In late 2004, I wrote about the Bluestone case, in which a jury in Orange County, California, awarded a dog owner damages for his distress and loss of companionship in his suit against the veterinarians whose negligence was found to have caused the dog's death:
Although a minority of states -- Hawaii and Florida among them -- have permitted an animal owner to recover damages for the owner's distress when the animal is injured through negligence, the majority of states that have considered the question have come down on the side of the established common law rule: despite the well-known emotional bonds that can and do exist between humans and their non-human companions, the distress that the human may suffer when his or her pet is injured through negligence is not a loss for which any monetary compensation will be awarded. No published California appellate case has addressed the question, though there are several cases indicating that merely negligent loss or destruction of other types of personal property -- irreplaceable family heirlooms, for example -- will not support an award of damages for emotional distress. The Bluestone case will likely present that question squarely as it relates to animals.The Bluestone defendants did take the issue up on appeal, as I reported in March, 2005. No appellate decision was ever issued, however. The parties reached a settlement, and the appeal was voluntarily dismissed, leaving California without a definitive statement of the damages a pet owner can or cannot claim for the loss of an animal companion. Until now.
Late yesterday [Friday, July 31,2009], the California Court of Appeal issued its decision in the case of McMahon v. Craig, holding unequivocally that California law does not permit an animal owner to recover damages for his or her emotional distress at the injury or death of an animal caused by negligence, and that there can be no recovery of damages for loss of the companionship of a non-human companion.
McMahon v. Craig arises from the death of "Tootsie," a Maltese, following surgery to correct a breathing disorder. Tootsie's owner brought suit maintaining that the veterinarians' negligence in post-surgical care caused the dog to develop aspiration pneumonia, resulting in Tootsie's sudden death. The owner further alleged that the doctors had misrepresented the causes of Tootsie's death in order to cover up their negligence. The lawsuit sought damages for the owner's emotional distress resulting from the veterinarians' negligence, damages for emotional distress caused by the intentional or "outrageous" conduct of the veterinarians in misstating the cause of death, and damages for the loss of Tootsie's companionship. Prior to trial, the lower court struck out all of the emotional distress and companionship damages. Because the case had little or no practical value in the absence of those claims -- the recoverable damages if negligence was proven would be limited to Tootsie's relatively limited market value at the time of her death -- the owner stipulated to entry of a judgment in favor of the defendants on all theories, then sought review of the emotional distress/companionship claims in the Court of Appeal.1
The Court of Appeal rejected each of the plaintiff's claims in turn:
An animal owner does not fall into either of the categories in which California law permits recovery for emotional distress caused by negligence. The owner is not a "bystander" directly witnessing the injury or death of a close [human] family member, nor can a pet owner be considered a "direct victim" of the claimed negligence. The court noted that doctors treating children are not liable for the emotional distress of a parent whose child is injured by a doctor's negligence, adding:
Regardless of how foreseeable a pet owner's emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.
On the question of loss of companionship, the court was also influenced by California's existing limitations on such recoveries in cases involving humans. While California permits damages for lost companionship (or "loss of consortium") in a marital relationship, no such recovery is available in cases involving parents and children.
We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet.
The court also declined to expand the common law doctrine of "peculiar value" to include the companion-value of a pet. "Peculiar value . . . refers to a property's unique economic value, not its sentimental or emotional value."
McMahon v. Craig is not so much a statement of a new rule of law in California as it is the first explicit statement of the manner in which existing rules apply to cases involving animals. It provides a much needed clarification of the law, and aligns California with the majority of other jurisdictions that have considered these questions.2
Disclosure: George M. Wallace of Wallace, Brown & Schwartz, Pasadena, CA, the author of this weblog, was counsel for the successful defendants in McMahon v. Craig.
1 Because of the procedural posture of the case, the Court of Appeal was obliged to accept all of the plaintiff's allegations as true. The defendants denied that there had been any negligence, misrepresentation, or other wrongdoing on their part and, in this writer's opinion, would have been able to prevail on the merits if the case had proceeded to trial.
2 At this writing, the decision is not yet final, and is subject to modification either on reconsideration by the Court of Appeal or if review is sought and obtained in the California Supreme Court.
Photo: "Faithful Dog," Highgate Cemetery, London, by Flickr user Aphexlee, used under Creative Commons license.