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June 02, 2011


Colin Samuels

This certainly isn't my area of expertise and, blank slate that I am, your post raises a couple of questions for me.

First, you write, "If Pumkin, for example, had been a prized show cat that could be shown to be worth, say, $2,500, there is little doubt that $2,500 would be the upper limit on damages and that the case would properly belong in Small Claims Court if it belongs anywhere." Is this true even where, as in this case, the show animal's owners can evidence that the animal was also treated as a family pet? In other words, is the assumption that if an animal has discernible market value as a rare, show, breeding, or other valuable animal, it cannot be also a pet?

Second, you write, "In practical terms, despite its protestations to the contrary, the Court has authorized a recovery for expenses incurred precisely because of the non-compensable sentimental or emotional bond between plaintiff and Pumkin." While this may be so, it may be that this is not the open cat door it might seem. The court sets the limit at the amounts actually spent. Thus, there would be two checks on recovery: 1) a plaintiff must actually incur out-of-pocket expenses; and 2) those expenses must be reasonable. A plaintiff could not make a purely emotional claim; s/he must have been sincere enough to have put some skin in the game to back-up his/her subsequent claims. Moreover, a plaintiff who goes off the deep end (as I think this one did) and spends a ridiculous amount in caring for an animal or spends an otherwise-reasonable amount on ridiculous procedures would see only a limited recovery.

As I say, I'm not even conversant with the issues you've raised; my curiousity was piqued by what you wrote and while that may kill a cat, I know now that $36,000 worth of veterinary work can avert this.

George M. Wallace

I appreciate the comment, Colin, and your questions are good ones.

For the first: the court has allowed potential recovery of the care expenses precisely because it finds no other way to place "value" on the cat. Market value still seems to be the default measure of damages in these cases, if such a market value exists. I do not read this case as authorizing recovery of both market value and something additional for "value as a pet". The court itself, of course, might read things differently.

You make a good point, as well, concerning the necessity of "skin in the game" and the potential limitation of "reasonableness." Personal injury cases involving human victims wrestle with "reasonable and necessary" medical expenses all the time, but I do not think this court has it in mind to apply the same measure to animals as it does to humans. Assuming that is the case, how is "reasonableness" to be determined? Is it purely a matter for the discretion of the jury? Will there need to be expert testimony from qualified veterinarians on both sides?

At a minimum, the heightened potential recovery means that cases will be filed and litigated that otherwise would not be, or that cases will be filed in Superior Court rather than Small Claims, with resulting increase in expense for both plaintiffs and defendants. Given that my own practice regularly includes defense of veterinarians, this decision will change the legal landscape in the trial courts, at least until (unless) some other division of the Court of Appeal chooses to go in a different direction on the issue.

Lis Carey

You seem to be arguing that a cat or dog, living beings capable of feeling both fear and pain, and who are individuals with individual personalities and characteristics, are no different legally, and should be no differently legally, than a chair or a table.

No, wait, those have some economic value, however slight. So living beings are apparently, less than easily replaced inanimate objects.

It's also worth noting that your veterinarian clients make most of their income from the fact that we don't regard pets as no different than inanimate property, to be replaced with a newer model whenever costs of "repair" exceed the cost of "replacement." Yet when something goes wrong, suddenly all that "your pet is a family member and deserves the same care" goes out the window.

In the long run, veterinarians are not going to be able to go on having it both ways.

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