Pet owners have remedies if their beloved pets are hurt

Originally published June 19th, 2011 , 12:04 pm

We really love our pets!  Sometimes they are not even considered “pets,” but we may refer them to our children or babies.   Do you think cave people could have envisioned the evolution of the relationship between man and animal?   The First Appellate District, Division One, obviously took that factor into consideration when it decided Kimes v. Grosser, 2011 Cal.App. LEXIS 671.  In that case, the defendant “allegedly” shot plaintiff’s pet cat, Pumkin, causing the plaintiff to incur substantial bills.  The trial court dismissed the case, concluding the plaintiff was unable to prove the value of the cat exceeded the costs of “repair.”  The appellate court was asked to determine what the plaintiff could recover when a pet animal has little market value.  The court held the owner can recover reasonable and necessary costs of care of the animal that are attributable to the injury and punitive damages, if the injury is intentional.

The costs of treating and caring for Pumkin were not cheap.  Emergency surgery cost $6,000, but plaintiff incurred an additional $30,000 in caring for Pumkin, who became partially paralyzed due to the injury.  To add insult to injury, the defendant filed a motion in limine to exclude those expenses, describing beloved Pumkin as “an adopted stray of very low economic value.”  (Tell that to the cat’s owner.)  Defendant claimed plaintiff’s recovery was limited to the amount by which the injury reduced Pumkin’s fair market value.  The court granted the motion, but plaintiff refused to proceed, essentially conceding Pumkin had no market value that justified going to trial.  Plaintiff appealed from the judgment of dismissal after the court concluded he failed to prosecute the case, pursuant to Code of Civil Procedure section 583.410.

The court held that pets are considered property of their owners.  (Tell that to my dog, who views me as his personal property!)  According to CACI No. 3903J, an owner can recover the lessor of (1) the diminution of the property’s market value due to the injury, or (2) the reasonable cost of repairing the property.  If the property cannot be completely repaired, the damages are the difference between its value before the harm and its value after repairs have been made, plus the reasonable cost of making the repairs.  The total amount cannot exceed the property’s value before the harm occurred.

Comparing the situation to the loss of affection and society of a parent or child, the court ruled that loss of the pet’s companionship was not compensable.   Had it been permitted as an item of recoverable damages, the case’s value would go up astronomically, maybe even more so than the loss of consortium claims made by spouses that we so often see.  It did confirm that plaintiffs are entitled to present evidence of the cost of repairs, even in those cases where recovery is limited to the lost market value.  The court also concluded CACI No. 3903J apply to prevent proof of out-of-pocket expenses to save the life of a pet cat.

The court recognized the difficulty of measuring damages where the property has no real market value, but has value to the plaintiff.  It deemed that proof of costs incurred represented a rational way to determine damages.  It also cited Evidence Code section 823, which allows any method of valuation “that is just and equitable” in cases where “there is no relevant, comparable market.”  As such, plaintiff could present evidence of bills incurred to save Pumkin’s life and “is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat.  Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.” (Opn., pg. 12.)  In addition, plaintiff could recover punitive damages if it could be proven the shooting was willful, pursuant to Civil Code section 3340.

For another appellate point of view on this case, check out Gary Watt’s posting athttp://www.caappellatelaw.com/2011/06/articles/the-36k-pellet/index.html.

I am sure that Mr. Watt did not really mean to recommend that you kill an annoying cat rather than just wounding it.  After all, that reasoning could be equally applicable to human beings who are forced to go through tremendous pain and suffering as well as future medical expenses.  I prefer to think that he really means that one should make friends with these little critters.  After all, paying $36,000 for Pumkin offers a strong incentive to overlook, compromise, rationalize, or any other behavior that makes an animal’s presence tolerable to the non-owner.