North Carolina Business Litigation Report

How Much Is That Doggie In The Window? (Not Much, Says The NC Court Of Appeals)

The North Carolina Court of Appeals ruled last week in Shera v. N.C. State University Veterinary Teaching Hospital that dog owners are not entitled to recover damages for the negligent death of their pet beyond the cost to replace the pet.  In other words, a sentimental attachment to a pet does not result in an increase to damages.

The dog in the case was a Jack Russell Terrier named Laci.  She had been owned and loved by the Sheras for 12 years, since she was a puppy.  They shepherded her through cancer treatment in 2003, and had gone to N.C. State University's veterinary hospital for further treatment for her in 2007.  Unfortunately, the vets inserted a feeding tube improperly. That caused Laci's death.

The Sheras, who had a close relationship with their dog, sued the hospital and its veterinarians for the "intrinsic value" of Laci and also for "emotional distress and loss of enjoyment of life."  They emphasized the "human-animal bond" between them and their dog.

The Industrial Commission (which had jurisdiction over the claim because of the involvement of NCSU) ruled that it could not allow intrinsic value damages for the loss of a pet.  It granted an award of $3,105.72, which covered reimbursement for the cost of the treatment that led to Laci's death plus $350 for the replacement cost of a new Jack Russell Terrier puppy.

There were amicus briefs filed for each side in the appeal to the Court of Appeals.  Lining up with the Defendant were the American Kennel Club and the Cat Fanciers' Association.  You might expect the AKC, a dog loving organization, to be supporting the Sheras in trying to recover damages based on their emotional valuation of their dog, but the AKC says that allowing large awards to pet owners based  on their emotional attachment would result in an increase to the price of pet services and products to cover the cost of the awards.  Many pet owners then could not afford the more expensive services and care and would forgo them argued the AKC, so pets "would suffer."  AKC Brf. at 14.  I don't know whether the Cat Fanciers have a different perspective on the value of a dead cat, but anyone who has a cat as a pet knows that it's only fair that veterinarians should have to pay more for the unintended death of a cat.  The established superiority of cats to dogs has even been observed by the highly reputable newspaper, The Onion.

The amicus filing for the Sheras was by the Animal Legal Defense Fund.  The ALDF says on its website that it fights "to protect the lives and advance the interests of animals through the legal system."

The best argument made by the Sheras in support of their position was probably the one based on North Carolina's Pattern Jury Instruction 810.66.  That jury instruction says that intrinsic value should be used as a measure of damage "where damages measured by market value would not adequately compensate the plaintiff and repair or replacement would be impossible."  One of the factors to be taken into consideration if the instruction applies is "the opinion  of the plaintiff as to . . . value."

The Court dwelt for a while on the Sheras' argument that Laci was irreplaceable and that market value therefore wouldn't be adequate damages.  It said, based on the Sheras' testimony, that Laci performed no unique task or function that could not be performed by another dog.  It agreed that the "emotional bond" was irreplaceable, but not the dog herself.  It said that its conclusion was supported by the consistency of "our case law denying recovery for sentimental value of negligently lost or destroyed personal property."  Op. at 15.

Another basis for enhanced damages offered by the Sheras was also rejected by the Court.  They said that their damages should include what they had paid for Laci's medical care throughout her lifetime, including her cancer treatment.  The Court rejected that argument, saying "North Carolina law has not yet recognized a lost investment valuation method in wrongful death cases, whether human child or pet animal." Op. at 16.

Don't mistake my position on cats vs. dogs as making light of the Shera's understandable distress over the unexpected death of Laci.  The Court of Appeals certainly did not do that.  Judge McCullough ended the unanimous opinion by saying "[w]e sincerely empathize with plaintiffs' loss of their beloved pet Laci."  Op. at 19.  He said that the Court of Appeals was "an error-correcting court, not a law-making court" (id.) and that an expansion of the law to allow pet owners to recover sentimental damages for the loss of a pet was within the province of the NC Supreme Court, or preferably the Legislature.

That would be an unprecedented step for the state supreme court or the General Assembly.  I do not think there is a single state in the country that allows recovery for emotional damages for losing a pet.

And speaking of lost pets, one of my two cats got outside about a month ago and hasn't come back. Her picture is below.  Snickers is part Maine Coon cat and she is a real beauty.  If you have seen her running free in Greensboro, I am offering a reward of $500 for her return.  That's her intrinsic value to me based on what I have paid approximately over time to fill her Xanax prescription (don't ask me why she takes Xanax, it has nothing to do with me.)  But who knows, even though the Shera court rejected the cost of past medical treatment as a measure of damages, that's only dog law and perhaps cats will blaze a new trail in our appellate courts.

 

 

 

 

 

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Comments (3) Read through and enter the discussion with the form at the end
petey - May 4, 2012 6:19 PM

The COA's decision was WRONG, TERRIBLY WRONG.........Laci had "intrinsic value" ..... she was NOT replaceable. She was a special "family member." She contributed to HUMAN medicine ....

Dan T. - June 1, 2012 7:40 AM

I am in a position to agree with the AKC when it said "that allowing large awards to pet owners based on their emotional attachment would result in an increase to the price of pet services and products to cover the cost of the award." My mind immediately turns to the present expense of human medicine partly influenced by all of the high dollar jury awards that have pushed medical malpractice premiums through the roof. I think the AKC showed an admirable long term view of the problem and believe that they are correct in their opinion.

April S. - June 6, 2012 1:17 PM

Your position is incorrect. The AKC is grossly in error. If a Vet wants the ( DR. ) in front of their name, then act like one. That means they should be held accountable for their negligent acts. In this state, the law is archaic and treat pets as "property." Ridiculous, they are not a "lamp" or "toaster." Our pets are "family members."
The Vets take the "high" dollars they charge owners. So, they must think that pets are worth it.
Gracie's Law might be a solution for awards. Maybe a limit on awards would be the answer. But improvement needs to be made now, rather than what exists on the books. Vets now have a "free ride" and that must and will end. Owners are fed up with the way too many negligent acts by Vets.
In Laci's case, the Vet School admitted they killed her. Her case has brought much attention to what Vets get away with. Laci's case was NOT all about "emotional awareness." How insulting to mention it that way.
It is obvious you do not have all the facts. Your position was too generalized. So the Vets still make lots of money, and Laci is dead forever because of their negligence.

Mack Sperling
Brooks Pierce, LLP
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