SYLLABUS(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for theconvenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in theinterests of brevity, portions of any opinion may not have been summarized.)
Joyce McDougall v. Charlot Lamm (A-99-10) (067436)Argued January 4, 2012 -- Decided July 31, 2012
HOENS, J., writing for a unanimous Court.
In this appeal, the Court determines whether a pet owner should be permitted to recover for emotional distresscaused by observing the traumatic death of her pet.On June 7, 2007, plaintiff Joyce McDougall was walking her dog when a large dog belonging to defendantCharlot Lamm ran out, grabbed plaintiff’s dog by the neck, and picked it up and shook it several times beforedropping it, causing the death of plaintiff’s dog. Plaintiff bought the dog as a puppy for $200 in 1997, and believed anew puppy would cost $1,395. She described the dog as a “friendly, lively, energetic dog” that loved children andwas capable of performing many tricks that she and her family had taught it. Plaintiff testified that the dog was veryhappy to see her when she came home, slept in a bed near hers, and was with her much of the time. She alleged thatdefendant was negligent in maintaining her dog and demanded compensatory damages. Plaintiff also alleged that, asa result of witnessing the dog’s death, she suffered significant emotional distress for which she demanded damages.The trial court dismissed the emotional distress claim, observing that the law categorizes dogs as a form of personalproperty and there is no cause of action in New Jersey that permits an emotional distress claim based on propertyloss. Defendant stipulated to liability and the parties waived their right to a jury trial. After hearing evidence ondamages, the court awarded $5,000 to compensate plaintiff for the replacement cost of the dog and the loss of awell-trained pet. Plaintiff appealed the dismissal of her emotional distress claim. The Appellate Division affirmed.
There is no basis in law or public policy to expand the traditionally and intentionally narrow groundsestablished in Portee v. Jaffee, 84 N.J. 88 (1980), which permits compensation for the traumatic loss of carefullydefined classes of individuals, to include emotional distress claims arising from observing a pet’s death. Althoughhumans may share an emotional and enduring bond with pets, permitting that bond to support a recovery foremotional distress would require the Court to vastly expand the classes of human relationships that would qualify forPortee damages or to elevate relationships with animals above those shared with other human beings.
1. Historically, plaintiffs could only recover for emotional anguish if the plaintiff also suffered a physical injury.That was eventually replaced by a requirement that the plaintiff be within the “zone of risk” of substantial bodilyinjury. Evolution of a bystander’s emotional distress claim culminated in Portee, which sets forth the four elementsfor a bystander’s emotional distress claim in New Jersey: (1) death or serious physical injury of another caused bydefendant’s negligence; (2) a marital or intimate, familial relationship with the injured person; (3) observation of thedeath or injury; and (4) severe emotional distress. These elements were intentionally designed to create a narrowclass of claimants who could be readily identified and to identify those who were foreseeable plaintiffs. This appealonly requires consideration of whether a pet can fulfill the requirement that the relationship qualify as “a marital orintimate familial” one, which is what makes the emotional harm so serious and compelling. (pp. 11-14)2. After Portee, the Appellate Division determined that a plaintiff’s asserted relationship with her five-year-oldneighbor as the son she never had did not suffice for Portee purposes because she was “not bound to the child byintimate family ties.” Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244 (1984). In Dunphy v. Gregor, 136 N.J. 99(1994), the Court concluded that persons engaged to be married and living together may fall into the category of relationships that are enduring and genuinely intimate and thus meet Portee’s requirement that the harm beforeseeable. The analysis of the nature of the relationship to the decedent has been carefully limited. Not even allrelationships with humans are sufficiently close to support an award for emotional distress claims. Here, thequestion is whether plaintiff has identified sound reasons to extend the scope of the Portee claim to pets. (pp. 15-17)3. Plaintiff’s arguments rest on implicit assumptions that there is a class of “companion animals” with which their