Pet Owners Can't Recover Damages for Emotional Distress From Witnessing Pet's Death, NJ Supreme Court Holds

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In an opinion issued on July 31, 2012, the New Jersey Supreme Court declared that a pet owner is not entitled to recover damages for emotional distress caused by witnessing the traumatic death of her dog.  Joyce McDougall v. Charlot Lamm (A-99-10) (067436).

The facts are relatively straightforward.  On June 7, 2007, plaintiff Joyce McDougall was walking her dog when a large dog belonging to defendant Charlot Lamm ran out, grabbed McDougall's dog by the neck, and picked it up and shook it several times before dropping it, causing the death of her dog.  McDougall bought the dog as a puppy for $200 in 1997, and believed a new puppy would cost $1,395. At the trial level McDougall described her pet as a “friendly, lively, energetic dog” that loved children and was capable of performing numerous tricks.  McDougall testified that the dog was very happy to see her when she came home, slept in a bed near hers, and was with her much of the time. 

McDougall alleged negligence on the part of Lamm in maintaining her dog and demanded compensatory damages as well as damages for emotional distress caused by witnessing her dog's violent death.   The trial court dismissed McDougall's emotional distress claim, observing that the law categorizes dogs as a form of personal property and there is no cause of action in New Jersey that permits an emotional distress claim based on property loss.  Lamm stipulated to liability and the parties waived their right to a jury trial. After hearing evidence on damages, the trial court awarded $5,000 to compensate McDougall for the replacement cost of the dog and the loss of a well-trained pet.  McDougall then appealed the dismissal of her emotional distress claim. The Appellate Division affirmed, and McDougall sought a further appeal with the New Jersey Supreme Court.

In a unanimous decision, the NJ Supreme Court held that there is no basis in law or public policy to expand the traditionally and intentionally narrow grounds established in one of the Court's prior decisions [Portee v. Jaffee, 84 N.J. 88 (1980)] permitting compensation for the traumatic loss of carefully defined classes of individuals.  Although humans may share an emotional and enduring bond with pets, permitting that bond to support a recovery for emotional distress would require the Court to vastly expand the classes of human relationships that would qualify for Portee damages or to elevate relationships with animals above those shared with other human beings.

In declining to disturb the lower courts' ruling, the NJ Supreme Court was unwilling to create a new common law cause of action for emotional distress in favor of pet owners.   Recognizing that New Jersey law has traditionally treated animals as personal property, Justice Helen Hoens, writing for a unanimous NJ Supreme Court, noted that pet owners historically have been limited to recovering their pet's market value. For example, in Hyland v. Borras, 316 N.J. Super. 22 (App. Div. 1998), the Appellate Division recognized that pets are a special form of personal property.  The court there reasoned that a household pet is not like “disposable property, intended solely to be used and replaced,” and thus a defendant could be required to reimburse veterinary expenses. In Houseman v. Dare, 405 N.J. Super. 538 (App. Div. 2009), the court held that pets have a “special subjective value” to their owners; analogized pets to family treasures “that induce a strong sentimental attachment”; and held that agreements of cohabitants about disposition of a companion animal may be specifically enforced when that remedy is appropriate. Thus, courts have recognized that pets are not fungible and have permitted pet owners to be awarded costs in excess of market value that represent pecuniary losses associated with medical treatment, damages based on intrinsic value, or specific performance of an agreement. (pp. 26-29).

Noting that its decision in Portee prohibited McDougall from recovering emotional distress damages had she had the misfortune of witnessing the death of a neighbor's child, the Court concluded that public policy does not permit McDougall to recover for loss of a non-human.   The Court also remarked that allowing such a recovery would be inconsistent with other New Jersey statutes, including the Wrongful Death Act.   N.J.S.A. 2A:31-1 to -6