Opinion
No. 2002-569-Appeal. (PC 01-3682)
November 25, 2003
ORDER
May a party recover compensation for mental suffering and loss of companionship resulting from the loss of a pet due to the negligence of another?
The plaintiff, Holly L. Hey (plaintiff or Ms. Hey), appeals the granting of defendants', James Moran's and Maxi Drug, Inc.'s (defendants), motion for partial summary judgment wherein judgment was entered in favor of defendants on those portions of plaintiff's amended complaint seeking compensation for mental suffering and anxiety and loss of companionship in connection with the loss of her dog. This case came before the Supreme Court for oral argument on October 8, 2003, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has been shown and that this matter should not be summarily decided.
For purposes of the motion defendants conceded as true all material facts as asserted by plaintiff in her amended complaint and discovery responses. Ms. Hey was the owner of a wirehaired dachshund named Fever. In the summer of 2000, Fever came under veterinary care for mitral valve disease and a heart murmur. The veterinarian prescribed a drug called Aminophylline for the dog's medical condition. The plaintiff took the prescription to a pharmacy operated by Maxi Drug in Providence to be filled. The pharmacist mistakenly dispensed Amitryptiline instead of Aminophylline. Ms. Hey alleges that as a direct and proximate result of the negligent misfilling of the prescription, Fever suffered serious physical reactions, including, but not limited to, heart arrhythmia and congestive heart failure, and eventually had to be euthanized.
The plaintiff filed a complaint in Superior Court seeking damages resulting from defendants' alleged wrongdoing. Count 1 of her amended complaint asserts that she suffered not only economic losses, but also mental suffering and anxiety; count 2 seeks compensation solely for mental suffering and anxiety from the loss of Fever; and count 3 asserts a claim for the loss of Fever's companionship. The motion justice granted summary judgment in favor of defendants as to counts 2 and 3 and the parts of count 1 "wherein the plaintiff [sought] compensation for the loss of enjoyment and companionship of her dog and for plaintiff's mental suffering and anxiety in connection with the loss of her dog."
This appeal presents the question of whether mental suffering and loss of companionship may be considered as compensable elements of damages when recovery is sought for the loss of a companion animal due to negligent conduct.
We recognize that human beings are capable of forming deep and enduring emotional attachments to their pets. We live in a society where many owners tend to anthropomorphize their pets and treat them as cherished members of the family. Such characteristics and virtues are ascribed to companion animals as loyalty, fidelity, courage, protectiveness, and love, both unconditional and nonjudgmental.
"In the words of Lord Byron: 'Near this spot are deposited the remains of one who possessed beauty without vanity, strength without insolence, courage without ferocity, and all the virtues of Man, without the vices. This praise, which would be unmeaning flattery if inscribed over human ashes, is but a just tribute to the memory of Boatswain, a dog.' (Lord Byron, Inscription to the monument of a Newfoundland dog (1808).)" Katsaris v. Cook, 180 Cal.App.3d 256, 269 (Cal.Ct.App. 1986) (Sabraw, J., concurring in part and dissenting in part).
While the cognitive and emotive attributes of animals are best left to scientists and poets, there can be little doubt that from the perspective of many animal owners, the emotional bonds are very real.
Historically, under Rhode Island law, a dog is classified as personal property, Harris v. Eaton, 20 R.I. 81, 84, 37 A. 308, 309 (1897) (interpreting G.L. ch. 93, § 7), and a plaintiff's damages for its wrongful injury are limited to the fair market value of the property prior to its loss. See Goodbody Co. v. Parente, 116 R.I. 437, 440 n. 2, 358 A.2d 32, 33 n. 2 (1976).
Few would argue, however, that the market value of a pet is commensurate with the loss suffered by the animal's owner. The value of such an animal generally derives from its relationship with its human companion rather than from any calculable market value. Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997).
A fundamental tenet of tort law is that a tortfeasor should pay for the damages proximately caused by his or her tortious conduct in order to make whole the person who has suffered from such conduct. While we recognize the enormous capacity for humans to form emotional bonds with animals, we know of no precedent in Rhode Island that would permit a pet owner to recover damages for mental suffering and anxiety or loss of companionship, or other noneconomic damages, when a pet is negligently injured or killed.
Similarly, it would appear from a review of decisions of other states that pets or companion animals are treated as personal property, and damages for noneconomic injuries caused by negligence generally are not allowed. Jankoski v. Preiser Animal Hospital, Ltd., 510 N.E.2d 1084 (Ill.App.Ct. 1987) (dog owners could not recover for loss of companionship for the defendant's negligently causing death of a dog);Harabes v. The Barkery, Inc., 791 A.2d 1142 (N.J.Super.Ct. Law Div. 2001) (public policy considerations prevented dog owners from recovering for negligent infliction of emotional distress and loss-of-companionship damages in connection with the loss of their dog, who allegedly died of medical complications after she was negligently subjected to extreme heat for an extended period of time at dog-grooming business); Daughen v. Fox, 539 A.2d 858, 865 (Pa.Super.Ct. 1988) (holding that "under no circumstances, under the law of Pennsylvania, may there be recovery for loss of companionship due to the death of an animal."); Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001) (public policy precluded owner's claim for damages based upon the tort of negligent infliction of emotional distress).
Some states do allow damages for intentional infliction of emotional distress if wrongful conduct is either intentional, willful, malicious or reckless. "[T]he affection of a master for his dog is a very real thing and * * * the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal." La Porte v. Associated Independents, Inc., 163 So.2d 267, 269 (Fla. 1964).
A few jurisdictions have gone further and allowed recovery for emotional damages caused by the negligent death of a companion animal.Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981) (recovery allowed for mental distress suffered as a result of the negligent destruction of pet dog).
We acknowledge that "[l]abeling a dog 'property' fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog." Rabideau, 627 N.W.2d at 798. "[A] pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property." Corso v. Crawford Dog Cat Hospital, Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979).
Recognizing noneconomic damages resulting from the negligent injury or death of a companion animal as a legally cognizable claim, however, necessarily implicates a variety of public policy concerns; matters perhaps more appropriately left to the General Assembly. Such concerns include the difficulty of quantifying damages, the risk that a tortfeasor will be exposed to unrealistic damage claims, limiting recovery to the "owners" of the companion-animal rather than to others who might also be emotionally attached to the same animal, identifying the class of companion animals for which recovery might be allowed, and the potential impact on the veterinary profession.
We have, however, as Ms. Hey argues, permitted recovery for noneconomic losses, including mental suffering and anxiety, resulting from a tortious interference with a possessory interest in real property. Hawkins v. Scituate Oil Co., Inc., 723 A.2d 771 (R.I. 1999); Vogel v. McAuliffe, 18 R.I. 791, 31 A. 1 (1895).
In Hawkins this Court allowed recovery for inconvenience, discomfort, and annoyance when an oil company negligently pumped home heating oil down the wrong pipe, thereby depriving the plaintiffs of the use and enjoyment of their home. "Such a damages award may properly include compensation to the occupants for annoyance, mental suffering, and anxiety proximately caused by any interference with or diminution of their enjoyment of the property." Hawkins, 723 A.2d at 772.
In her complaint, Ms. Hey likewise seeks consequential and compensatory damages resulting from a tortious interference with her possessory interest in property, albeit property that has traditionally been classified as personal property.
Finally, we note that the motion justice granted plaintiff's oral motion for entry of judgment under Rule 54(b) of the Superior Court Rules of Civil Procedure. Although an order was entered on August 1, 2002, granting defendant's motion for partial summary judgment, a final judgment was never entered. Consequently, this case is not properly before us. Upon entry of final judgment, however, we shall treat the appeal as if it had been filed after the entry of said judgment.Dovenmuehle Mortgage, Inc. v. Antonelli, 790 A.2d 1113, 1114 n. 1 (R.I. 2002) (per curiam).
We hereby remand the papers in the case to the Superior Court, therefore, with directions to enter a judgment pursuant to Rule 54(b). The papers in this case shall then be returned to this Court forthwith. Thereupon, the parties shall comply with the Mediation Conference Procedures set forth in Article I, Provisional Rule A, of the Supreme Court Rules of Appellate Procedure. In the event that this case is not settled, it will be assigned to the regular calendar for full briefing and argument.
Entered as an order of this Court on this day of November, 2003.