Wednesday, January 14, 2009

Calculating Damages for Injuries to Pets

I have recently been approached by two potential clients whose pets have suffered injuries. One dog died due to the alleged malpractice of a veterinarian, and one dog was injured due to the faulty design of a kennel. I have been following the developing body of animal law over the past couple of years, so I was aware that courts have been awarding damages above and beyond the actual value of the pet, but it seemed to be a coincidence that the Fourth District Appellate Court issued an opinion dealing with the death of a pet just days after I met with one of these potential clients.

In Leith v. Frost, decided December 31st, the plaintiff's dachshund was mauled to death by the neighbor's Siberian huskie. Apparently, the huskie escaped from a fenced back yard and attacked the dachshund. The trial court found that the owner of the huskie was negligent for letting the dog escape, but only awarded the plaintiff $200 in damages because that was the value of the lost property (the dachshund).

The trial court reasoned that "under Illinois law, a dog is considered personal property. The cost of repairs to personal property is usually the measure of damages, but when the cost of repairs exceeds the fair market value of the personal property, the value of the personal property becomes the ceiling on the amount of damages which can be recovered." The court reasoned that not too many people would be willing to pay more than $200 for a seven year old dachshund, so it awarded the plaintiff $200.

The defendant appealed on the issue of liability and the plaintiff appealed the amount of the damages. The appellate court affirmed liability, but modified the amount of damages up to $5000. With respect to the issue of damages, the appellate court outlined a new theory by which damages for injuries to pets can be calculated.

The court noted that "Illinois courts recognize that certain items of personal property, such as heirlooms, photographs, trophies, and pets have no market value. Damages for harm to such items are not restricted to nominal damages. Rather, damages must be ascertained in some rational way from such elements as are attainable."

The court went on to say that "the proper basis for assessing compensatory damages in such a case is to determine the item's actual value to the plaintiff. The plaintiff is entitled to demonstrate its value to him by such proof as the circumstances admit."

In this case, the plaintiffs demonstrated how much their dachshund was worth to them by paying nearly $5000 in veterinary bills to try to save it. So, the court awarded the plaintiffs the full amount of their vet bills.

I believe lawyers will begin to get creative in their attempts to demonstrate pets' values to their owners using "such proof as the circumstances admit." It won't be long before courts begin to allow evidence regarding a pet's value as a companion and as a member of the family. That will make for some interesting examinations during jury selection. Seat the right jury and I could possibly see huge dollar amounts being awarded for the death of a pet.


Michael D. Wong said...

What is even more interesting is the treatment of pets in a Divorce. What happens when there are two pets, but neither party wants the other to have them, but neither party wants to split the two pets up? Needless to say, it is a very complex problem which the courts have not truly had to deal with yet. There is some minor case law on it - which goes to basic property law. But what happens when neither party wants the pets designated as "property"? - for an interesting read search in the ISBA Family law discussion group "ferrets" for a case on divorce and ferrets.

Michael W. Huseman said...

Animal Law Follow Up:

Bob Barker, who retired last year from "The Price is Right," just donated $1 million to the University of Virginia Law School to establish an animal law program.

The AP reports that since retiring Barker has donated millions to establish animal-rights programs at law schools nationwide, including those at Harvard, Columbia, Georgetown, Duke, Northwestern and Stanford and UCLA.

Waseem A. Mateen said...

Animal Law is quite a controversial topic, and as you stated, “lawyers will begin to get creative in their attempts to demonstrate pets' values to their owners It won't be long before courts begin to allow evidence regarding a pet's value as a companion and as a member of the family.” I recently asked a professor, Rebecca J. Huss, at my law school about this topic and she directed me to her Loyola University Chicago Law Journal article on this very topic!

There are many interesting parts to the article, it begins talking about the current trends in veterinary malpractice claims, and the possible reasons in which they are the trends are increasing. The article then talks about the current malpractice claims and their defenses. By far the most interesting read for me was about half way through when Professor Huss began discussing the types of non-economic damages.

As noted prior, the majority opinion is that a pet is considered the property of an individual. As such the claims can be very limited, however what about the old saying, “dog is man’s best friend”? If this is the case can the owner be entitled to more then simply the “fair market value” of the dog? Can the relationship be worth more? The article goes in depth on damages of Emotional Distress, Punitive Damages, and Loss of Companionship.

If you’re in for an interesting read here is the link to the complete article (pdf format)