Via David Giacalone comes a link to this article from the latest issue of Time magazine: Woof, Woof, Your Honor, a brief overview of the expanding horizons of litigation involving dogs and other animals. This paragraph holds particular interest for me [see "Disclosure" below]:
Some pet cases have reaped surprisingly large awards. Marc Bluestone of Sherman Oaks, Calif., won a $39,000 jury award last February after Shane, his mixed-breed Labrador retriever, valued by the court at $10, died just days after coming home from a two-month stay in a pet clinic. Although the suit took five years, cost more than $300,000 in legal fees and is on appeal, Bluestone says it was all worth it: 'I can't get my baby back, but I did get justice.'
Dogs and other animals have, historically, been viewed as items of personal property, to be valued in exactly the same way as any other property. That is, the usual measure of damages is the difference in the property's market value before and after the harm is done by the defendant: either the cost of repair or the cost of replacement, whichever is less. The discrepancy between the dog's value ($10.00) and the jury's verdict ($39,000) represents an award of damages largely for Mr. Bluestone's claimed emotional distress at the loss of his pet.
Although a minority of states -- Hawaii and Florida among them -- have permitted an animal owner to recover damages for the owner's distress when the animal is injured through negligence, the majority of states that have considered the question have come down on the side of the established common law rule: despite the well-known emotional bonds that can and do exist between humans and their non-human companions, the distress that the human may suffer when his or her pet is injured through negligence is not a loss for which any monetary compensation will be awarded. No published California appellate case has addressed the question, though there are several cases indicating that merely negligent loss or destruction of other types of personal property -- irreplaceable family heirlooms, for example -- will not support an award of damages for emotional distress. The Bluestone case will likely present that question squarely as it relates to animals.
It is worth noting, before anyone leaps to the conclusion that the very real emotional consequence of injury to a pet "must" be compensated, that there are numerous situations in which those same emotional damages are denied for injury to a fellow huma. In California, the emotional distress attendant to serious injury sustained by your child or spouse is usually recoverable only if you were a near-direct witness to that injury -- for example, by being personally present when your child or spouse is struck by a negligent motorist, as opposed to hearing about it a few minutes later -- and there is no recovery at all for direct perception of the injury of a person to whom you are unrelated by blood or marriage -- such as your long-time companion or fiancé -- no matter how close and genuine the emotional bonds between you and the other. Spouses can recover for the loss of one another's companionship or "consortium" in California, but no similar recovery is available for the relation between parent and child. These are largely public policy decisions: to avoid the prospect of infinite and unpredictable liability, the line must be drawn somewhere, and these are the lines the courts have elected to draw.
Also notable: The emotional distress claim in Bluestone was framed in terms of recovery for the "peculiar value" of the damaged property (the dog). While California and other states have long permitted additional damages to be recovered when property is shown to have a particular value to its owner greater than that same property would have to someone else, the courts have generally held that "peculiar value" does not include the emotional or sentimental value of property.
For Further Reading: A newspaper report [pdf] on the Bluestone verdict being used in a course at the veterinary school at UC, Davis, and commentary on the case from the American Veterinary Medical Association.
Disclosure: I represented a veterinarian who was briefly joined as a defendant in the Bluestone litigation. The doctor in question had an extremely tenuous connection to the treatment of Mr. Bluestone's dog and did nothing wrong. My client was not named as a defendant until more than four years after the case commenced, and was dismissed voluntarily prior to trial in exchange for a waiver of the right she would otherwise have to recover certain of her legal costs.
*For Further Non-Legal Reading: This post's Latin title comes from the famed mosaic warning sign found at Pompeii. Much more information than you might expect about the particular Roman breed immortalized there can be found here.
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