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C.A. Spurns Call for New Rule on Damages for Dog’s Death
Fourth District Panel Declines to Part From Cases Limiting Damages for Negligent Act Causing Demise of Pet; Opinion Rejects View That Plaintiff Should Receive Recovery Based on ‘Actual Value’ of the Pet to Owner
By Roger M. Grace, editor
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Above is a snapshot of Bitty, an Irish Wolfhound, with owner, Sierra Mowery. Bitty’s death resulted from admittedly negligent treatment at El Centro Animal Clinic in Imperial County. Div. One of the Fourth District Court of Appeal on Monday rejected Mowery’s contention that damages should be based on the unique value of the animal to her. |
Div. One of the Fourth District Court of Appeal has declined to depart from the traditional view that no damages may be awarded for the loss caused by the death of a pet through the negligence of the defendant, instead limiting recoveries to the fair market value of the animal while alive, plus the amount of veterinarian bills incurred in an effort to restore the pet’s health.
The justices spurned the appellant’s call for adoption of a standard based on the “actual value” of the animal to the plaintiff, analogizing the loss to that of a family heirloom with special value. Santa Monica attorney Scott Pomerantz, who represented plaintiff/appellant Sierra Mowery in the trial court and on appeal, said yesterday that review will be sought in the California Supreme Court.
Acting Presiding Justice Joan K. Irion authored the Fourth District’s opinion, filed Monday. It affirms a judgment for $24,812.84 plus costs that was stipulated to by the parties after Imperial Superior Court Judge Jeffrey B. Jones granted a motion in limine barring Mowery from introducing evidence that her dog, Bitty, “had a ‘peculiar’ or ‘unique’ value” to her.
Jones also barred evidence of “ ‘emotional distress,’ grief, or loss of companionship, or any physical consequence of same” that Mowery allegedly sustained as a result of the injury to, and death of Bitty, but that ruling was not contested on appeal.
‘Piece of Property’
In making his rulings, Jones said that “as a piece of property, normally, the value for the death of the dog is the value of the dog at the time of its death if caused by negligence or other wrongful conduct,” adding that, under decisional law, the cost of veterinarian bills is also awardable as an exception to the rule that a plaintiff may only recover the lesser of “the cost of repair or a replacement for depreciation.”
It is undisputed that defendant El Centro Animal Clinic, Inc. was negligent, based on the symptoms of the dog, in failing to take X-rays of Bitty, a six-year-old pre-bred Irish Wolfhound, which would have revealed a gastrointestinal obstruction. The condition worsened and, following two unsuccessful surgeries performed elsewhere, Bitty died.
The parties were in agreement that a family pet, rarely adoptable, has no fair market value and that the amount spent on veterinarian bills was $34,811.84, offset by a $9,999 payment by Dr. Oliver C. Kenagy in a settlement.
Mowery’s Brief
Mowery’s opening brief on appeal, prepared by Pomerantz, notes that “no Court of Appeal has published an opinion on how California law assesses damages to the owners of pets whose lives are wrongfully taken” and argued that “[p]et owners need a court to make the law clear so that trial courts will be compelled to follow it.” It urged that decisions of sister jurisdictions be taken into account.
The appellant contended in the brief:
“Unfortunately, California trial courts consistently deny compensatory damages to pet owners for their deceased pets by applying the market value approach. Trial courts might be trying to discourage litigation by aggrieved pet owners. Whatever the reason this injustice has persisted for decades and should be corrected.”
Irion’s opinion was not certified for publication, and views expressed in out-of-state opinions cited by Mowery were not considered, with the jurist explaining in a footnote:
“[W]e have applied settled California law on the measure of damages to the specific facts of this case. Because that law is sufficient to resolve this appeal, we need not, and do not, consider the cases from other states cited by Mowery.”
Out-of-State Cases
Among the out-of-state cases Mowery asked the Court of Appeal to weigh was a 1938 decision by the Supreme Court of Wisconsin holding that “family pictures and heirlooms, which cannot be replaced and are valuable only to the owner may be compensated to the extent of the reasonable special value of such articles to the owner.”
The brief points out that “[s]ince at least 1987 Illinois courts have applied the ‘actual value’ measure of damages to family pets,” quoting a 1987 opinion from that state’s First District Appellate Court as saying that “there are a number of items of personal property that have no market value” such as “heirlooms, photographs, trophies and pets.”
It holds that the “proper basis for assessing compensatory damages in such a case is to determine the item’s actual value” to the plaintiff, who is “entitled to demonstrate its value to him by such proof as the circumstances admit.”
Georgia Opinion
Mowery’s opening brief cites a 1907 Georgia Supreme Court opinion that says:
[A]nything to which a person may hold a legal title is property, whether it has any market value or not. It may have intrinsic value, but no exchangeable value. It may serve a useful purpose, and yet be unsalable and unexchangeable. No one may want it, or have a use for it, except he who possesses it, and yet to him it may be a thing of value; that is, of intrinsic value, something that can be utilized in the accomplishment of his purposes or the attainment of his desires.”
The brief comments:
“The importance in the legal system’s acknowledging this ‘intrinsic value’ becomes especially salient in the context of pets. Each year hundreds of thousands of unadopted dogs and cats are euthanized. Yet many pet owners would risk their lives to save their own pet.
“If pet owners do not have to risk their lives for their animals they inevitably must open their wallets. According to a 2023 study Californian dog owners lead the pack by spending more on their dogs than in any other state—an average of $35,452 over the life of their dog. The investment of time and money reflects that the value of pets to their owners is very real.”
A footnote in the brief says:
“This appeal only addresses the proper measure of property damage due to negligent acts. It already is well-established that pet owners may recover emotional distress damages for intentional torts that harm a pet.”
Defendant’s View
Robert H. Stellwagen Jr., Tiffany E. Garrick, and James C. Jardin of the Pasadena law firm of Collins + Collins maintained in El Centro’s reply brief:
“This case presents no novel issues of law warranting the Court’s consideration. The law governing pet owner recovery for veterinary malpractice has long been established under California law, which permits the recovery of reasonable expenses incurred in treating a family pet allegedly harmed due to veterinary malpractice, even where those expenses exceed the market value of the dog. This ‘reasonable value’ approach to recovery for veterinary malpractice is in stark contrast to recovery for trespass to other chattels, which limit recovery to the lesser of market value or repair costs in the absence of evidence establishing an exception to the general rule prohibiting such recovery.”
The reply brief declares:
“[P]et owner recovery for the death or injury of a pet as a result of veterinary malpractice is limited to special damages in the absence of intentional conduct. This rule has been consistently applied in California for nearly two centuries.”
It contends that “[i]n the absence of a cognizable offer of proof for recoverable special *24 damages in addition to the costs of treatment, Mowery is limited to recovery of the reasonable costs of treatment.”
Emotional Distress
Although Mowery did not base her appeal on the granting of the motion in limine (No. 1) barring evidence of emotional distress and loss of companionship, much of Irion’s discussion centers on the correctness of Jones’s ruling on that motion. Reciting the current legal view—which she embraced—Irion wrote:
“[T]he owner of a tortiously injured pet with no market value may recover the reasonable and necessary treatment costs and other special expenses attributable to the injury.
“An owner of a pet that dies from the negligence of another, however, may not recover damages for the emotional distress the owner suffers as a result of the negligence….Nor may such an owner recover damages for the loss of the companionship of the pet caused by the negligence.”
‘Family Heirloom’
She went on to recite Pomerantz’s argument before Jones that the loss of Bitty should be treated the same as the loss of “a family heirloom,” and commented:
“Since the value of a family heirloom often is largely, if not exclusively, sentimental…, it seems to us this was an offer to put before the jury inadmissible evidence of the strong emotional attachment Mowery had to Bitty as a companion. The trial court correctly ruled, in granting the Clinic’s motion in limine No. 1, that a pet owner may not recover from the party that negligently caused the pet’s death damages for emotional distress or loss of companionship….Implicitly recognizing this legal limitation, Mowery concedes in her reply brief that she does not seek such damages for Bitty’s death.
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Depicted above is Bitty who, the owner acknowledged in a lawsuit over the dog’s death through negligence, had no fair market value but did, she asserted, have a unique and considerable value to her. |
Mowery’s reply brief says:
“…Respondent alleges without any basis that Ms. Mowery seeks damages for emotional distress or loss of companionship. This is not fair because she has expressly not sought these items of damages.
“Further, the response brief implies that emotional distress damages are somehow inextricable from actual value damages. This is not the case, and the trial court easily may bar evidence of emotional distress to avoid any juror confusion.”
The case is Mowery v. El Centro Animal Clinic, D082522.
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