Tuesday, August 18, 2009

What is the value of a pet? Damages for emotional distress of owners and animal rights law.

What is the value of this very handsome dog, my Rusty Dog, my precious pooch? Historically, pets are considered personal property and therefore are valued at their replacement cost. A case currently pending in a Virginia State trial court will decide if a pet can be valued for its “unique value [ ] as a companion animal.”

The fight will be uphill. The Virginia Supreme Court, as recently as 2006, maintained that pets are personal property, and owners are entitled to the value of that property or the value of the injury inflicted upon that property. Emotional or mental anguish for the destruction or injury to that property is not compensated for. In Kondaurov v. Kerdasha, plaintiff sought and was awarded damages at trial for the emotional distress she suffered when witnessing the injuries inflicted to her dog during a car accident. The claim was negligence. On appeal, the Supreme Court reversed the damages award, reasoning that although there is an emotional bond between a pet owner and their pet – likened to that of a parent to its child in the opinion –pets have been historically treated by law as merely property. Further, the Court reasoned that not only has Virginia case law never awarded damages for emotional distress for injuries incurred to personal property, but that had the Virginia Legislature intended a different result, statutory provisions regarding pets and their attendant value would have been written more broadly.

Plaintiff counsel in the currently pending case has anticipated this, and intends to analogize the pet to the jury as a family heirloom. (Though good luck Lanny – there’s case law, albeit old, that says sentimental value over personal property cannot be recovered, either). Minimum damages sought are $15,000; claims include assault and battery, unlawful killing of a dog, and intentional infliction of emotional distress.

While most jurisdictions concur in this historical platitude, some courts do award damages for emotional distress caused by the intentional injury or killing of animals.

In La Porte v. Associated Independents, Inc., the Supreme Court of Florida reinstated a trial judgment awarding plaintiff damages for the “malicious destruction” of her dog. There, a garbage collector hurled a garbage can at a miniature daschund that was tethered away from the collector. Although the act killed the dog, the collector laughed at both the owner and the dog while walking away. Plaintiff’s claim sounded in tort, seeking recovery for her emotional distress. The Court reasoned the affection between a dog and its owner is “a very real thing,” and that the “malicious destruction” of a dog provides an element upon which the owner should be able to recover damages for. This ruling has since been distinguished by Kennedy v. Byas. There, the Court of Appeal of Florida for the First District refused damages for veterinary negligence (ruling La Porte precedent requires maliciousness).

Similar case law exists in Idaho (plaintiffs could recover for intentional infliction of emotional distress when defendant negligently and recklessly shot and killed the family pet donkey), Kentucky (defendant conduct was so outrageous, the object subject to that conduct– family pet horses – was not a detrimental factor to an owner claim for intentional infliction of emotional distress), and Louisiana (mental anguish award increased where defendant conduct’s caused the abortion of a child’s anticipated pet colt).

Related p.s. : Both Michael Vick and the Eagles stink.

Hat-tip: Allison Klein at WaPo.

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