Damages: Emotional Distress
Connecticut
Pantelopoulos v. Pantelopoulos
49 Conn.Supp. 209
Superior Court of Connecticut, 2005
FACTS: Mr. and Mrs. Pantelopoulos were divorced in August of 2003 and Mrs. Pantelopoulos had a restraining order issued against Mr. Pantelopoulos. In September of 2003, Mrs. Pantelopoulos moved out of the marital residence, leaving Mr. Pantelopoulos’ dog behind in the garage without food or water. The dog died of dehydration and starvation. Mr. Pantelopoulos filed this action for intentional infliction of emotional distress. Mrs. Pantelopoulos filed a motion to strike. Mr. Pantelopoulos argued that Connecticut law permits recovery for intentional infliction of emotional distress. He further argued that New Jersey law also permits such recovery and that New Jersey law should prevail because the parties were domiciled and residents of New Jersey at all relevant times.
ISSUES: Whether New Jersey or Connecticut law should apply; whether Connecticut law permits recovery of non-economic damages in connection with negligent or intentional acts resulting in the death of a pet; whether New Jersey law permits recovery of non-economic damages in connection with negligent or intentional acts resulting in the death of a pet.
HOLDINGS:
1) In order to prevail in a case for intentional infliction of emotional distress, four elements must be established: 1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; 2) that the conduct was extreme and outrageous; 3) that the defendant’s conduct was the cause of the plaintiff’s distress; 4) that the emotional distress sustained by the plaintiff was severe. Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine; only where reasonable minds disagree does it become an issue for the jury.
2) There is no authority which supports the plaintiff’s argument that New Jersey recognizes an intentional infliction of emotional distress claim for the loss of a pet.
3) There is no New Jersey precedent permitting a pet owner to recover non-economic damages when a pet is negligently injured or killed.
4) Connecticut common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet.
Connecticut
Myers v. City of Hartford
84 Conn.App. 395
Appellate Court of Connecticut, 2004
FACTS: In response to several complaints about roaming dogs, an animal control officer removed a dog from Myers’ property. After being informed by a neighbor that Myers was the animal’s owner, the officer waited approximately 5 minutes for Myers to return home. When she did not appear, he removed the dog to a veterinary clinic and had the animal euthanized, allegedly because the animal was in poor health. He did not seek authorization for the euthanization from a veterinarian as required under Connecticut law. In addition, the officer never informed the owner of his seizure and custody of the dog and did not place an advertisement in a newspaper. Myers brought an action against the animal control officer and city manager for intentional and negligent infliction of emotional distress and against the municipality as indemnitor for its employees. The trial court granted the city’s motion for directed verdict, ruling that it was protected by qualified municipal immunity.
ISSUES: Whether the court improperly analyzed Myers’ claims under Section 52-557n rather than under Section 7-465; whether the actions of the municipal employees fall within the doctrine of qualified immunity; whether Myers can recover on a claim for emotional distress resulting from the death of a pet.
HOLDINGS:
1) The trial court improperly analyzed the claim under Section 52-557n. It should have been analyzed under Section 7-465.
2) Although the court evaluated the claims under the wrong statute, no harm resulted.
3) The municipality’s duty to indemnify attaches only when the employee is found to be liable and the employee’s actions do no fall within the exception for willful and wanton acts.
4) To prevail, Myers must set have forth a colorable common-law claim against the municipal employee.
5) Connecticut has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to a pet. By pleading only claims for intentional and negligent infliction of emotional distress, Myers has not set forth a colorable common-law claim against the city employees and the municipality cannot be held liable for indemnification.
6) Because Connecticut common law has not extended the right to sue for damages for the deprivation of such close human relationships when the plaintiff has not witnessed the fatal injury, it would be incongruous to extend it to emotional distress resulting to a person from the loss of a pet.
Federal (U.S.)
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 if they 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. 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 give 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.)
Brown v. Muhlenberg Township
269 F.3d 205
U.S. Court of Appeals, Third Circuit, 2001
FACTS: The Browns’ three-year old Rottweiler, Immi, had been place in the Browns’ fenced yard. Although the Browns had not secured a dog license for her, Immi wore a bright pink, one inch wide collar with many tags: a rabies, microchip, guardian angel, and identification tag along with the Browns’ address and telephone number, and the Browns’ prior Rottweiler’s lifetime license. Unbeknownst to the Browns, the latch on the back gate of their fence had failed, and Immi had wandered into the adjacent parking lot beyond the fence. Eventually Officer Eberly came upon Immi. After calling to her, he walked to a position 10 to 12 feet from her. According to a stranger observing from his car, Immi was stationary, not growling or barking and did not display any aggressive behavior towards the officer and never tried to attack him. At this point, Mrs. Brown looked out of an open screened window of her house and saw what was occurring. She shouted out “That’s my dog, don’t shoot!” Officer Eberly hesitated a few seconds and then pointed his gun at Immi. Mrs. Brown tried to break through the window’s screen and screamed, “No!” The officer then fired 5 shots at Immi, killing her. The Browns brought this action against Officer Eberly, the township, and chiefs of police, alleging violations of their 4th and 14th Amendment rights and alleging intentional infliction of emotional distress. The district court granted the defendants summary judgment motion and the Browns appealed.
ISSUES: Whether the Browns’ right to be free from unreasonable governmental seizures of their property was violated; whether Officer Eberly is entitled to qualified immunity; whether the destruction of Immi deprived the Browns of their property when they were entitled to due process; whether the Browns have satisfied their burden of establishing facts sufficient to support their claim of municipal liability; whether the Browns have established the existence of an unconstitutional governmental custom; whether the Browns have established a failure to train claim; whether Police Chiefs Flanagan and Smith are responsible for Officer Eberly’s constitutional torts; whether the Browns are entitled to recover for intentional infliction of emotional distress.
HOLDINGS:
1) This court joins two of its sister courts or appeals in holding that the killing of a person’s dog by a law enforcement officer constitutes a seizure under the 4th Amendment.
2) When the state claims a right to make a warrantless seizure, the court must balance the nature and quality of the intrusion on the individual’s 4th Amendment interests against the importance of the governmental interests alleged to justify the intrusion.
3) If the facts asserted by the Browns are found to be true, we conclude that a reasonable officer in Officer Eberly’s position could not have applied these well established principles to the situation before him and have concluded that he could lawfully destroy a pet who posed no imminent danger and whose owners were known, available, and desirous of assuming custody.
4) Officer Eberly did not establish that he was entitled to qualified immunity.
5) It follows that Officer Eberly’s destruction of Immi deprived the Browns of their property and that they were entitled to due process.
6) Contrary to the Browns’ suggestion, this court concludes that no predeprivation process was constitutionally required here; summary judgment was properly entered against the Browns on their procedural due process claim.
7) The Browns have not satisfied their burden of establishing facts sufficient to support their claim of municipal liability because they have tendered no evidence of any official policy endorsing Officer Eberly’s conduct.
8) The Browns have not established the existence of an unconstitutional governmental custom.
9) The Browns have not established evidence to support their failure to train claim.
10) The elements to establish a supervisory liability claim have not been established.
11) The court in Banasczek held that Pennsylvania recognizes the tort of intentional infliction of emotional distress and rejected the contention that the killing of a pet under any circumstances would not be recognized by the Pennsylvania courts as extreme or outrageous.
12) This court predicts that the Pennsylvania courts would permit a trier of fact to return a verdict for the plaintiff in an intentional infliction of emotional distress case where it can be shown that a police officer’s attention was called to the severe emotional distress of the pet’s owner, he hesitated before shooting, and he then attempted to fire five bullets into the pet within the owner’s view and without justification.
13) Officer Eberly is not entitled to sovereign immunity under state law with respect to the intentional infliction of emotional distress claim because the record will support a conclusion that he acted intentionally.
Florida
Kennedy v. Byas
867 So.2d 1195
District Court of Appeal of Florida, 2004
FACTS: Kennedy filed a 2-count complaint against his veterinarian, Byas, seeking damages for veterinary malpractice in the treatment of his basset hound. Count 1 alleged negligence and emotional distress; count 2 alleged fraud. The defense motion for partial summary judgment was granted with respect to the emotional distress damages, finding that, even if all allegations were proven, Kennedy could not recover for emotional distress, mental pain and suffering, or mental anguish. The court denied the motion with respect to the fraud claim.
ISSUES: Whether emotional damages are recoverable in a veterinary malpractice case; whether the court should abandon the impact rule and allow the recovery for emotional distress in cases involving veterinary malpractice.
HOLDINGS:
1) The Court declines to extend the impact rule or create an exception to that rule to malpractice cases involving animals.
2) The Court finds itself in agreement with the New York courts which recognize that while pet owners may consider pets as part of the family, allowing recovery for these types of cases would place an unnecessary burden on the ever burgeoning caseload of courts in resolving serious tort claims for individuals.
Florida
LaPorte v. Associated Independents, Inc.
163 So.2d 267
Supreme Court of Florida, 1964
FACTS: Early one morning, while La Porte was making breakfast, a garbage collector came to her house. LaPorte had tethered her dog Heidi, a pedigreed miniature dachshund, outside the house and beyond reach of the garbage can. She saw the garbage man empty the can and hurl it in the direction of the dog. Upon hearing her pet yelp, LaPorte went outside to find Heidi injured. The collector laughed and left. Heidi later died from the blow. LaPorte brought an action for damages and was awarded compensatory and punitive damages. That judgment was appealed and reversed for reconsideration not of the issue of liability, but for determination only of compensatory and punitive damages. LaPorte then petitioned the Supreme Court for a writ of certiorari.
ISSUES: Whether the element of mental suffering was properly submitted to the jury for their consideration in assessing damages.
HOLDINGS:
1) It is obvious from the facts in this case that the garbage man was malicious and demonstrated an extreme indifference to the rights of LaPorte.
2) There was no prohibition of punitive damages under the rule relative to awarding compensation for mental pain resulting from malicious or intentional torts, as would be the case if there had been physical injury resulting only from simple negligence.
3) The affection of a master for his dog is a very real thing and the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.
4) The opinion of the District Court of Appeal sufficiently collides with this court’s opinion as to whether the element of mental suffering was properly submitted to the jury for consideration in assessing damages.
5)Writ is granted and the judgment of the District Court of Appeal is quashed with directions to order the judgment of the trial court be reinstated.
Georgia
Holbrook v. Stansell
562 S.E.2d 731
Court of Appeals of Georgia, 2002
FACTS: Holbrook’s grandson owned a thoroughbred horse. While the horse was giving birth, Holbrook saw a dog standing behind the horse that she suspected was attacking the newborn foal. Although Holbrook never saw the dog bite or attack the foal, she ran towards the pasture where the alleged attack was taking place and injured herself when she climbed over a gate. Holbrook’s husband managed to chase the dog away without Holbrook being touched by the dog. Holbrook saw the injuries to the newborn foal and eventually had the foal put to sleep. Holbrook sued the Stansells, suspecting that it was their dog that attacked the foal. Holbrook sued for, among other things, negligent infliction of emotional distress for having witnessed the attack of the foal and for attorney fees. The Stansells successfully moved form summary judgment on Holbrook’s negligent infliction of emotional distress and on all attorney fees claims and Holbrook appealed.
ISSUES: Whether genuine issues of material fact exist regarding Holbrook’s claim for emotional distress based on witnessing the attack on the foal; whether issues of fact remain regarding the claims for attorney fees.
HOLDINGS:
1) There is no independent tort in Georgia for negligent infliction of emotional distress.
2) In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.
3) The impact rule has 3 elements: 1) physical impact to the plaintiff; 2) the impact causes physical injury to the plaintiff; 3) the physical injury causes the plaintiff’s mental suffering or emotional distress.
4) Because Holbrook was not touched or injured by the dog in any way during the attack on the foal, she cannot satisfy any of the elements of the impact rule and cannot recover for any of her emotional distress from viewing the attack.
5) Furthermore, Holbrook’s grandson owned the foal, not Holbrook. One cannot recover for emotional distress from merely witnessing damage to another person’s property.
6) The trial court also properly granted the Stansells summary judgment on Holbrook’s and her grandson’s claims for attorney fees.
Indiana
Lachenman v. Stice
838 N.E.2d 451
Court of Appeals of Indiana, 2006
FACTS: Lachenman was on her deck with her Jack Russell Terrier when she was distracted by a telephone call from work. After she went inside to answer it, she heard a “horrible” noise from her dog. When she went back to her deck she saw the Stices’ German Shepard and English bulldog repeatedly attacking her dog in the lake attached to her property. Eventually the Stices’ dogs let Lachenman’s dog go. Lachenman took her dog to the vet to treat its wounds, but the dog died. Lachenman sued the Stices on claims of intentional, negligent infliction of emotional distress, punitive damages, future breeding income, statutory violations, and for a protective order. The trial court granted partial summary judgment and Lachenman appealed.
ISSUES: Whether Lachenman can recover for intentional infliction of emotional distress; whether Lachenman can recover for negligent infliction of emotional distress; whether the Stices were negligent per se under Indiana code; whether the Stices were negligent per se under the owner’s association rules; whether Lachenman has a claim for loss of potential breeding income; whether the trial court erred in excluding evidence regarding two incidents involving the Stices’ dogs which occurred after the attack on Lachenman’s dog; whether the court should consider evidence regarding the sentimental value of Lachenman’s dog.
HOLDINGS:
1) Lachenman cannot recover for intentional infliction of emotional distress because the Stices’ actions did not constitute “outrageous” behavior as contemplated by the narrow definition adopted from the Restatement.
2) The evidence reveals no direct physical impact to Lachenman that would justify recovery for negligent infliction of emotional distress under the modified impact rule.
3) The court rejects the notion that witnessing the death or severe injury of a pet is sufficient direct involvement to allow a claim of negligent infliction of emotional distress.
4) Although many pets are beloved by their owners, they remain property.
5) The state statute under which Lachenman states a claim for negligence per se is intended to protect against a dog bite or attack on another person, not on another dog. Therefore, violation of this statute does not support Lachenman’s claim for damages.
6) Violation of property owner’s association rules and regulations will not support a determination of negligence per se, but a violation could be evidence of negligence.
7) The trial court did not err in granting summary judgment in favor of the Stices with respect to Lachenman’s claim for future breeding income because evidence with regard to this claim was speculative in nature.
8) The Indiana case law does not support the notion that subsequent acts by a dog are relevant to the question of a dog’s vicious propensity, and the dog owner’s knowledge thereof, at the time of the attack in question. The trial court did not err in excluding such evidence in this case.
9) A dog is personal property and the measure of damages for destruction of personal property is the fair market value thereof at the time of the destruction.
10) The trial court did not err in excluding evidence regarding sentimental value of Lachenman’s dog.
Kentucky
Ammon v. Welty
113 S.W.3d 185
Court of Appeals of Kentucky, 2002
FACTS: Shortly before Christmas of 1992, the Ammons adopted Hair Bear, a stray dog. Hair Bear was never licensed and roamed the area without restraint. One of the Ammons’ neighbors often complained about Hair Bear on her property. In May of 1993, the neighbor picked up Hair Bear and delivered him to the residence of the county dog warden. Hair Bear was wearing a collar but nothing to identify him with his owner. Before expiration of the 7 day waiting period, the warden shot and killed Hair Bear. The Ammons filed action against the dog warden and the county fiscal court members alleging the wrongful destruction of Hair Bear. The trial court dismissed the action and the Ammons appealed.
ISSUES: Whether the Ammons have stated a claim for the wrongful destruction of Hair Bear; whether the Ammons have stated a claim for outrageous conduct causing severe emotional distress.
HOLDINGS:
1) The Ammons have not stated a claim upon which relief can be granted.
2) It remains that a dog is property, not a family member.
3) The loss of love and affection resulting from the loss or destruction of personal property is not compensable.
4) There is no evidence that the warden intended to inflict emotional harm on the Ammon family.
5) Although the conditions of these pounds and the method of destroying the dogs may be morally offensive to some, it is the legislature’s prerogative, not that of this court, to abolish the practice.
Kentucky
Burgess v. Taylor
44 S.W.3d 806
Court of Appeals of Kentucky, 2001
FACTS: Taylor was the owner of 2 horses, Poco and PJ, for approximately 14 years and loved them as if they were her children. Due to a variety of medical problems, it became difficult for Taylor to perform some of the physical tasks necessary to properly care for these horses. She arranged for the Burgesses to take Poco and PJ to live on their farm under a free-lease agreement. It was stipulated that Taylor did not intend to surrender ownership of the horses, that she still wanted to have frequent contact with the horses, and that if there ever came a time when the Burgesses were unable to care for Poco and PJ, Taylor would take them back. Within a few days after the Burgesses picked up Poco and PJ, they sold them to a known slaughter-buyer for $1,000. A week later, when Taylor called the Burgesses to say that she wanted to come and visit Poco and PJ, Mrs. Burgess told her that she had given them to a man she met on a trail and did not know his name. Taylor was insistent that she find her horses and so Mrs. Burgess arranged for one of her friends to lie and tell Taylor that he had the horses. This charade continued as Taylor continued to call, plead and search for Poco and PJ. Finally, with the aid of a humane investigator, Taylor learned that Poco and PJ had been sent to slaughter and filed action against the Burgesses. The jury returned a verdict against the Burgesses for breach of contract and intentional infliction of emotional distress and awarded her $1,000 for the fair market value of the horses, $50,000 in compensatory damages for outrageous conduct and $75,000 in punitive damages. The Burgesses appealed.
ISSUES: Whether the evidence supports recovery under the tort of outrage; whether the proper award of damages for the loss or damage to an animal is the value of that animal rather than emotional damages for that loss; whether the jury’s award of $50,000 of compensatory and $75,000 of punitive damages for emotional distress was excessive because under the “first blush” rule, it had to have been given under the influence of passion or prejudice; whether the award of punitive damages should be set aside; whether Kentucky’s “unclear and poorly defined punitive damages law” violated the Burgesses’ right to due process; whether the award of punitive damages for intentional infliction of emotional distress results in double recovery for Taylor; whether the trial court erred in refusing to grant their motion for a mistrial; whether reversible error resulted from the use of hearsay statements at trial.
HOLDINGS:
1) To recover under the tort of outrage, a plaintiff must prove: 1) the wrongdoer’s conduct was intentional or reckless; 2) the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3) there was a causal connection between the wrongdoer’s conduct and the emotional distress; 4) the emotional distress was severe. Taylor presented sufficient evidence of each of these required elements and the trial court properly submitted the claim to the jury.
2) There are no cases in Kentucky holding that a finding of intentional infliction of emotional distress or punitive damages is precluded simply because the facts giving rise to the claim involve an animal.
3) The “first blush” rule is not the proper appellate standard for review of an award of damages.
4) The Burgesses’ “general objection to the instructions as tendered” is without specification and insufficient to preserve error and thus, the argument that the award of punitive damages should be set aside must fail.
5) The issue of whether Kentucky’s “unclear and poorly defined punitive damages law” violated the Burgesses’ right to due process was not raised in or decided by the trial court and as such is precluded from our review.
6) Taylor’s award of punitive damages for intentional infliction of emotional distress did not result in double recovery. A victim of outrageous conduct can recover both compensatory and punitive damages.
7) Absent an abuse of discretion, a trial court’s decision whether or not to grant a mistrial will not be disturbed. There was no such abuse of discretion in this case; thus, the ruling of the trial court will not be disturbed.
8) The hearsay statements at issue were properly admitted under KRE 801A, which allows prior statements of witnesses and admissions if the declarant is available as a witness, and is examined concerning the statement, after the proper foundation is laid, and the statement is inconsistent with the declarant’s testimony at trial.
Massachusetts
Kransnecky v. Meffen
777 N.E.2d 1286
Appeals Court of Massachusetts, 2002
FACTS: Two dogs owned by the Meffens entered onto the Kransneckys’ residential property and killed 7 of their sheep. The Kransneckys learned of the killings the next day when they returned home after an out-of-state trip. They filed a complaint against the Meffens claiming the sheep were “companion animals” and seeking damages for emotional distress and loss of companionship and society. Their damages demand specifically excluded “market value or nominal damages.” After the Kransneckys refused to respond to discovery requests relating to the market value of the slain sheep, the Meffens moved to prohibit the Kransneckys from offering such evidence or evidence of any emotional distress they suffered. The judge decided that the Kransneckys did not have a legally cognizable claim for emotional distress occasioned by the loss of the sheep and allowed the motion to preclude evidence of emotional distress. Final judgment in favor of the Meffens was then ordered on counts relating to strict liability, trespass to real estate, and intentional and negligent infliction of emotional distress. The court awarded the Kransneckys $1 under M.G.L.A. 140 § 155, the statute governing damages caused by dogs, and they appealed.
ISSUES: Whether the Kransneckys have a legally cognizable claim for emotional distress and loss of companionship and society.
HOLDINGS:
1) Damages for emotional distress and loss of companionship and society are unavailable to them as a matter of law. At most, the only damages to which they are entitled are the nominal damages that they have been awarded.
2) Among the pragmatic judgments applied to claims of emotional distress are those imposing requirements of spatial and temporal proximity upon the Kransneckys.
3) Putting aside the broader issue of noneconomic damages for injuries to companion animals, under the pragmatic position taken by the case law of Massachusetts, the Kransneckys absence at the time of the killing of their sheep and the fact that they did not learn of the slaughter until the following day alone precludes any recovery for the emotional distress suffered by them.
4) Limiting liability on the basis of arbitrary factors such as presence or temporal proximity must be employed for policy reasons to prevent an unreasonable expansion of liability for the multitude of injuries that could fall within the bare principle of reasonable foreseeability.
5) The absence of statutory authority precludes recovery on the Kransneckys loss of consortium claims related to the death of sheep.
6) This court knows of no decision of the Massachusetts courts in which the negligent release of a dog has been held to support a trespass action. Such an extension of the case law would unnecessarily and less than completely duplicate the liability established by M.G.L.A. 140 § 155, which governs liability for damages caused by dogs.
New York
Feger v. Warwick Animal Shelter
814 N.Y.S.2d 700
New York Supreme Court, Appellate Division, 2006
FACTS: Feger commenced this action against the Warwick Animal Shelter and its employee to recover possession of her cat and for emotional damages. Feger alleged that a white Persian cat called “Lucy” that was surrendered to the shelter by an unidentified person and adopted by an unidentified family, was actually her champion pure-bred Persian cat “Kisses” that was stolen from her home, and that the shelter knew the cat to be stolen at the time of adoption. The Supreme Court granted the shelter’s motion to dismiss and denied Feger’s motion for summary judgment. Feger appealed.
ISSUES: Whether the Warwick Animal Shelter and its employee are statutorily immune from civil liability; whether Feger was entitled to an award of emotional damages for the loss of her cat; whether summary judgment was precluded by fact issues.
HOLDINGS:
1) To the extent that Feger could prove that the animal shelter and its employee had knowingly accepted a champion cat stolen from her home and placed it for adoption with an unidentified family, the shelter and its employee would not be statutorily immune from civil liability.
2) Feger’s cat is personal property and its loss cannot support an award of emotional distress damages.
3) Whether “Lucy” is “Kisses” is a question of fact and therefore, summary judgment is precluded.
North Dakota
Kautzman v. McDonald
621 N.W.2d 871
Supreme Court of North Dakota, 2001
FACTS: The Kautzmans owned four German Shepherds and one Golden Retriever cross-breed which they kept as family pets in Cass County. In February of 1999, the dogs escaped through a fence from the Kautzmans’ yard. Police received several phone calls about the dogs from concerned area residents. The dogs were eventually shot to death by law enforcement officers as the dogs were beginning to roam into Fargo city limits. The Kautzmans sued the State, the County, 2 deputy sheriffs and 2 highway patrolmen for the destruction of their dogs. The trial court granted the defendants’ motion to dismiss concluding that dismissal was required because the Kautzmans failed to present a notice of claim to the director of the Office of Management and Budget within 180 days after the alleged injury was discovered or reasonably should have been discovered. The trial court also concluded that the statutes and ordinances relied upon by the Kautzmans did not impose an affirmative duty on the law enforcement officers to not shoot the dogs. It dismissed the Kautzmans’ claim for intentional infliction of emotional distress, concluding that the deputies’ actions did not meet the threshold requirement of extreme and outrageous conduct.
ISSUES: Whether the trial court erred in dismissing the action against the highway patrolmen and the State for failure to timely file a notice of claim with the director of the Office of Management and Budget; whether the trial court erred in dismissing the Kautzmans’ claim for intentional infliction of emotional distress; whether the trial court erred in dismissing the negligence claim against the deputy sheriffs and Cass County.
HOLDINGS:
1) The allegations in the Kautzmans’ complaint are not indicative of an intention to sue the law enforcement officers in their individual capacities.
2) The trial court did not err in dismissing the action against the State and Highway Patrolmen for failure to file a timely notice of claim with the director of the Office of Management and Budget. The record reveals that the Kautzmans were aware of the defendants’ involvement within days, if not hours, of the shootings and had sufficient time to comply with the notice of claim requirement.
3) The elements of a tort action for the intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. The trial court did not err in dismissing the Kautzmans’ claim for intentional infliction of emotional distress because the circumstances are simply insufficient to constitute extreme and outrageous conduct on the part of the law enforcement officers.
5) The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered.
6) The trial court erred in granting summary judgment and dismissing the tort action against Cass County and the deputy sheriffs because reasonable persons could reach different conclusions about the reasonableness of, and the justification for, the deputies’ shooting of the dogs.
7) When determining whether the discretionary function exception applies, a 2-part inquiry is used: 1) whether the conduct at issue is discretionary, involving an element of judgment or choice for the acting employee; and 2) if the act is discretionary, whether that judgment or choice is of the kind the discretionary function exception was designed to shield.
8) The decision whether the Kautzmans’ dogs posed a danger to the deputies or to others, thereby justifying the destruction of the dogs, implicates no social, economic or political policy, and was merely an ordinary individualized judgment made by the deputies a part of their routine work duties. Discretionary function immunity does not shield individualized decisions such as these and does not apply in this case.
Ohio
Pacher v. Invisible Fence of Dayton
798 N.E.2d 1121
Court of Appeals of Ohio, 2003
FACTS: The Pachers purchased a “Top Dog” package from Invisible Fence of Dayton (IFD) for their golden retriever, “Boomer.” The package included installation of a fence, a platinum computer collar, a generated battery plan, and training sessions. Despite the training the Pachers received from Dave Novaks, IFD general manager, they experienced many problems with the product over the next 2 ½ years. In January of 2000, Novaks went to the Pachers’ home to address Mr. Pacher’s dissatisfaction with the invisible fence. Novaks examined Boomer’s collars, tightened one up, and reinstalled the battery on the other. He put both collars on Boomer and took him outside. Boomer entered the signal field and reacted by staying in the yard. Boomer had never worn 2 collars at the same time before. A few hours after Novaks left, Mrs. Pacher put Boomer outside again, without touching or adjusting the collars. She heard a loud piercing bark and smelled a foul odor as Boomer came flying through the front door. For the next 10 days, Boomer was very quiet and would not leave the deck of the house. Mr. Pacher discovered dark black wounds, a lot of irritation, and pus when he removed Boomer’s collar. After that time, the Pachers never again used the invisible fence or collars and they subsequently sued IFD. The trial court dismissed the Pachers’ claim and Boomer’s direct claim for intentional infliction of emotional distress but awarded the Pachers monetary damages for negligence and breach of contract.
ISSUES: Whether the Pachers were entitled to recover for the emotional distress they suffered; whether Boomer was entitled to recover for emotional distress; whether the trial court erred in denying IFD’s motion to dismiss; whether IFD had owed a duty to the Pachers; whether res ipsa loquitur applied; whether IFD was liable for breach of contract.
HOLDINGS:
1) The Pachers failed to state a claim for negligent infliction of emotional distress because they were not bystanders to the injury.
2) Ohio does not recognize a cause of action for serious emotional distress caused by injury to property.
3) Despite Boomer’s fine qualities as a dog, his status as “personalty” deprive him of the legal capacity to sue. Dogs cannot directly recover for their injuries.
4) Ohio must continue to reject recovery for non-economic damages for loss or injury to animals. This is the position that the vast majority of jurisdictions take.
5) The choice that the trial court made to hear additional evidence was a choice expressly allowed by Civ.R. 41(B)(2), and thus, there was no error in that decision.
6) IFD had a duty, as would any party offering services, to conduct business without causing injury to its customers or their property.
7) The trial court did not err in applying the doctrine of res ipsa loquitur in finding that IFD caused injury to Boomer.
8) There is no error in the award against IFD on grounds of negligence and breach of contract.
Ohio
Oberschlake v. Veterinary Associates Animal Hospital
785 N.E.2d 811
Court of Appeals of Ohio, 2003
FACTS: The Oberschlakes took their dog, “Poopi,” to Veterinary Associates Animal Hospital to have her teeth cleaned. While Poopi was under anesthesia, the veterinarian also tried to spay her, even though she had previously been spayed as a puppy. She emerged from anesthesia with a 3 inch closed incision on her abdomen. The Oberschlakes sued, alleging veterinary malpractice, negligent infliction of emotional distress, and loss of companionship. The trial court granted the vet’s motion to dismiss the emotional distress and loss of companionship/consortium claims. The Oberschlakes appealed.
ISSUES: Whether the Oberschlakes were entitled as a matter of law to non-economic damages for the loss of companionship and emotional distress they suffered; whether Poopi had a direct cause of action her own emotional distress.
HOLDINGS:
1) This case is not the proper venue for plowing new ground and changing Ohio law to award non-economic damages for personal property such as pets.
2) In the absence of “exceptional circumstances,” damages for loss of personal property, including pets, are typically limited to the difference between the property’s fair market value before and immediately after the loss.
3) There is nothing that distinguishes this case from any other situation where a family pet is injured by the negligent action of a veterinarian and thus, 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 animal or its caretakers.
4) The Court declines to follow Corso, because it contradicted the Ohio legislature’s classification of dogs as personal property when it overruled prior precedent and held that a pet “occupies a special place somewhere in between a person and a piece of personal property.”
5) Whether or not one agrees with the view that pets are more than personal property, it is clear that Ohio does not recognize non-economic damages for injury to companion animals.
6) Even if Ohio law permitted the award of economic damages, negligent infliction of emotional distress would not have been an appropriate cause of action. Being “shocked” over improper surgery to a dog does not present the type of severe debilitating emotional injury required for negligent infliction of emotional distress.
7) A dog cannot recover for emotional distress or for any other direct claims.
8) One Ohio court has impliedly indicated that dog owners may present claims for intentional infliction of emotional distress. The mental anguish element in such situations must be “so serious and of a nature that no reasonable man could be expected to endure it.”
Oregon
Lockett v. Hill
182 Or.App. 377
Court of Appeals of Oregon, 2002
FACTS: Hill’s two pit bulls, running loose without permission on Santose and Lockett’s property, spotted their pet cat, chased her into a neighbor’s yard, and mauled her to death. Santose and Lockett sued alleging that Hill was negligent in keeping and harboring deadly animals in a residential setting and that they suffered significant mental anguish and were deprived of the cat’s future companionship as a result. The trial court found that the cat’s death was the foreseeable result of Hill’s negligence but that Santose and Lockett could not recover emotional distress damages because no precedent in Oregon law allowed damages for the loss of a pet’s companionship. Santose and Lockett appealed, relying on a theory of constitutive property.
ISSUES: Whether the trial court erred in denying Santose and Lockett damages for emotional distress and loss of companionship in the death of their cat.
HOLDINGS:
1) One exception to the rule that a person cannot recover for negligent infliction of emotional distress if the person is not physically injured, threatened with physical injury, or physically impacted by the tortuous conduct is that such recovery may occur if “the defendant’s conduct infringed on some legally protected interest apart from causing the claimed distress.”
2) Emotional distress damages cannot arise from infringement of every kind of legally protected interest, but from only those that are of sufficient importance as a matter of public policy to merit protection from emotional impact.
3) The court has the limited authority in deciding which independent legally protectible interests are sufficiently important to serve as the foundation for emotional distress damages; its authority does not extend to creating independent legally protectible interests.
4) Santose and Lockett have not directed the court to any authority for the proposition that Hill’s negligent conduct breached a duty over and above the duty to avoid foreseeable risk. The trial court did not err in denying the claim for damages based on emotional distress.
Pennsylvania
Banasczek v. Kowalski
10 Pa. D. & C.3d 94
Court of Common Pleas of Pennsylvania, 1979
FACTS: Edward Banasczek instituted an action in trespass against William Kowalski for money damages resulting from the alleged shooting of two of plaintiff’s dogs. Preliminary objections in the form of a motion for more specific pleading and demurrer were filed on behalf of defendant to plaintiff’s complaint.
ISSUES: Whether there is a basis in Pennsylvania law for compensation for emotional distress and mental anguish to plaintiff as a result of the loss of a pet dog.
HOLDINGS:
1) This court is inclined to follow the line of cases that have recognized the right of dog owners to recover for mental suffering caused by the destruction of the owner’s dog.
2) This court thinks the more enlightened view is to allow recovery for emotional distress in the instance of the malicious destruction of a pet and thus, it denies the defendant’s demurrer.
3) The claim for emotional distress arising out of the malicious destruction of a pet should not be confused with a claim for the sentimental value of a pet, the latter claim being unrecognized in most jurisdictions.
4) This court does not think that the owner of the maliciously destroyed pet must have witnessed the death of his or her pet in order to make a claim for emotional distress.
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 kid a long time ago and that the dog was protective of the porch area. Blaha gave the dog to his dad 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 has cited nothing and the Court has found nothing to support the contention that a possessor’s liability may be super-imposed upon a seller.
5) The Stuards fulfilled their duties as sellers when they relayed to the Blahas their experience with the dogs. 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
City of Garland v. White
368 S.W.2d 12
Court of Civil Appeals of Texas, 1963
FACTS: Officers responded to a call that White’s dog was running at large. Upon seeing the dog, Officer Flannigan fired 2 shots at him, even though the dog was not acting aggressively. The dog ran about 4½ blocks to the White’s home and jumped in a car parked in the driveway. Officer Flannigan then retrieved a shotgun and brought it to the White’s home. Flannigan stated at trial that his purpose in going to the White home with a shotgun was to kill the dog. He stated that when he arrived the dog was in a car, was not growling or barking or doing any harm or damage to anyone. Officers Mize and Brewer then got out of their squad cars and went onto the White property, advancing toward the dog. They did not attempt to inquire about the dog at the White home. The evidence shows that the dog got out of the car and ran into the White garage getting as far away from the officers as he could. The officers made no effort to pull down the overhead door on the garage or to catch the dog in any way. The evidence shows that the dog was standing in the garage on the step leading into the White house from the garage when Flannigan fired 2 shots and killed the dog with the shotgun. The evidence is undisputed at the time the shots were fired the dog was not making any motion to come toward either of the police officers or toward anyone else; that the dog had not barked or snarled at them from the time the officers got out of their cars until it was killed. The shotgun blast not only killed the dog, but damaged the White’s property as well. The Whites were awarded $75 for property damage, $300 for the market value of the dog, and $200 for physical pain and mental anguish. The officers appeal.
ISSUES: Whether the court erred in awarding the Whites damages for the police officers’ destruction of their dog.
HOLDINGS:
1) The general rule is that to justify the killing of a dog in defense of person or property the danger must be imminent and a real or apparent necessity must exist therefore unless there is statutory authority to kill the dog under the circumstances shown.
2) No statute or ordinance in the instant case permitted the killing of the dog under the circumstances shown.
3) The officers had no right to go upon the Whites’ property and to kill their dog or damage their house by the discharging of the shotgun as shown by the evidence.
4) A police officer, even though engaged in the performance of a public duty, is civilly liable when he acts in a wrongful and illegal manner and is guilty of a trespass.
5) The alleged negligence of the Whites as found by the jury was as a matter of law not a proximate cause of the death of the dog under the circumstances shown by the evidence.
6) The action of the officers in killing the dog was admittedly intentional. Contributory negligence is not a defense to an intentional act.
7) The evidence showed that White suffered from nervousness and was upset at the appellants’ action, causing him to miss time from school and affecting his school work. The officers’ contention that the evidence does not support an award for White’s mental pain and suffering is, therefore, overruled.
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.
Wisconsin
Camp v. Anderson
721 N.W.2d 146
Court of Appeals of Wisconsin, 2006
FACTS: Anthony Machones, age 13, and Steven Camp, age 4, were playing in the Camps’ yard with Steven’s dog when an eyewitness saw the dog fly through the air and land in some tall grass. The eyewitness saw Anthony pull some tall reeds or cattails out of the ground, shove them at the dog, and chase Steven with the cattails with feces at the end of them. The eyewitness then saw Anthony jump and land with both feet on the dog. The dog was severely injured and had to be euthanized. The Camps filed action alleging claims for intentional infliction of emotional distress and negligent supervision on the part of Anthony’s parents, Harry and Brenda Anderson. A court-appointed psychologist diagnosed Anthony with a form of autism and Anthony’s defense moved for summary judgment because, based on the psychologist’s opinion, Anthony could not have formed the requisite intent to support the claim. The intentional infliction claim was dismissed by stipulation. The Camps moved to amend their complaint to add a claim for negligent infliction of emotional distress and the circuit court denied the motion. Anthony’s defense later moved for summary judgment on the negligent supervision claim or, in the alternative, to limit the damages for that claim to property loss. The Camps moved to vacate or modify its previous decision denying their motion to amend the complaint. The court denied the Camps’ motion but did not grant the motion of Anthony’s defense. Instead, the court agreed with the Andersons’ alternative argument that the only damages available were for property damage for loss of the Camp’s dog. The parties later entered into a settlement agreement regarding property loss damages but the Camps appealed the circuit court’s decisions regarding emotional distress.
ISSUES: Whether the circuit court erred by not allowing the Camps to amend their complaint to add a claim for negligent infliction of emotional distress against Anthony; whether the circuit court erred in dismissing the Camps’ claim for negligent supervision of Anthony; whether the circuit court erred in not allowing the Camps access to Anthony’s juvenile records.
HOLDINGS:
1) A direct claim for negligent infliction of emotional distress is recognized in Wisconsin and therefore the circuit court erred by denying the Camps’ motion to amend their complaint on that basis.
2) To the extent that Anthony’s defense argued that Rabideau bars recovery for the emotional distress Steven suffered as a result of witnessing the fatal injuring of his dog, this court agrees. Rabideau instructs that public policy bars recovery for the emotional distress of a bystander to an animal’s death.
3) The circuit court’s rulings that form the basis for the Camps’ remaining arguments on appeal were also predicated on its erroneous conclusion that negligent infliction of emotional distress was not an actionable claim. The circuit court must conclude on remand whether or not negligent infliction of emotional distress is sufficiently pled or barred by public policy before a decision can be made on the remaining issues.
Wisconsin
Rabideau v. City of Racine
627 N.W.2d 795
Supreme Court of Wisconsin, 2001
FACTS: Rabideau was returning home when her dog, Dakota, jumped out of her truck and crossed the street to Officer Jacobi’s house where Jed, Jacobi’s Chesapeake Bay retriever, was in the yard. The parties are in disagreement as to the facts concerning what happened next. The City argues that Dakota attacked Jed and that Officer Jacobi, believing that Dakota was about to charge, shot and killed Dakota. Rabideau argues that Dakota was calmly sniffing Jed and had just stepped off the curb, heading back towards Rabideau, when he was shot by Jacobi. Two days after the shooting occurred, Rabideau was informed that Dakota died. Upon hearing this news, she collapsed and was given medical treatment. Rabideau brought action against the City of Racine and Jacobi. The Circuit Court granted the City’s motion for summary judgment and the Court of Appeals affirmed.
ISSUES: Whether public policy precluded Rabideau’s claim for damages based upon the tort of negligent infliction of emotional distress; whether Rabideau established her claim for intentional infliction of emotional distress; whether Rabideau’s complaint encompassed a claim for damages for property loss; whether genuine issues of material fact exist as to whether Jacobi was entitled as a matter of law to shoot and kill Dakota; whether Rabideau’s claim was frivolous.
HOLDINGS:
1) Under Bowen v. Lumbermens Mut. Cas. Co., three elements must be established in an action for negligent infliction of emotional distress: 1) the victim must have been killed or suffered a serious injury, 2) the plaintiff and victim must be related as spouses, parent-child, grandparent-grandchild or siblings, 3) the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene.
2) Rabiedeau cannot maintain a claim for negligent infliction of emotional distress because the victim in this case is not related to Rabideau as a spouse, parent, child, sibling, grandparent or grandchild.
3) Rabideau cannot maintain a claim for the emotional distress caused by negligent damage to her property. Limiting recovery for emotional distress caused by negligent damage to property to the human companion of a companion animal who is killed would not definitively meet public policy concerns.
4) Four elements must be established for a plaintiff to maintain a claim for intentional infliction of emotional distress: 1) that defendant’s conduct was intended to cause emotional distress; 2) that the defendant’s conduct was extreme and outrageous; 3) that defendant’s conduct was a cause-in-fact of the plaintiff’s emotional distress; 4) that plaintiff suffered an extreme disabling emotional response to the defendant’s conduct.
5) Rabideau’s claim for intentional infliction of emotional distress must fail as there is no material issue of fact in the record that suggests that Jacobi acted for the purpose of causing Rabideau emotional harm.
6) Rabideau’s complaint, liberally construed, encompassed a demand for damages for property loss.
7) Genuine issues of material fact exist as to whether Jacobi was entitled to shoot and kill Dakota under Wis. Stat. § 174.01 and therefore, summary judgment was improper.
8) Rabideau set forth a substantial argument in good faith for an extension, modification or reversal of existing law and therefore, her claim was not frivolous.