Companion Animals: Sales
Connecticut
Raudat v. Leary
868 A.2d 120
Appellate Court of Connecticut, 2005
FACTS: Raudat bought a horse named Darryl from Leary. Leary cautioned Raudat that Darryl was “green broke” but did not inform her of Darryl’s tendency to buck. Over the course of the next few months, Raudat and Darryl’s trainer, Pruitt, were thrown from the horse on three separate occasions because of his tendency to buck. They were each knocked unconscious one time. Unable to ride Darryl, Raudat sold him and filed a two-count complaint against Leary alleging both intentional and negligent misrepresentation in the sale of Darryl. At trial, Pruitt was allowed to testify on her opinion as to whether Darryl was “green broke” without being properly qualified as an expert with advance notice. The court ruled in favor of Raudat on the intentional misrepresentation count, concluding that Leary failed to disclose a material fact that the horse bucked. Leary appealed.
ISSUES: Whether the trial court abused its discretion by allowing an admitted expert to give lay opinion; whether the court lacked a proper evidentiary foundation on which to award damages; whether the court made contradictory findings of fact in its decision.
HOLDINGS:
1) The trial court abused its discretion in admitting Pruitt’s testimony as to whether Darryl was green broke. Accordingly, the judgment of the trial court is reversed and the case is remanded for a new trial.
2) In light of the reversal of this case, the court need not reach the remaining issues on appeal, nor the defendant’s cross-appeal.
Federal (US)
Bakay v. Yarnes
431 F.Supp.2d 1103
US District Court, W.D. Washington, at Tacoma, 2006
FACTS: After receiving complaints about the living conditions of more than 70 cats in the Bakay’s care, authorities obtained a search warrant and seized approximately 68 cats. Mr. Bakay asked authorities if they intended to euthanize the cats and was assured that no harm would come to them as along as Bakay complied with the notice authorities gave him, which indicated that he had 15 days to petition in court for the cats’ return. However, after being examined by a veterinarian, 42 of the cats were ordered to be euthanized. Later, authorities served a search warrant on the Bakays’ veterinarian and seized 2 additional cats belonging to the Bakays, one of which was later euthanized. The remaining 27 cats were returned to the Bakays. As a result of the seizure and destruction of the cats, the Bakays alleged violations of the 4th, 5th, and 14th amendments, simple and gross negligence, respondeat superior, conversion and trespass to chattels, breach of bailment contract, outrage, statutory waste, breach of fiduciary duty, and tortuous interference with business expectancy.
ISSUES: Whether Veterinarian Schramm and Clallam County Humane Society were negligent in destroying the cats in question; whether the Bakays’ civil rights, including procedural due process, substantive due process, 4th, 5th, 14th amendment, and state constitutional rights have been violated; whether the Bakays have a legally cognizable claim for trespass to chattels or conversion; whether a bailment contract was formed and breached; whether the Bakays have a legally cognizable claim for the tort of outrage, statutory waste, or tortuous interference with a business expectancy.
HOLDINGS:
1) Euthanasia is allowed at any time for animals seized by the government, which are deemed to be severely injured, diseased, or suffering.
2) The Washington statute under which the animals were seized states that law enforcement officers and licensed veterinarians shall be immune from civil and criminal liability for actions taken under RCW 16.52.210 if reasonable prudence is exercised in carrying out the provisions.
3) There is no credible evidence that defendants were negligent in their examinations, and no credible evidence that the cats in question were not severely injured, diseased, or suffering.
4) The Bakays’ due process rights were not violated; to hold that notice and a hearing are required before an animal that is severely suffering can be euthanized is to rewrite the law.
5) The rest of the Bakays’ claims alleging violations of their rights under the federal and state constitutions are ambiguous and lack merit.
6) No cause of action for trespass to chattels or conversion exists if a defendant has legal authority to seize or take dominion over a plaintiff’s property. No credible evidence exists to suggest that defendants acted negligently in carrying out their duties, or exceeded their authority in this case and, therefore, the Bakays have no legally cognizable action for trespass to chattels or conversion.
7) Any notice given by the officers that the Bakays could petition the court for the return of the cats within 15 days does not constitute a promise that the cats would be returned, just notice that they could seek a potential remedy through the court system.
8) The same statute that gave the Bakays the right to petition the court within 15 days also gave the state the right to euthanize animals that are suffering at any time. Consequently, a bailment contract was not created when the cats were seized, and not violated when the cats were euthanized.
9) The Bakays claim of outrage must fail because they have failed to show that the actions taken by defendants were outrageous in any way, that they have suffered severe emotional distress as a result, or that they were present when the cats were euthanized.
10) There is no evidence whatsoever to support the Bakays’ statutory waste claim.
11) The Bakays’ claim of breach of fiduciary duty must fail because no Washington court has recognized the existence of a constructive trust imposed on law enforcement officers after lawfully seizing evidence pursuant to a warrant.
12) No credible evidence exists in the record to suggest that defendants interfered with the Bakays’ business for an improper purpose or used improper means.
Federal (U.S.)
Doris Day Animal League, et al. v. Veneman, USDA, et al.
315 F.3d 297
US Court of Appeals, District of Columbia, 2003
FACTS: The Animal Welfare Act (AWA) requires certain animal “dealers” to be licensed and to submit to inspections. The Act, which is administered by the USDA, exempts “retails pet stores” from these requirements. The Secretary of Agriculture defines “retail pet store” as “any outlet where only the following animals are sold or offered for sale, at retail for use as pets: dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and coldblooded species.” Thus, breeders who sell dogs from their residences are exempt from licensing and inspections proscribed by the AWA. The Doris Day Animal League filed a rulemaking petition with the Agriculture Department, urging a change in the Secretary of Agriculture’s regulatory definition of “retail pet store” so that residential operations would not be exempted. When the Secretary announced that he would retain the definition, the Doris Day Animal League and other organizations and individuals concerned about the mistreatment of dogs brought an action for judicial review. The district court held the USDA’s regulation of “retail pet stores” invalid because the definition did not include one who sells dogs for use as pets for his residence. Defendants appealed.
ISSUES: What did Congress intend “retail pet store” to mean; whether the USDA’s interpretation of “retail pet store” was reasonable.
HOLDINGS:
1) The legislative history reveals that the emphasis of the Animal Welfare Act was on regulation of wholesale, not retail, sellers of animals.
2) The definition of “dealer” has 2 exceptions: 1) retail pet store, 2) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year.
3) The Secretary’s decision and policy statement declining to modify its regulatory definition of “retail pet store” is supported with reasoning that is persuasive and faithful to the Act’s purpose of protecting animal welfare. The regulation is a permissible construction of the statutory term “retail pet store.”
Louisiana
Swido v. Lafayette Insurance Company
916 So.2d 399
Court of Appeal of Louisiana, 2005
FACTS: Hairford informed Pat and Tommie Swido that he had a filly, Mary Mae, for sale. The Swidos accompanied Hairford to Mark and Erica Gaillard’s home where Mary Mae was pastured to see her. As Mr. Swido was performing a preliminary inspection of Mary Mae, Mrs. Swido mounted Mary Mae bareback. Mary Mae crow-hopped, and Mrs. Swido lost her sear and fell to the ground, severely fracturing her right arm. The Swidos sued Hairford, the Gaillards, Lafayette Insurance, and Miki, Mark’s brother, for damages. The Gaillards, Lafayette and Miki filed motions for summary judgment which the trial court denied. This appeal followed.
ISSUES: Whether the Gaillards and Miki co-owned Mary Mae on the date of Mrs. Swido’s injuries; whether the Gaillards are liable under a theory of strict liability whether or not they owned Mary Mae at the time of the accident; whether Mary Mae posed an unreasonable risk of harm to Swido; whether the Gaillards were liable to Swido under a theory of negligence because they had a duty to warn Swido not to ride Mary Mae;
HOLDINGS:
1) A sale occurs and ownership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.
2) The sale of Mary Mae was perfected when Hairford paid the sale price, even though he paid an additional amount for the Gaillards to finish Mary Mae’s training.
3) Louisiana law does not require registration of horses. Registration documentation regarding Mary Mae filed with the NSHAI had no bearing on the transfer of her ownership pursuant to La.Civ.Code art. 2456.
4) The evidence establishes that an ordinary prudent person, like Mr. or Mrs. Swido, would not attempt to ride a horse that is only green-broke without taking special precautions. Under these facts, Mary Mae did not constitute an unreasonable risk of harm and the Gaillards cannot be liable on the theory of strict liability.
5) The Gaillards did not have a duty to warn prospective buyers not to ride Mary Mae and are not liable under the theory of negligence.
6) Res Ipsa Loquitur does not apply.
7) The Swidos have failed to produce sufficient evidence to establish that they will be able to satisfy their evidentiary burden at trial against the Gaillards on any of their theories of liability and that there is no genuine issue of material fact. The trial court erred in denying summary judgment.
Louisiana
Smith v. Roussel
809 So.2d 159
Court of Appeals of Louisiana, 2001
FACTS: The Roussels sold a horse named Stepper to the Smiths. The Smiths alleged that the Roussels represented Stepper as having a calm and gentle nature, but, shortly after the sale, Stepper was discovered to be a spooky and skittish beast. The Smiths tried to return Stepper, but the Roussels refused to take him back, and after much negotiation, it was agreed that Stepper would be put on the auction block. Less than 3 weeks after the purchase, John Smith suffered a hand injury while trying to unload Stepper from a horse trailer at the livestock sale where he was to be auctioned. The Smiths filed suit against the Roussels and the Roussels’ homeowner’s insurer, Allstate. The matter was tried and the Roussels were dismissed. The trial court found in favor of the Smiths and against Allstate and awarded damages in the amount of $15,000 in general damages and $10,800 in medical expenses.
ISSUES: Whether the “intentional acts” exclusion of the Roussels’ homeowner policy with Allstate barred recovery; whether the Roussels were negligent and the Smiths should be allowed to recover under their Allstate homeowner’s policy; whether Mr. Smith was comparatively negligent; whether the trial court abused its discretion by miscalculating the general damage award; whether the trial court abused its discretion by failing to award Mrs. Smith damages for loss of consortium.
HOLDINGS:
1) There is no evidence Stepper had a violent temperament or was overly aggressive. The court cannot say that the trial court was manifestly erroneous when it determined from the evidence in the record that the insurance policy exclusion for intentional acts was inapplicable to this case.
2) The record reasonably supports the trial court’s conclusion that the Roussels were negligent and that the Smiths were entitled to recover under their Allstate homeowner’s policy.
3) The record supports the trial court’s finding that John Smith was not negligent in causing his own injuries.
4) The court cannot say that an award of general damages in the amount of $15,000 for John Smith’s injured little finger is abusively low.
5) While an award for loss of consortium may have been appropriate, the court cannot say that the trial court was clearly wrong in failing to make such award.
Louisiana
Caubarreaux v. Free
799 So.2d 603
Court of Appeals of Louisiana, 2001
FACTS: Caubarreaux saw an advertisement in the newspaper which stated, “Gaited paint horse, 2 ½ years anyone can ride, $1200” and called seller Free to inquire about it. Caubarreaux informed Free he was interested in a horse that was extremely safe so his daughter could ride it. In the course of the conversation, Free informed Caubarreaux that the horse was very gentle and that his 5-year old grandson had ridden it. Free invited Caubarreaux to his residence to view the horse and Free accepted. Upon mounting the horse, Caubarreaux immediately noticed that it was nervous and unresponsive. After unsnapping the halter, the horse started going side-to-side and crow hopping uncontrollably. Before Caubarreaux was able to get off the horse, Free approached it with a stick in his hand with the intent to either whip or scare the animal. As he approached, the horse bucked violently and reared back, falling on Caubarreaux. He sustained bruising, a broken collar bone, a rib fracture, and wrist and hand injuries. A nonjury trial on the merits resulted in a finding of fault on the part of the defendants. They appeal.
ISSUES: Whether the trial court erred in awarding Caubarreaux damages without any finding of fault or negligence on the part of Free; whether the trial court erred in failing to apply the provisions of Civil Code art. 2321 to the facts; whether the trial court erred in awarding excessive damages.
HOLDINGS:
1) The facts revealed that Free knew of the problems with the horse but yet advertised it as a gentle trained horse. If not for the actions of Free, Caubarreaux could have avoided injury. In light of the record, the court finds the trial court’s ruling to be reasonable.
2) In his petition, Caubarreaux asserted remedies under La.Civ.Code art. 2314 and/or La.Civ.Code art. 2321. Because Caubarreaux asserted two alternative theories of liability, the trial court was free to grant relief based on either theory. The trial court’s finding of liability under La.Civ.Code art. 2315 was reasonable.
3) After a thorough review of the record, the court determined that the award by the trial court was not beyond that which a reasonable trier of fact could assess.
Massachusetts
Hurwitz v. Strain
773 N.E.2d 478*
Appeals Court of Massachusetts, 2002
FACTS: Assured by the defendant, Strain, that “Charlie” was a horse of mild disposition, suitable for a novice rider, the plaintiff decedent, Lukas, purchased him together with suitable harness and saddle equipment. A bill of sale dated April 29, 1995, finalized the transaction. On May 7, 1995, on her second ride, Lukas was thrown from the horse and subsequently died from her injuries. Hurwitz commenced this action seeking damages for wrongful death alleging negligence, misrepresentation, breach of express and implied warranties and violation of the Massachusetts consumer protection law. Strain moved for summary judgment on the ground that there was no evidence that he knew or should have known of the horse’s dangerous propensities. After reconsideration was denied, Hurwitz appealed.
ISSUES: Whether Strain knew or should have known that Charlie was not a suitable horse for a beginning rider; whether Strain made any false representation of fact that inclined Lukas to purchase him.
HOLDINGS:
1) Once Strain had established that no one who rode Charlie prior to the accident encountered any difficulty controlling him or observed problems with his temperament, the burden shifted to the plaintiff, as the opposing party, to provide some record support for her position that, in fact, the horse was unsuitable to ride before the accident.
2) The misrepresentation claim fails because Hurwitz did not establish that at the time of the sale Charlie was unsuitable for a beginning rider.
3) Changes that Charlie may have undergone after the sale cannot support a warranty or misrepresentation claim.
4) As to the contention that Strain was negligent in failing to warn Lukas that she should wear a helmet, the judge correctly concluded that riding a horse without one was such an obvious risk that, as a matter of law, no actionable duty arose.
* Unpublished decision
New York
Martin v. Columbia Greene Humane Society
17 A.D.3d 839
Supreme Court, New York, 2005
FACTS: In October of 2002, Heller complained to the Columbia Greene Humane Society that a dog she had recently purchased from Martin appeared sick. Tully, a volunteer with the Society and a peace officer, interviewed the Martins and allegedly learned that they had failed to file health certificates for out-of-state dogs they sold and also had neglected to report to the Department of Agriculture and Markets certain instances of dogs dying of contagious diseases while in their possession during 2001. Tully allegedly later returned to Martins’ home and told them that, unless he immediately signed a document surrendering the 15 puppies on his premises to the Society, he would arrest them upon a misdemeanor charge of violating Agriculture and Markets Law 357. Martins allege that Tully also told them that it would be 1 or 2 days before they were arraigned, that he would ask for high bail and that he would demand that their 5 children be placed by the Department of Social Services until they made bail. The Martins signed the surrender document and were issued an appearance ticket. Tully submitted a complaint in which he asserted that the Martins had willfully sold a dog with an infectious disease to Heller. The district attorney withdrew the charges. Tully notified Martins’ attorney that he was going to reinstate the criminal charges unless the Martins agreed not to sell any dogs for 3 years. The Martins then filed action against the Society, Tully and the president of the Society, Perez, alleging malicious prosecution, abuse of process, tortuous interference with business relations and civil rights violations. The Society’s motion to dismiss was denied and they appealed.
ISSUES: Whether the Supreme Court erred in not dismissing the complaint in its entirety for failure to state a cause of action.
HOLDINGS:
1) There are factual allegations supporting Martins’ contention that Tully had no basis for charging them with willfully selling a dog with an infectious disease to Heller and for using the threat of immediate incarceration on that charge as a ground to gain possession of the 15 puppies. The court finds that the remaining causes of action against Tully and the Society are sufficient to survive.
2) The court rejects that contention that the complaint against Tully should be dismissed upon the ground that he was an officer of the Society who served without compensation.
3) Directors, officers and trustees who serve without compensation in not-for-profit corporations are protected from liability for conduct in the execution of their office, unless their conduct constitutes gross negligence or intentional harm.
4) The court is not persuaded that Tully established in the motion under review that he was a director, officer or trustee entitled to protections afforded by N-PCL 720-a.
5) The motion to dismiss should be granted as to Perez in his individual capacity.
New York
Bukhatetsky v. Vysotski
296 A.D.2d 367
Supreme Court of New York, 2002
FACTS: Bukhatetsky was bitten by a dog and brought a personal injury action against the dog’s owner, Vysotski, and its former owners, the Kaplinskys, who had failed to notify authorities of the change of ownership after selling the dog four months before the incident. The Supreme Court denied the Kaplinskys motion for summary judgment and they appealed.
ISSUES: Whether the court erred in denying the Kaplinskys’ motion for summary judgment.
HOLDINGS:
1) The Kaplinskys established their prima facie entitlement to judgment as a matter of law by tendering evidence proving that Vysotski had sole possessory interest in the dog, and dominion and control over it on the date of the accident.
2) The mere fact that the appellants did not notify the authorities of the change of ownership, under the circumstances of this case, is insufficient to raise a material issue of fact with respect to their alleged ownership of the dog on the day of the accident.
Ohio
Bono v. McCutcheon
824 N.E.2d 1013
Court of Appeals of Ohio, 2005
FACTS: Bono and McCutcheon entered into a written contract for the sale of a whippet puppy named Doozie from McCutcheon to Bono. As per industry custom, McCutcheon gave Bono possession of Doozie when the agreement was made. Sometime thereafter, McCutcheon regained possession and refused to return the dog to Bono. Bono sued for breach of contract and conversion, seeking damages, specific performance, and replevin, and sued McCutcheon’s mother for tortuous interference with the contract. McCutcheon argued that the alleged contract lacked consideration, noting that the “Sales Contract” contained no sale price and that Bono had not paid for the dog. McCutcheon further argued that the “sale” was a conditional purchase and that Bono had not alleged that she satisfied the conditions of the sale. Finally, McCutcheon argued that the litigation belonged in small claims court, not the Court of Common Pleas. The Court of Common Pleas granted McCutcheon’s motion to dismiss for failure to state a claim. Bono appealed and the Court of Appeals held that Bono stated a claim for the consideration element of an enforceable contract and the contract was not a conditional contract.
ISSUES: Whether Bono stated a claim for the consideration element of an enforceable contract; whether the contract was a conditional contract; whether Bono’s allegations are adequate to raise a claim of tortuous interference with contract; whether Bono’s allegations are sufficient to plead a claim of conversion and replevin; whether Bono’s allegations are sufficient to plead a claim of specific performance.
HOLDINGS:
1) Although no money exchanged hands, Bono’s agreement to provide a puppy to McCutcheon from Doozie’s first litter resulted in a benefit to McCutcheon and constituted consideration.
2) The provisions in the contract as “conditions” to the purchase of Doozie were actually terms of the agreement. Thus, the contract was not a conditional contract.
3) Bono’s allegations that Beth McCutcheon induced her son to withhold possession of Doozie from Bono are adequate to raise a claim of tortuous interference with contract against Beth McCutcheon.
4) Bono’s allegations that McCutcheon agreed to give Doozie to her, gave Doozie to her, regained possession of Doozie and wrongfully refused to return Doozie to Bono are sufficient to plead a claim of conversion and replevin.
5) Bono’s claim that Doozie is unique and that monetary damages would be inadequate are sufficient to plead a request for specific performance.
Pennsylvania
Cavallini v. Pet City and Supply
848 A.2d 1002
Superior Court of Pennsylvania, 2004
FACTS: Cavallini purchased a Yorkshire terrier puppy from Pet City under the representation that the dog was a pure bred. One week after the purchase, Pet City gave Cavallini information pertaining to the dog’s vaccinations and AKC registration numbers. Cavallini requested additional documentation from Pet City but was not provided with it. He filed a complaint with the Bureau of Consumer Protection and they informed him that their attempts to mediate a resolution had been unsuccessful and advised him that he may have a valid court claim. Cavallini filed a district justice complaint that resulted in a default judgment in his favor. Pet City appealed and the arbitrator’s found in favor of Cavallini on claims of breach of contract, common law fraud and a claim under the Dog Provisions of the UTPCPL (Unfair Trade Practices and Consumer Protection Law). Pet City appealed again. During the subsequent trial, Cavallini abandoned his breach of contract and common law fraud claims and presented evidence solely on the UTPCPL claim. The trial court found in favor of Cavallini, awarding $200 as one-half the purchase price, plus a civil penalty in the amount of $500, and counsel fees in the amount of $938.52 . Pet City appealed again.
ISSUES: Whether the trial court erred as a matter of law by determining a private action can be brought under the Dog provisions of the UTPCPL; whether the trial court erred as a matter of law by imposing a civil penalty against Pet City pursuant to 73 P.S. § 201-9.3(h)(2).
HOLDINGS
1) The general provisions of the UTPCPL provide for 2 types of remedies: 1) under 73 P.S. § 201-9.2 private actions are authorized for consumers who suffer a loss due to certain unlawful practices as defined in the UTPCPL and 2) the UTPCPL provides a statutory scheme by which the Commonwealth may initiate proceedings to enforce the law, which may culminate in the imposition of civil penalties.
2) The trial court did not err in permitting a private cause of action pursuant to the Dog Provisions of the UTPCPL.
3) The exclusive enforcement powers given to the Office of the Attorney General in 73 P.S. § 201-9.3(h) are limited to the civil penalties outlined in 73 P.S. § 201-9.3(h)(2), similar to the remedy in the general provisions of the UTPCPL at 73 P.S. § 201-8.
4) Due to the inclusion of a civil penalty in this private action, the judgment of the trial court is vacated and the case is remanded for entry of judgment in favor of Cavallini for $1138.52: one-half of the purchase price plus counsel fees.
South Dakota
Blaha v. Stuard
640 N.W.2d 85
Supreme Court of South Dakota, 2002
FACTS: Chad Blaha bought a dog from Stuard for his dad. Before buying the dog, Blaha and Stuard discussed the dog’s characteristics of the dog and the type of environment the dog would be in under the Blaha’s care. Stuard told Chad that the dog had jumped on a child a long time ago and that the dog was protective of the porch area. Blaha gave the dog to his father as a gift. The dog got along well with the family until he bit Chad’s sister, Jessica. A personal injury lawsuit against the Stuards followed, alleging negligence, breach of warranties, negligent infliction of emotional distress, and strict liability. The trial court granted summary judgment for the Stuards and Blaha appealed.
ISSUES: Whether Blaha has a cause of action for negligence, breach of warranty, negligent infliction of emotional distress or strict liability.
HOLDINGS:
1) Dogs are “goods” and not “products.” We adopt the holding of the courts of Illinois, Colorado and Missouri which have all held that animals cannot be “products” under the Restatement of Torts.
2) Because a dog is not a product, no liability exists under a theory of strict liability.
3) Blaha failed to allege facts sufficient to support the contention that this was an abnormally dangerous animal.
4) Blaha’s action for negligence must fail because the dog was not “possessed” by the Stuards as required by the language in the Restatements. Blaha cited nothing and the Court found nothing to support the contention that a possessor’s liability may be superimposed upon a seller.
5) The Stuards fulfilled their duties as sellers when they relayed to the Blahas their experience with the dog. Accordingly, there was no breach of duty owed and an action for negligent infliction of emotional distress may not be maintained.
6) There existed no warranty concerning the dog’s disposition around people.
7) The statements complained of only describe the personality of the dog at the time it was sold. There is no warranty by the seller that the dog’s personality will not change in the future.
Texas
Petco Animal Supplies, Inc. v. Schuster
144 S.W.3d 554
Court of Appeals of Texas, 2004
FACTS: Schuster sued Petco after her miniature schnauzer was run over by traffic after escaping from a Petco groomer. Schuster took a default judgment, and the trial court awarded damages, including Schuster’s replacement costs for the dog, her out-of-pocket costs for training and microchip implantation, her wages lost while searching for the dog, Schuster’s mental anguish, emotional distress and counseling costs, intrinsic value loss of companionship, exemplary damages and attorney fees. Petco appealed.
ISSUES: Whether Texas law supports any award for mental anguish and related counseling, loss of companionship, or lost wages for the loss of a dog; whether there was evidence of conduct by Petco to support imposition of exemplary damages; whether the attorney’s fee award was excessive; whether the district court erroneously awarded both breach of contract and tort damages for the same injury.
HOLDINGS:
1) Under Heiligmann, dogs are classified as personal property for damage purposes. Heiligmann identifies only two elements that can be awarded under the “true rule” of damages for loss of a dog: 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. “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.
2) Mental anguish damages are not recoverable for negligent property damage as a matter of law. Grossly negligent property damage can support a claim for mental anguish only where there is evidence of some ill-will, animus, or desire to harm the plaintiff personally. The trial court’s award of mental anguish damages must be reversed.
3) Because Schuster cannot recover for mental anguish or emotional harm arising from the dog’s death, the award of counseling expenses must also be reversed.
4) Heiligmann’s “true rule” permitted recovery of a dog’s special or pecuniary value ascertained solely by reference to the usefulness and services of the dog.
5) The court must reject Schuster’s attempt to expand intrinsic value damages to embrace the subjective value that a dog’s owner places on its companionship. Intrinsic value damages are recoverable only where the property is shown to have neither market value nor replacement value.
6) Lost wages are not properly recoverable under Schuster’s tort theories.
7) Petco’s employees’ conduct in searching for Schuster’s dog lost by fellow employee did not constitute Petco’s approval or ratification of employee’s negligent act in losing dog, as would support recovery of exemplary damages.
8) In order for exemplary damages to have been proper, Schuster would have had to shown by clear and convincing evidence that the harm that she suffered was caused by fraud or malice on the part of Petco.
9) Punitive or exemplary damages may be recovered against a corporation only if the grossly negligent act is the very act of the corporation itself.
10) Exemplary damages are not recoverable for a breach of contract, even one breached maliciously, as a matter of law.
Texas
Koepke v. Martinez
84 S.W.3d 393
Court of Appeals of Texas, 2002
FACTS: James Koepke sold his Shar-Pei dog, Jackie Chan, to Teresa Canales. Because Canales was out of town, Maria Martinez, who was employed by Canales, traveled to Koepke’s home, exchanged money for Jackie Chan and took the dog to Canales’s home. The next day, while at Canales’ home, Andres Martinez went into the backyard to feed Jackie Chan. He alleges that Jackie Chan knocked him to the ground, bit his hand, left index finger, and chest, and began to bite at his throat. Andres claims he sustained injuries to his finger and chest, suffered a torn rotator cuff in his left shoulder and a herniated disk in his lower back. Andres brought suit claiming negligence, misrepresentation, strict liability, and gross negligence. Maria brought suit for loss of consortium and mental anguish, and their children brought bystander claims. The jury returned a verdict finding Andres 40% negligent and Koepke 60% negligent and awarded zero damages. Andres filed a motion to enter judgment notwithstanding the verdict and Koepke filed a motion for directed verdict. Koepke’s motion was denied and Andres’ motion was granted and damages were awarded. Koepke appeals.
ISSUES: Whether the court erred in granted Andres’ motion for judgment notwithstanding the verdict and denying Koepke’s motion for directed verdict.
HOLDINGS:
1) The trial court erred in denying Koepke’s motion for directed verdict.
2) The gist of an action to recover for injuries caused by a domestic animal, resulting from other than known vicious propensities, is usually negligence of the owner or keeper in the keeping or handling of an animal. Therefore, Andres was required to prove that Koepke was the owner or keeper of Jackie Chan at the time of the incident, and that he negligently handled Jackie Chan.
3) Because Koepke was neither the owner nor the handler of Jackie Chan at the time of the incident, he owed no duty to Andres.
West Virginia
Haines v. Hampshire County Commission
607 S.E.2d 828
Supreme Court of Appeals of West Virginia, 2004
FACTS: Haines’ dog was seized by police while running at large. The officer was unable to read the dog’s tags and subsequently impounded the dog. The officer posted a public notice for 5 days at the county courthouse, waited an additional 8 days, and then transported the dog to PetSmart where the dog was spayed, treated, for infection, and later adopted. The Haines’ filed suit alleging that their substantive and procedural due process rights were violated. They argued that their dog was held in custody without notifying them of its whereabouts and then was unlawfully sold. The circuit court dismissed the Haines’ complaint and they appealed, seeking repossession of their dog, monetary damages, and the removal of the officer who impounded their dog.
ISSUES: Whether the circuit court erred in dismissing the Haines’ complaint for failure to state a claim upon which relief could be granted.
HOLDINGS:
1) None of the Haines’ allegations state a legal basis upon which any of their requested relief can be granted.
2) A finding of the Court in favor of the Haines would render the effect of numerous animal control statutes virtually null and void. As such, intervention by the Court would necessarily have a chilling effect on future enforcement efforts.
3) The Haines’ quest for repossession of the dog is misdirected as the county is no longer in possession of the personal property sought.
4) The Haines’ alternative request for monetary compensation is without merit as the Haines’ admit that the dog was not assessed as personal property by their county assessor.
5) In order to recover damages for the loss of a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable.
Wyoming
Addakai v. Witt
31 P.3d 70
Supreme Court of Wyoming, 2001
FACTS: The Addakais became interested in buying a thoroughbred mare from the Witts and, after providing a down payment, requested an opportunity to ride the horse while it was still on the Witts’ premises. While on a test ride, Mrs. Addakai was thrown from the horse and sustained injury. The Addakais sued alleging negligence, negligent misrepresentation, strict liability, and conversion. The district court granted the Witts partial summary judgment on the strict liability issue, and a jury found in favor of the Witts on the remaining counts. The Addakais appeal claiming misleading jury instructions and irregularities in the special verdict form.
ISSUES: Whether the Addakais should receive a new trial on their negligence claims due to the misleading, confusing and prejudicial jury instruction under the Landowner Liability Act; whether the Addakais should receive a new trial on their negligence claims due to irregularities surrounding the special verdict form which deprived the Addakais of a fair and impartial jury and resulted in a verdict contrary to the weight of the evidence.
HOLDINGS:
1) The Court cannot agree with the Addakais that the language of the Landowner Liability Act evinces a legislative intent to exclude equine activities from the “recreational purpose” provision of the statute.
2) A careful review of the entire charge given to the jury in this case leaves this court with the firm impression that the charge presented a comprehensive, balanced and fundamentally accurate statement of the governing law to the jury.
3) The district court allowed the jury to decide what risks inhere to horseback riding, and the jury made its decision.
4) The Addakais’ counsel had, in fact, agreed to leave the precise language of the verdict form to the district court. Timely objection to a verdict considered to be inconsistent or irregular is essential to preservation of such an issue on appeal. Thus, the Addakais are foreclosed from raising the matter of appeal.