suited to the state legislature. The court was

not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence, damages not entirely distinct from human grief and anguish attending the negligent destruction of other personally important property, both sentient and nonsentient, should be undertaken outside of the legislative arena.244

Expanding damages for wrongful death to pets was “better presented to the General Assembly.”245 The court would continue to look to that body “to shape any new cause of action relating to the malicious killing of pets.”246

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239 Id. at 702-03 (citing State v. LeBlanc, 149 Vt. 141, 145, 540 A.2d 1037, 1040 (1987)).

240 Id. at 702-03 (citing LeBlanc at 1040).

241 Id. at 702-03 (citing LeBlanc at 1040).

242 McMahon, 97 Cal. Rptr. 3d at 564.

243 Goodby, 186 Vt. at 69-71 (citing Gallipo v. City of Rutland, 2005 VT 83, ¶ 49, 178 Vt. 244, 882 A.2d 1177).

244 Goodby at 69-71.

245 Id.

246 Scheele at 704.

Some state legislatures have taken the hint and begun to enact legislation to expand the types and amounts of damages for injuries to animals.247 Some of the legislation includes allowing claims for damages for emotional distress, loss of companionship, and pain and suffering of animals and/or their owners.248

One example is the Tennessee “General Patton Act of 2003”249 (enacted in 2001), which was the first state statute to give a pet owner the right to recover damages for emotional distress and loss of companionship for tortious harm to a companion animal.250 The act allows up to five thousand dollars ($5,000) in non-economic damages if a person’s dog or cat is killed by an unlawful and intentional or negligent act.251 Non-economic damages are limited to compensation for the loss of the reasonably expected society, companionship, love and affection of the pet.252

Illinois followed suit in 2002 with its more comprehensive “Humane Care for Animals Act.”253 This act allows an animal owner to bring an action for damages if that animal had been subjected to an act of aggravated cruelty or torture, or had been injured or killed as a result of bad faith actions by another person.254 “Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner.”255 In addition, the owner is also entitled to punitive or exemplary damages of between $500 and $25,000 for each act of abuse or neglect to which the animal was subjected.256 In addition, the court must award reasonable attorney's fees and costs actually incurred by the owner in the prosecution of any action under the Act, and may also enter any injunction necessary to protect animals from any further acts of abuse, neglect, or harassment.257

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249 Tenn. Code Ann. § 44-17-403 (2006).


251 Tenn. Code Ann. § 44-17-403(a)(1), (b).

252 Tenn. Code Ann. § 44-17-403(d).

253 510 ILCS 70/16.3 (2006).

254 Id.

255 Id.

256 Id.

257 Id.

B. Punitive or Exemplary Damages

Punitive or exemplary damages are the proper remedy available to a party who has suffered from an intentional and malicious tort.258 Punitive damages are permitted “where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime.”259 Punitive damages may be recovered for fraud if a plaintiff can show actual malice.260 To recover punitive damages for intentionally made false representations, such statements must have been relatively egregious.261 A claim for veterinary malpractice or a claim of ordinary negligence will not usually support punitive damages.262

In Wright v. Clark, 50 Vt. 130 (1877), the court allowed an award of punitive damages in a case in which the defendant shot plaintiff's dog while trying to shoot at a fox. The defendant testified that he shot at the fox but hit the dog accidentally.263 The court found that the shooting of the fox was a voluntary act, not unavoidable, and therefore, it did not excuse the defendant that he did not intend to hit and kill the dog.264 The court upheld exemplary damages because the jury

found the defendant “intentionally and wantonly”-that is, purposely and recklessly, or without proper regard for the rights of the plaintiff-shot the dog. The law implies malice where a party purposely commits a trespass, especially if he commits the tort with a total disregard of the rights of the owner.265

The Vermont Court found “no error in the court's charge [allowing] exemplary damages” so long as the jury “found the defendant ‘intentionally and wantonly’ ... shot the dog.”266

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258 Scheele at 701, 702 (See, e.g., Green v. Laclair, 89 Vt. 346, 349, 95 A. 499, 500 (1915) (holding that “the conversion of the bay mare was in reckless and wanton disregard of the rights of the plaintiff, and if [the jury] so found they could in their sound discretion allow exemplary damages”)).

259 Scheele at 701 (See Brueckner, 169 Vt. at 129).

260 Reed. 2:09-CV-91, 2009 WL 3276648 (See Stuart v. National Indem. Co., 7 Ohio App.3d 63, 70, 454 N.E.2d 158 (Cuyahoga Co.1982)).

261 Reed, 2009 WL 3276648 (See Stuart v. National Indem. Co., 7 Ohio App.3d 63, 70, 454 N.E.2d 158 (Cuyahoga Co.1982)).

262 Reed, 2009 WL 3276648 (“punitive damages not available for negligence under Ohio law”) (See Stuart, 7 Ohio App.3d at 70; Lewis v. Horace Mann Ins. Co., 410 F.Supp.2d 640, 664 (N.D.Ohio 2005).

263 Wright v. Clark, 50 Vt. 130, 131 (1877).

264 Id. at 135-36.

265 Id.

266 Scheele at 701.

In another hunting case, Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Ct. App. 1994), the court upheld an award of $2,500 punitive damages after a hunter shot and killed the plaintiffs’ two dogs that were chasing deer. Because the defendant’s actions were intentional and were a proximate cause of the incident that damaged the plaintiffs, they supported an award of punitive damages.267

CONCLUSION

Animals’ status as personal property generally results in courts evaluating their loss in purely economic terms. Courts will consider their fair market value, or in the absence of a market value, their intrinsic value. Since the damages available to the owner are oftentimes limited to economic damages, the owner may not be adequately compensated for the emotional loss suffered when an animal is injured or killed.

Some courts have recognized that the traditional measure of valuation may lead to inequitable results. These courts see that owners suffer an emotional loss rather than a property loss and have begun to award damages that are not based on the economic value of the animal. These damages include loss of companionship and emotional distress.

Some courts that refuse to expand the common law to allow for noneconomic damages have encouraged the state legislature to enact legislation that would provide for such recovery. Tennessee and Illinois are states that have enacted statutes that provide for emotional distress and loss of companionship damages in cases involving the wrongful death of an animal.

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a survey of legal damages available in cases of death of or injury to an animal

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