New Jersey’s highest court has refused to recognize an emotional-distress cause of action for witnessing the grisly death of a pet, no matter how dear to the owner.
“Although we recognize that many people form close bonds with their pets, we conclude that those bonds do not rise to the level of close familial relationship or intimate, marital-type bond,” the Supreme Court ruled on Tuesday in McDougall v. Lamm, A-99-10.
The unanimous court refused to expand to pets the doctrine of Portee v. Jaffee, 84 N.J. 88 (1980), which allows a suit for emotional distress by one who witnesses the death of a family member.
Though the doctrine has been broadened to include intimate acquaintances, such as cohabiting friends, the court on Tuesday drew the line at interspecies relationships, lest there be created an “ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings.”
Justice Helen Hoens observed that “not even all humans are engaged in a relationship that is sufficiently close to support such an award.”
Plaintiff Joyce McDougall was walking her maltipoo Angel, a cross between a maltese and a poodle, when a large, mixed-breed dog attacked, grabbed it by the neck, shook it violently and dropped it dead to the ground. In her suit against the attacking dog’s owner, she said Angel had been her close companion for years and the loss was especially hard for her since she and her husband had separated and her children had gone off to college.
Morris County Superior Court Judge Robert Brennan awarded McDougall $5,000 for the loss of the dog but dismissed the emotional-distress count on summary judgment. The Appellate Division affirmed, saying, “While we can understand plaintiff’s considerable attachment to her dog, and the distress she suffered at witnessing such an event, we agree with the trial judge’s conclusion that plaintiff’s damages are limited to the replacement cost of the dog.”
Hoens, writing for the Supreme Court, acknowledged that New Jersey law has treated pets differently than mere chattels. In Hyland v. Borras, 316 N.J. Super. 22 (App. Div. 1988), an appeals court allowed an owner to recover not only the pet’s replacement costs but also veterinary expenses. And, in Houseman v. Dare, 405 N.J. Super. 538 (App. Div. 2009), an appeals court said agreements involving the disposition of pets are enforceable.
But Hoens noted that only a handful of states — Florida, Hawaii and Louisiana — have allowed owners to sue for emotional-distress damages when their pets are killed. The vast majority of states have not.
As for the Portee doctrine, Hoens observed that its expansion between family members has been quite limited. In Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244 (App. Div. 1984), for example, an appeals court said it did not apply where a woman saw her 5-year-old neighbor, with whom she was very close, mauled to death by a circus animal.
“It would make little sense, we think, to permit plaintiff to recover for her emotional distress over the loss of her dog when she would be precluded from any such recovery if she instead had the misfortune of watching a neighbor’s child, whom she regarded as her own, torn apart by a wild animal,” Hoens said. “In the end, we leave the Portee cause of action where we found it.”
Hoens added that allowing the claim could lead to people seeking to recover for emotional distress over the loss of family heirlooms, photographs or gifts.
McDougall’s attorney, Lewis Stein, says he had hoped for and expansion of Portee by this court, which has been in the forefront of recognizing that emotional injuries as just as compensable as physical injuries. “But there was a fear of overwhelming the court system and a lack of faith in the jury’s role in separating real from imagined injury,” says Stein, of Nusbaum, Stein, Goldstein, Bronstein & Kron in Succasunna.
Defendant Charlot Lamm’s attorney, Brian O’Toole, says the court “had a tough set of facts [but] made the right decision. To expand Portee to equate pets with having a close familial relationship, that would be too much of a stretch,” says O’Toole, of Whippany’s O’Toole & Couch.
Appellate Division Judge Dorothea Wefing, temporarily assigned to the court, did not participate in the ruling.