Law Life: N.J. court rejects damages for pet's traumatic loss

Pat Murphy,
The Daily Record Newswire

Pet owners have generally been rebuffed in efforts to expand the scope of damages available for the tortious loss of a beloved animal.

This week, one of the heavy hitters weighed in on the subject, and once again a distraught dog owner will have to settle for far less than her claimed damages.

“Although we recognize that many people form close bonds with their pets, we conclude that those bonds do not rise to the level of a close familial relationship or intimate, marital-like bond,” said the New Jersey Supreme Court in rejecting an emotional distress claim in McDougall v. Lamm.

The case involves the tragic end of Angel, a nine-year old “maltipoo.” Apparently, a maltipoo is a dog that is half maltese and half poodle. On the dog spectrum, you may as well own a cat.
My chocolate lab Hedy is a “real” dog. As the owner of a real dog, I have some trouble accepting the legitimacy of such foo-foo creations as maltipoos. But I do concede that they are cute. And I have no doubt that the owners of maltipoos love their animals.

So I have no doubt that Joyce McDougall was truly distraught when suddenly she saw a large, vicious dog run out from a nearby home, grab her Angel by the neck, and shake the little dog until it was dead.

The attack occurred on June 7, 2007, when McDougall was taking Angel for a walk in Morris Plains, N.J. The scene of the attack was outside the home of Charlot Lamm, who owned the dog that killed Angel.

McDougall sued for negligence, alleging that Lamm breached a duty of care by failing to secure her dog. In the second count of her complaint, McDougall alleged that she suffered emotional distress both from witnessing the death of Angel and the loss of the dog’s companionship.

McDougall bought Angel as a puppy for $200 in 1997. When she later testified at trial, McDougall said that a new puppy would cost $1,395. She also described Angel as a “friendly, lively, energetic dog” that loved children. Apparently, Angel was also talented, able to perform many tricks and stunts.

I must concede that Angel was way more talented than my Hedy. Hedy doesn’t perform tricks, unless you call lying on your back to have your belly scratched a trick.

Getting back to McDougall’s case, Lamm stipulated to liability and the trial judge was left to decide damages. On McDougall’s negligence claim, the judge awarded $5,000 to compensate her for the replacement cost of Angel and the loss of a well-trained pet.

That sounds more than fair given the evidence.

But, of course, any real money would come from McDougall’s emotional distress claim. And, of course, McDougall faced the basic problem that, as in most states, New Jersey law categorizes dogs as a form of personal property. Further, emotional distress damages aren’t available for property loss.

The trial judge followed the state’s well-established precedents and dismissed McDougall’s emotional distress claim.

McDougall took her case to the state’s supreme court. She argued that, because pets have achieved an elevated status that makes them true companions, they should no longer be considered to be mere personal property.

But last week, the New Jersey Supreme Court rejected McDougall’s invitation to expand the remedies available to pet owners and recognize a new cause of action for traumatic loss:
[W]e have strictly limited the kinds of relationships that can support a [traumatic injury] claim precisely because of our intention to preserve the essential principle of foreseeability so as to serve the ends of fairness to all parties. It would make little sense, we think, to permit plaintiff to recover for her emotional distress over the loss of her dog when she would be precluded from any such recovery if she instead had the misfortune of watching the neighbor’s child, whom she regarded as her own, torn apart by a wild animal. Our carefully limited authorization for [emotional distress] damages, which would not permit recovery for observing the death of most humans, simply cannot permit recovery for watching the death of a non-human.

So McDougall will have to be satisfied with the $5,000 in compensatory damages awarded on her negligence claim. For her emotional distress, I would suggest a puppy.

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