Companion Animal Valuation in Civil Litigation

Transcription

1 Companion Animal Valuation in Civil Litigation Seminar Topic: This program examines damages for death or injury to companion animals in civil litigation, including discussion of market vs. actual value to owner standards. The program also discusses damages for negligent vs intentional acts, typical cases, and settlement agreements (including usual settlement provisions). This material is intended to be a guide in general and is not legal advice. If you have any specific question regarding the state of the law in any particular jurisdiction, we recommend that you seek legal guidance relating to your particular fact situation. The course materials will provide the attendee with the knowledge and tools necessary to identify the current legal trends with respect to these issues. The course materials are designed to provide the attendee with current law, impending issues and future trends that can be applied in practical situations. Page 1

2 Copyright 2018 Printed in the United States of America. All rights reserved. No part of this monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher. Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation. The Apex Jurist, is Published by ApexCLE, Inc South Emerson St., Suite 248 Mount Prospect, Illinois Ordering Information: Copies of this monograph may be ordered direct from the publisher for $64.95 plus $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher. Library of Congress Cataloging-in-Publication Data ApexCLE, Inc. 1. ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education. Page 2

3 About the Author and Presenter Anna Morrison-Ricordati Anna Morrison-Ricordati practices civil litigation, business law, and animal law in Chicago, Illinois. Handling all aspects of dispute resolution, Anna has represented individual and business clients in mediations, arbitrations, jury and bench trials, equitable remedies, and appeals. She is a past Chair of the Illinois State Bar Association s Animal Law Section Council ( ), Chair of the Chicago Bar Association s Animal Law Committee ( ), Chair of the DuPage County Bar Association s Animal Law Section ( ), past President of the North Suburban Bar Association ( ), and has served as a CLE speaker on emerging legal topics for many organizations, including The Chicago Bar Association, Illinois State Bar Association and Louisiana State Bar Association. Anna has also guest lectured at The John Marshall Law School in animal law and civil practice courses. Anna received her J.D., cum laude in 2003 from The John Marshall Law School, Chicago, IL. She received a M.S., Interdepartmental Biological Sciences in 2001 from Northwestern University, Evanston, IL. She received a B.S., cum laude, Microbiology in 1998 from University of Illinois, Urbana-Champaign, IL. She was admitted in Illinois in 2003 and the District of Columbia in Author s Address: anna@amrlawgroup.com Author s Website: Author s Mailing Address: 111 W Washington St, Suite 1760 Chicago, IL Author s Phone Number: Page 3

4 Table of Contents Contents Table of Contents... 4 Timed Agenda:... 5 Companion Animal Valuation in Civil Litigation... 6 Introduction & Background Animal Law... 6 Companion Animal Issues In Court... 6 State Laws & Court Treatment Differs... 6 Valuation & Damages... 7 ACTUAL VALUE... 7 LOSS OF VALUE... 7 Anzalone v. Kragness... 7 Leith v. Frost... 8 Strickland v. Medlan... 8 Valuation & Damages... 8 How do I establish damages? Veterinary Malpractice Professional Malpractice Other Claims Other Wrongful Injury or Death Valuation & Damages Other Wrongful Injury & Death Page 4

5 Timed Agenda: Time Description 00:00:00 Program Start 00:00:20 Introduction and Background 00:03:23 Valuation & Damages 00:06:11 Market Valuation 00:08:39 Anzalone v. Kragness 00:11:28 Leith v. Frost 00:14:51 Strickland v. Medlan 00:19:44 Zauper v. Lababit 00:20:41 Bluestone v. Bergstrom 00:21:00 Evers v. Palmer 00:21:23 Multiple Jurisdictions 00:29:10 How do I establish damages? 00:31:30 Emotional Damages (NIED V. IIED) 00:42:52 Veterinary Malpractice 00:48:23 Professional Malpractice 00:51:50 Other Claims 00:56:46 Other Wrongful Injury or Death 00:58:27 Mengarelli Case 01:10:12 Pet Shops 01:13:18 Dafnis Case 01:18:03 Additional Wrongful Injury & Death 01:24:35 Increasing Damages 01:27:38 Conclusion 01:30:24 Program End Page 5

6 Companion Animal Valuation in Civil Litigation ANIMAL LAW VALUATION What damages are available when my client s animal is injured or killed? Introduction & Background Animal Law The field of animal law encompasses not only companion animals, commonly referred to as pets, but also those animals living in the wild and animals used for entertainment, food and in research. Animal attorneys often seek to protect animals from abuse under existing statutory and case laws and seek to extend animal protection through common law (bringing legal cases) & legislative change. Although a non-traditional legal field, animal law involves traditional subject matter, such as tort, contract, criminal and constitutional law. Animal law is currently taught in 160 law schools (US and Canada), including Harvard, Stanford, UCLA, and the University of Chicago. Recognizing the growth in this field, most state and local bar associations now have animal law section councils or committees. Companion Animal Issues In Court Animal Custody Disputes (Divorce & *Replevin) Bites (Prosecuting & Defending) Consumer Fraud (Sales of Sick Animals) Enforceable Trusts for Animal Beneficiaries (Pet Trusts) Housing Disputes (No Pet Policies FHA/ADA) Veterinary Malpractice (Reasonable Standard of Care) Wrongful Death & Injury (Negligent & Intentional) State Laws & Court Treatment Differs Page 6

7 Valuation & Damages Most companion animals have no market value. Animals mean more to their caretakers/owners than to the person responsible for the injury. - What is the proper measure of damages? - How can I prove value? Some states do provide non-economic recovery for companion animals: Alaska Florida Hawaii Idaho Illinois Kentucky New York New Jersey District of Columbia Other states have rejected non-economic recovery (e.g., Texas) ACTUAL VALUE Anzalone v. Kragness (IL death) actual value to owner Leith v. Frost (IL injury) Cost to bring back to health LOSS OF VALUE Strickland v. Medlan (TX) Loss of value, not loss of relationship Anzalone v. Kragness 356 Ill. App. 3d 365 (1st Dist. 2005) Plaintiff boarded her cat at a veterinary hospital. Employee of vet hospital took cat to exercise room but failed to securely close the room door. Page 7

8 Employee also took a Rottweiler dog being boarded at the vet hospital to a nearby room. Dog ran into cat s room and killed cat. Counts for bailment, negligence, breach of fiduciary duty (IIED was dismissed) against veterinary hospital. Leith v. Frost 387 Ill. App. 3d 430 (4 th Dist. 2008) Case involved neighbors having 6 ft. fences & dogs Daschund owners (DO) sued Husky owners (HO) when Husky dog intruded yard of the neighbor, attacked and badly injured the Daschund. HO knew his dogs made several prior attempts to dig under the fence, but claimed to have taken steps to prevent. Prior escapes by Husky (named Cosmo) occurred by breaking a plank and squeezing out. HO admitted to working a lot and not home much to see what dogs were doing. HO found negligent for failing to secure his dog Cosmo within the confines of his backyard, resulting in injury to plaintiff s dog. Strickland v. Medlan 397 S.W.3d 184 (Tex. 2013) The Medlans dog (Avery) escaped the family s yard. Animal Control picked up Avery and ACO Strickland put Avery on euthanasia list by mistake. The Medlans sued Strickland for Avery s intrinsic value. TX Supreme Court without legislative change would allow only loss of value v. loss of relationship. Valuation & Damages CA: Zauper v. Lababit 9 th Cir., BAP No. WW /1030 (Doc ; Oct. 8, 2009) state court awarded $75K in default but bankruptcy judge deemed only $1 non-dischargeable (despite agreement that acts resulting in death of the plaintiffcreditor s cat were willful and malicious) and allowing $0 for Page 8

9 emotional damages. This decision was reversed on appeal and the $1 finding deemed clear error. Bluestone v. Bergstrom Orange Cy. Sup. Ct. No. 00CC00796 (2004) jury awarded $30K for special value of a dog killed through veterinary malpractice (market value estimated at $0) Evers v. Palmer Orange Cy. Sup. Ct. No (2000) bench awarded 20K for veterinary malpractice resulting in injury to dog FL Knowles Animal Hospital v. Wills, 360 So. 2d 37 (Fla. App. 1978) jury awarded $13K where dog required euthanasia following injury at Florida animal hospital Kennedy v. Byas, 867 So. 2d 1195 (Fla. App. 2004) appellate court reversal of recovery for emotional distress where no physical injury resulted from same KY Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001) jury awarded 50K compensatory damages for outrageous conduct selling for slaughter horses owned by another OR Ingwerson v. Whitman, Curry Cy. Cir. Ct. No. 01CV0230 (2002) jury awarded $135K where neighbor poisoned four dogs PA Snead v. Society for Prevention of Cruelty to Animals of Pennsylvania, 929 A.2d 1169 (2007) jury awarded $157,926.37, most of which was exemplary damages WA Roemer v. Gray, No (D. Wash., May 2, 2005 bench awarded $45, for death of cat (default judgment) Sherman v. Kissinger, King Cy. Sup. Ct. No SEA (2009) arbitration award of $22,300 for emotional distress and intrinsic value of dog killed in veterinary procedure Giurbino v. Raschchuk, King Cy. Sup. Ct. No KNT (2008) arbitration from civil suit awarded $15K intrinsic value and 15K emotional distress for wrongful and fatal shooting of Chihuahua Degidio v. Moore, Pierce Cy. Sup. Ct., No (2009) arbitration award of $10K intrinsic value for young German Page 9

10 Shorthair Pointer, plus $2,675 (cost of purchase); and $4,000 (cost of training) where dog was fatally shot Womack v. von Rardon, 135 P. 3d 542 (Ct. App. Wash. 2006) bench awarded $5K for cat abducted by neighbor and set on fire Lind v. Airport West Animal Hospital, Yakima cy. Sup. Ct. No (2007) arbitration award of $5K for intrinsic value of 7 mo. old Italian Greyhound who died following escape from veterinary hospital How do I establish damages? (Costs) - Veterinary bills Accommodations during recovery Additional (unexpected) expenses (Value) - Testimony o Human enrichment Investments in Care o Veterinary o Enrichment items o Grooming, etc. Irreplaceable EMOTIONAL DAMAGES (NIED V. IIED) NEGLIGENT INFLICTION Gross recklessness or willful & wanton conduct Bystander May be limited Veterinary Malpractice We re Your Other Family Doctor Professional Malpractice Did the veterinarian s actions fall below the reasonable standards of care? May require review by qualified veterinarian in similar field. o Cost of Expert Review Page 10

11 EXCEPTION common knowledge o Amputate wrong leg o Failed to administer O2 o Clearly wrong dosage of meds Regulatory Reporting o State Licensing o Disciplinary Hearing(s) o CANNOT Use to Bargain in Civil Case! Other Claims Conversion unauthorized surgeries, etc. Fraud misrepresentation/ concealment common law o Unlicensed o Hid Mistakes from Client Breach of Contract o Liability Waivers Public Policy Absolve Own Negligence Ordinary Negligence Spoliation Claims Other Wrongful Injury or Death Similar exposure to liability exists with other animal professionals o Boarding o Grooming o Training o Dangerous Product o Airline Mistake Negligence Based Liability Insurance Additional damages can occur when incident is handled poorly or attempts made to cover up the loss Waivers & Disclosures Consumer Fraud Valuation & Damages Page 11

12 NIED Mengarelli Case 11 L 147 (Lake County, IL) Entered Veterinary Hospital w/ 2 Small Dogs for Santa Paws Event Large Dog Killed Small Dog (Dolce) and Knocked Mrs. Mengarelli to Ground Trial Court Allowed Claims for Self & Spouse, but not for Dog Dafnis 14 L 4161 (Cook County, IL) Allegations- Veterinary Malpractice, Fraud (Misrepresentation, Inducement, Concealment), Humane Care for Animals Act o Alternative Count for Negligence (510 ILCS 70/16.3) Sec Civil actions. Any person who has a right of ownership in an animal that is subjected to an act of aggravated cruelty under Section 3.02 or torture under Section 3.03 in violation of this Act or in an animal that is injured or killed as a result of actions taken by a person who acts in bad faith under subsection (b) of Section 3.06 or under Section 12 of this Act may bring a civil action to recover the damages sustained by that owner. Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner. In addition to damages that may be proven, the owner is also entitled to punitive or exemplary damages of not less than $500 but not more than $25,000 for each act of abuse or neglect to which the animal was subjected. In addition, the court must award reasonable attorney's fees and costs actually incurred by the owner in the prosecution of any action under this Section. The remedies provided in this Section are in addition to any other remedies allowed by law. In an action under this Section, the court may enter any injunctive orders reasonably necessary to protect animals from any further acts of abuse, neglect, or harassment by a defendant. The statute of limitations for a violation of this Act is 2 years. (Source: P.A , eff ) INTENTIONAL INFLICTION Civil & Criminal Context Elements Examples: shooting, choking, burning, etc. Rationale o Societal concerns o Animal Person violence o Punitive Example: 510 ILCS 70/16.3 IIED Page 12

13 Statutory Remedies / Criminal Conduct Fraud / Punitive Damages Extreme Recklessness Civil Rights Other Wrongful Injury & Death Police Officers WILL Encounter Dogs 77 million owned dogs in the United States 39% of residential locations are likely to have pets Constitutional protections 4 th Amendment violation unreasonable search and seizure claims arise when police shoot dogs Hell s Angel Case $1.8 million Russell Case - $330K Green Case - $75K Police Defenses Qualified Immunity Split Second decision Fear for Personal Safety Police Officer MUST have acted REASONABLY. Shooting a dog even one off the owner s property is unreasonable where the dog poses no threat! Page 13