Metropolitan News-Enterprise


Tuesday, August 4, 2009


Page 1


C.A.—No Emotional Distress Damages for Pet’s Death


By STEVEN M. ELLIS, Staff Writer


Animal owners cannot recover damages for emotional distress or loss of companionship over a pet’s injury or death caused by negligence, the Fourth District Court of Appeal has ruled.

Div. Three held Friday that a San Francisco attorney whose dog died after surgery cannot recover such damages against an Orange County veterinarian who allegedly rendered negligent care and then lied to cover it up.

Gail McMahon—an owner, occasional breeder, fancier and handler of Maltese show dogs—sued Tustin veterinarian Diane Craig after McMahon’s 5-year-old purebred “Tootsie” died following an operation to correct respiratory problems.

McMahon claimed that Craig advised that aspiration pneumonia—caused by breathing foreign materials into the lungs—posed the biggest concern following surgery and that all food and water would be withheld for 24 hours after the operation.

Instead, McMahon alleged, Craig instructed a technician to give the animal water mixed with baby food within two hours of the surgery to test Tootsie’s ability to swallow, which Tootsie aspirated, and then left the dog unmonitored the following day, leading to its death.

McMahon also claimed that Craig lied about the cause of the dog’s death and ascribed it to Tootsie having inhaled “oral secretions,” altered records, and directed a veterinary hospital to charge McMahon’s credit card for all unpaid services without her knowledge or consent three days after the surgery.

On McMahon’s suit against Craig and others for veterinary malpractice, negligent failure to inform, intentional misrepresentation, negligent misrepresentation, constructive fraud, conversion and intentional infliction of emotional distress, Orange Superior Court Judge David T. McEachen sustained a demurrer to the latter cause of action.

He further granted the defendants’ motion to strike McMahon’s damage claims for loss of companionship and emotional distress.

Determining that the trial court’s rulings had severely impaired the value and viability of her case, McMahon stipulated to judgment against her and appealed.

However, Justice Richard M. Aronson wrote that none of the defendants’ alleged acts gave rise to emotional distress damages because McMahon was neither a witness nor a direct victim of the defendants’ negligent acts.

Rejecting McMahon’s argument based on a series of cases in which a duty arose by virtue of a doctor-patient relationship, he explained:

“[A]lthough a veterinarian is hired by the owner of a pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress…

“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.”

Aronson similarly wrote that McEachen did not err in sustaining a demurrer to the intentional infliction of emotional distress claim because none of the defendants’ alleged conduct was so extreme or outrageous to support the cause of action.

Noting that the alleged acts “might be viewed as fraudulent and despicable conduct supporting punitive damages if a tort otherwise existed,” he said that “[d]efendants’ attempts to hide their alleged malpractice were not likely to greatly increase the level of McMahon’s distress over losing her dog.”

The justice then wrote that McMahon could not recover damages for loss of companionship based on Tootsie’s “peculiar value” to her under Civil Code Sec. 3355 because the term “refers to an item’s characteristics that enhance its economic value to the owner, and does not include the owner’s emotional attachment to it.”

He explained:

“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 the 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.”

Justices Kathleen O’Leary and Richard D. Fybel joined Aronson in his opinion.

McMahon could not be reached for comment, but Pasadena attorney George M. Wallace—who represented Craig—predicted that the decision would likely lead to fewer lawsuits arising from the injury or death of pets and other domesticated animals because “the actual value of those claims is probably not worth taking it to court.”

Noting that the opinion was “the first time that the court has come out and talked about the rights of pet owners,” Wallace said it was “really just an application of well settled principles of California law” and “not a radical decision at all in my view.”

Attorney Philip S. Goldberg of Shook, Hardy & Bacon in Washington D.C., which represented the California Veterinary Medical Association and others as Amici Curiae, praised the decision, saying that “any misbelief that allowing these types of damages is pro-animal is completely wrong” and that a contrary decision would have caused the health care costs of pets to “skyrocket.”

The case is McMahon v. Craig, 09 S.O.S. 4694.


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