What kind of a recovery is available when your pet is injured or killed by someone’s negligence? Pretty much nothing, according to Washington State law.
Most pet owners will tell you that the value of a pet animal is qualitatively different than non-animated property and they think they can recover for their pet’s pain and suffering and for their own emotional distress for an injured or killed family pet. Unfortunately, neither type of damage is recoverable. Under clear Washington State Law, pets are treated as “personal property” for purposes of determining what damages are recoverable.
“There is no dispute, that as a matter of law, dogs are characterized as personal property.” Mansour v. King County, 131 Wash.App. 255, 267, 128 P.3d 1241 (2006). The three part analysis for determining the correct measure of damages for the loss of personal property is set forth in McCurdy v. Union Pac. R. Co., 68 Wash.2d 457, 413 P.2d 617 (1966). Under McCurdy, the plaintiff has the burden of producing evidence to establish which measure of damages applies and the amount of damages.
If the property is a total loss the measure of damages is the value of the property destroyed or damaged. This is its market value, if it has a market value. If the property is damaged but not destroyed, the measure of damages is the difference between the market value of the property before the injury and its market value after the injury. [Again, if it has a market value.] If the property does not have a market value, then if it is a total loss, the measure of damages is the cost to replace or reproduce the article. If it cannot be reproduced or replaced, then its value to the owner may be considered in fixing damages. Sherman v. Kissinger, DVM, 146 Wn.App. 855, 871, 195 P.3d 539, 2008 (Citing McCurdy, 68 Wash.2d at 467).
“Market value” is defined to mean the “reasonable sum of money which the property would bring on a fair sale, by a man willing to sell, but not obligated to sell, to a man willing to buy, but not obligated to buy.” E.G. McCurdy, 68 Wash.2d at 472.
Attorney Steve Knapp recently settled a case in which a car accident resulted in severe injuries to the dog in the plaintiff’s vehicle. In this case, since the dog was highly trained and provided professional services to its owner, the settlement included thousands of dollars in damages to the dog.
But what if a pet doesn’t have a market value? What would the market value be for that loyal and trusted mixed breed dog you got for free from the pound, and which you’ve owned for years? Can a person recover for the sentimental value or the “intrinsic value” of their pet?
In cases where there is no market value for a pet, then a plaintiff may be entitled to intrinsic value, but not for sentimental value. The plaintiff must first meet his/her burden of proving that there is no market value, before intrinsic value may be considered. In order to seek intrinsic value, the plaintiff has the initial burden to produce evidence showing that the pet does not have a fair market value and cannot be replaced. Examples could include a pedigreed hunting dog that has a congenital defect which keeps it from hunting, or a cherished mixed breed dog from an animal shelter. If the plaintiff claiming damages meets this burden, then the burden shifts to the other party to present evidence on the measure of damages. Agranoff v. Morton, 54 Wash.2d 341, 347, 340 P.2d 811 (1959).
Having once met that burden, the plaintiff may then offer evidence to establish the intrinsic value of the pet. But what is a pet’s “intrinsic” value? It is essentially the value of the pet to its owner but it cannot include “sentimental value.” Sherman, 146 Wash.App. at 871-872 quoting Mieske v. Bartell Drug Co., 92 Wash.2d 40, 45, 593 P.2d 1308 (1979). In order to determine intrinsic value, the finder of fact (judge or jury) must consider objective evidence of the pet's utility and services and not the value the owner attributes to the pet's companionship or other sentimental value. Sherman, 146 Wash.App. at 871-72.
Other courts have considered the following factors in determining a pet’s intrinsic value: (training, Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285, 287 (1980) (training increases the value of a dog, U.S. v. Hatahley, 257 F.2d 920, 923 (10th Cir.1958) (a dog’s training and accomplishments affect its value on the open market, McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 644 N.E.2d 750 (Ohio 1994). A pet’s value may also include considerations such as its pedigree and awards it has earned.
Negligent treatment of a pet by a veterinarian is not actionable as medical malpractice. In the Sherman case, Division I of the Court of Appeals ruled that the “medical malpractice act does not apply to veterinary care” for multiple reasons including that RCW 70.02.010(5) defines “health care” as treatment “that affects the structure or any function of the human body” and that the legislature uses the term “patient” throughout that statute to refer to humans.” Sherman, 146 Wash.App. at 869 (Emphasis added). Thus, if a pet dies during a veterinarian procedure, the owner is not entitled to seek damages under the medical malpractice act, and is limited to the types of damages described within this article, namely market or intrinsic value.
Similarly, this article deals only with damages resulting from injury or death to a pet caused by negligence. A pet owner may be entitled to additional damages, including emotional distress damages, where a third party maliciously injures or kills a pet. See, Womack v. Rardon, 133 Wash.App. 254, 263, 135 P.3d 542 (2006). But that topic is beyond the scope of this article.
Where a pet is negligently injured or killed, the owner is not entitled to recover loss of companionship, emotional distress damages or damage to the human-animal relationship. Pickford v. Masion, 124 Wash.App. 257, 260, 98 P.3d 1232 (2004).