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Published by: arogers8239 on Aug 01, 2012
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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
owners interact in a manner akin to a relationship with other humans and that this relationship should be consideredin determining compensation. The majority of jurisdictions that have considered whether pet owners should bepermitted to recover for emotional distress arising from the death of the pet have not authorized the cause of action.Some have adhered to the historical legal principle that regards pets as a form of personal property. Courts have alsocited public policy considerations, including concerns that our “enormous capacity to form bonds” with animalswould make it impossible to define boundaries for the cause of action and that it would burden courts with a greatercaseload. A few states have permitted pet owners to recover for emotional distress resulting from the loss of pet.One state reasoned that a veterinarian’s negligence that resulted in a dog’s death was “of a character amounting to agreat indifference to the property of the plaintiffs.” Another extended its cause of action for negligent infliction of emotional distress to permit recovery arising from a loss to personal property generally, not just pets. (pp. 18-25)4. New Jersey law has traditionally treated animals as property. Pet owners were historically limited to market value.In Hyland v. Borras, 316 N.J. Super. 22 (App. Div. 1998), the Appellate Division recognized that pets are a specialform of personal property. The court reasoned that a household pet is not like “disposable property, intended solelyto be used and replaced,” and thus a defendant could be required to reimburse veterinary expenses. In Houseman v.Dare, 405 N.J. Super. 538 (App. Div. 2009), the court held that pets have a “special subjective value” to theirowners; analogized pets to family treasures “that induce a strong sentimental attachment”; and held that agreementsof cohabitants about disposition of a companion animal may be specifically enforced when that remedy isappropriate. Thus, courts have recognized that pets are not fungible and have permitted pet owners to be awardedcosts in excess of market value that represent pecuniary losses associated with medical treatment, damages based onintrinsic value, or specific performance of an agreement. (pp. 26-29)5. In determining whether to recognize a new common law cause of action, the Court considers public policy andfairness by weighing and balancing the relationship of the parties, the nature of the risk, the opportunity and abilityto exercise care, and the public interest. One important factor, foreseeability, requires consideration of whether theinjury is within the range of harm that emanates from a tortfeasor’s negligence. Requiring a significant relationshipbetween a plaintiff and victim helps to preserve the distinction between ordinary emotional injuries that would beexperienced by friends and those that Portee recognized as compensable, namely the stunning emotional injuriessuffered by one whose relationship with the victim “is deep, lasting, and genuinely intimate.” In considering thepublic policy implications of imposing a duty, a court should be “reluctant to impose a duty that society is unwillingto accept.” Courts and commentators have identified potential concerns of creating an emotional distress claim infavor of pet owners, such as opening the door to claims arising from the loss of other types of property, difficultiesdetermining who would be entitled to recover, and the impact on the practice of veterinary medicine. (pp. 29-32)6. The Court declines to expand the class of individuals authorized to bring a Portee claim to those who havewitnessed the traumatic death of a pet. First, the Court has strictly limited the kinds of relationships with otherhumans that can support a Portee claim precisely because of the intention to preserve the essential principle of foreseeability to serve the ends of fairness to all parties. Second, expanding the cause of action would beinconsistent with existing statutes such as the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, which limits recovery topecuniary damages regardless of the closeness of consanguinity, and statutes regulating dog owners and addressingdangerous dogs, such as N.J.S.A. 4:22-20 (defining abandonment of domestic animal as disorderly persons offense)and N.J.S.A. 4:19-16 (setting forth dog owner’s liability for injuries inflicted by dog’s bite). Third, although pets arenot merely property, that alone cannot support a new cause of action. Their value is recognized by permittingrecovery to exceed replacement value and include intrinsic value. Fourth, a clear line cannot be drawn to distinguishwhich pet owners would qualify for recovery and which would not. Describing some pets as companions isinsufficient because the descriptive definition of that role would equally apply to many human relationships. (pp. 32-36)The judgment of the Appellate Division is
SUPREME COURT OF NEW JERSEYA-99 September Term 2010067436JOYCE MC DOUGALL,Plaintiff-Appellant,v.CHARLOT LAMM,Defendant-Respondent.Argued January 4, 2012 – Decided July 31, 2012On certification to the Superior Court,Appellate Division.Lewis Stein argued the cause for appellant(Nusbaum, Stein, Goldstein, Bronstein &Kron, attorneys).Brian R. O'Toole argued the cause forrespondent (O'Toole & Couch, attorneys).JUSTICE HOENS delivered the opinion of the Court.In this appeal, we are asked to consider whether a petowner should be permitted to recover for emotional distresscaused by observing the traumatic death of that pet. Assertingthat pets have achieved an elevated status that makes themcompanions in the lives of human beings, plaintiff JoyceMcDougall asks this Court to hold that pets should no longer beconsidered to be mere personal property. With that fundamentalshift in the way that pets are seen in the eyes of the law as

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