Thursday, June 2, 2011
Homeowner May Be Liable for Shooting of Neighbor’s Cat—C.A.
Court Refuses to Limit Damages to ‘Fair Market Value’ of Former Stray
By SHERRI M. OKAMOTO, Staff Writer
The First District Court of Appeal has revived a Central California man’s lawsuit against a neighbor for damages arising from the alleged shooting of his pet.
Div. Three explained Tuesday that Kevin Kimes could recover the reasonable and necessary costs of care to his cat, Pumkin, attributable to the injury purportedly inflicted by Charles Grosser, as well as punitive damages, if a jury finds the injury was intentional.
Kimes claimed Pumkin was shot by a pellet gun in 2005 while perched on a fence between his property and that owned by Grosser. He contended the shot which wounded Pumkin was fired from Grosser’s yard, and that Grosser was responsible for the “willful and malicious” shooting.
Emergency surgery costing $6,000 saved Pumkin’s life, but left Pumkin partially paralyzed, and Kimes said he incurred an additional $30,000 in expenses caring for his pet because of the injury. He filed suit to recover the amounts he paid for Pumkin’s care, and punitive damages.
Motion in Limine
Grosser filed a motion in limine to exclude evidence of the costs of caring for Pumkin, who he described as “an adopted stray of very low economic value,” on the theory that liability was limited to the amount by which the shooting reduced Pumkin’s fair market value.
After Contra Costa Superior Court Judge Barbara Zuniga granted the motion at the onset of trial, Kimes declined to proceed, effectively conceding that Pumkin had no market value that justified the expenses of trial.
Presiding Justice James J. Marchiano noted that pets are considered property of their owners and CACI No. 3903J addresses the damages that can be recovered for injury to personal property.
This instruction states that, if the property “cannot be completely repaired, the damages are the difference between its value before the harm and its value after the repairs have been made, plus the reasonable cost of making the repairs,” but “must not exceed the [property’s] value before the harm occurred.”
Marchiano reasoned, however, “the rule in CACI No. 3903J has no application in this case to prevent proof of out-of-pocket expenses to save the life of a pet cat.”
He emphasized that Kimes “is not plucking a number out of the air for the sentimental value of damaged property” but rather, “seeks to present evidence of costs incurred for Pumpkin’s care and treatment by virtue of the shooting” to provide a rational measure of damages apart from the cat’s market value.
“Under Civil Code section 3333 plaintiff may present evidence of the bills incurred to save the cat’s life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat,” Marchiano said.
At trial, Kimes “is entitled to have a jury determine whether the amounts he expended for Pumkin’s care because of the shooting were reasonable,” and Grosser is entitled to counter with “evidence why the costs were unreasonable under the circumstances,” Marchiano concluded.
Justices Sandra L. Margulies and Robert L. Dondero joined Marchiano in his opinion.
The case is Kimes v. Grosser, 11 S.O.S. 2870.
Copyright 2011, Metropolitan News Company