Weekly Law Resume - October 11, 2012: Pet Owners Can Recover Damages for Emotional Distress Caused by Another’s Intentional Act

by Low, Ball & Lynch
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[author: Vernice Louie]

David Plotnik, et al. v. John Meihaus, Jr., et al.
California Court of Appeal, Fourth Appellate District

In the past, California courts have not recognized a right to recover emotional distress damages for injuries to one’s pets or animals. Here, the court held that a pet owner may recover for mental suffering caused by another’s intentional act that injures or kills his or her pet.

Plaintiffs David and Joyce Plotnik sued their neighbor defendant John Meihaus, Jr. (“Meihaus”) and his two sons, defendants Greg Meihaus and John Meihaus, III for both contract and tort claims arising out of several incidents with their neighbor, including injury to their dog.

Shortly after moving into a home with a rear portion that abutted Meihaus’ lot, plaintiffs claimed problems with the Meihaus family and built a six-foot fence along the properties’ common boundary. The Meihaus family sued plaintiffs and the community association. That lawsuit resolved by a written settlement.

Soon after the settlement, a number of incidents occurred between the parties which eventually escalated when plaintiffs’ miniature pinscher, Romeo, ran into Meihaus’ backyard. David Plotnik then heard Romeo “[bark] and then squeal” and then he saw Romeo “[roll] down the slope and through the open gate and hit a tree.” Meihaus said he used a baseball bat and “guide[d]” plaintiffs’ dog back to their yard. Although Meihaus denied hitting Romeo, he eventually needed surgery to repair his leg and a stroller to help him get around after the surgery. The surgery cost $2,600 and the stroller cost $209.53.

Later that same afternoon, Greg Meihaus and John Meihaus III confronted David Plotnik for 10 minutes. They called him various derogatory names and said “We are going to kill your dog.” David Plotnik testified that he was scared and began shaking.

The jury awarded David Plotnik over $175,000 against the three defendants and Joyce Plotnik over $255,000 against Meihaus. The awards included emotional distress damages resulting from Romeo’s injury. Plaintiffs were also awarded $93,780 in attorney fees against Meihaus on the breach of contract claim. The court entered an amended judgment after plaintiffs accepted a remittitur reducing the damage awards. Defendants appealed both the original and amended judgments.

The Court reduced parts of the award after finding the awards duplicative or unsupported by evidence. The Court upheld the award concerning the attack on Romeo under the theory that plaintiffs can recover under the trespass to personal property cause of action for the emotional distress they suffered from Meihaus’ attack on Romeo with a baseball bat. Dogs are personal property. (Johnson v. McConnell (1889) 80 Cal. 545, 548-549); Pen. Code, Section 491; Civ. Code, Section 3340.) The Court pointed out that under the claim of trespass to personal property one is generally allowed to “recover only the actual damages suffered by reason of the impairment of the property or the loss of its use. [Citations.]” (Zaslow v. Kroenert, 29 Cal.2d 541, 551) In Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1558 the court held that a pet owner could recover “the [reasonable and necessary] costs of care of the pet attributable to the injury” caused by another.

Under the circumstances of this case, the Court said good cause exists to allow the recovery of damages for emotional distress. The Court pointed to Johnson v. McConnell, supra, 80 Cal. 545, 549 where dogs were described as “[having] nearly always been held ‘to be entitled to less regard and protection than more harmless domestic animals,’ it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.” Additionally, “one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal. (Civ. Code, Section 3340.) “Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime. (Penal Code, Section 597(a)). .

The Court also noted that other states have allowed pet owners to recover for emotional distress caused by another’s wrongful acts which resulted in the pet’s injury or death.

The Court distinguished the negligence-based claims and denied the emotional distress damages from those claims. For one of the negligence based claims, the Court relied on McMahon v. Craig (2009) 176 Cal. App. 4th 1502 where the court held a pet owner could not recover damages for emotional distress or loss of companionship based on a veterinarian’s negligent treatment that resulted in a dog’s death. “Regardless of how foreseeable a pet owner’s emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated…” (Id. at p. 1514.)

Therefore, the Court upheld both the economic and emotional distress damages plaintiffs recovered from Meihaus’ intentional act of striking Romeo with the baseball bat.

COMMENT

Courts have recently allowed recovery of substantial medical bills for an injured pet. Expanding on this, the present case opens the door on recovery of emotional distress damages for actions involving injuries to pets, at least where the defendant acts intentionally.

For a copy of the complete decision see:

http://www.courtinfo.ca.gov/opinions/documents/G045885.PDF

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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