A judge has refused to dismiss a suit brought by two attorneys asserting that their beloved dachshund-mix suffered kidney damage and ultimately died after being given medication meant for another dog when she was being boarded at an Atlanta kennel.
The suit, filed last year by Peters & Monyak partner Robert Monyak and his wife, Elizabeth Monyak, a lawyer with the Georgia attorney general’s office, seeks almost $68,000 in veterinary and related expenses for the loss of their dog, Lola, after she was boarded at a Barking Hound Village facility last year.
“We had had Lola for over six years, and she was a very special dog,” said Robert Monyak, who often defends doctors in medical malpractice cases. “She was very intelligent, very perceptive, and really like a member of the family.”
The family had used Barking Hound several times over the years with no prior problems, he said.
The damages mainly represent the cost of dialysis treatments in Florida recommended by Lola’s veterinarian, Robert Monyak said, along with travel expenses.
The kennel’s attorneys, Joel McKie and Mary Battey of Hall Booth Smith, had sought to have the suit dismissed on summary judgment. They argued that Lola—a 10-year-old rescue dog—had no “market value,” and that the Monyaks “do not have an appraisal of the deceased dog and have failed to identify any expert witness who may offer opinion testimony as to the value of the dog.”
Citing century-old Georgia cases involving dogs and horses, the defense argued that, even if the Monyaks are due any damages for their loss, the sums they’re seeking “so clearly exceed any market value the dog may have had” that they are “not the appropriate measure of damages.”
But Fulton County State Court Judge Eric Richardson refused to dismiss the suit.
“Defendants are correct in their statement of the general rule in Georgia that a dog is personal property” and that “generally, in a suit for damages to personal property, ‘the measure of damages is the market value of the property before and after the damage to such property,’” wrote Richardson in a Feb. 10 order.
“However, Georgia courts have also recognized an alternative measure of damages for certain items of ‘special value property,’ which have little or no market value but which have substantial personal value to the owner.”
Richardson cited a 1943 Georgia Court of Appeals case, Cherry v. McCutcheon, 65 Ga. App. 301, involving the loss of a painting that had been painted by the plaintiff’s deceased mother. In that case, the court held that the worth of a precious item may be more appropriately judged by its “actual value to owner” rather than its market value.
Richardson also issued a certificate of immediate review; McKie and Battey did not respond to queries about the case or whether they plan to appeal.
According to court filings, the Monyaks left Lola and another dog, a 13-year-old Labrador retriever mix named Callie, at Barking Hound’s “Inn” location near Buckhead while they went on vacation. Callie was being treated with Rimadyl, a medication used to relive arthritis pain in dogs, and the complaint asserted that kennel employees mistakenly gave the drug to Lola, who was not taking the drug and was “a much smaller dog than Callie.”
Rimadyl, it said, “is potentially toxic at certain doses and can cause, among other things, kidney disease and renal failure.”
The Monyaks picked up their dogs on June 7, 2012, and noticed that Lola appeared ill.
“She was obviously not herself,” said Robert Monyak. The next day, Elizabeth Monyak took Lola to their veterinarian.
“He diagnosed her as having been poisoned by doses of Rimadyl, which she had never been prescribed,” he said.
Lola sustained permanent kidney failure, and an amended complaint accused The Inn employees of mistakenly giving her the Rimadyl, then attempting to cover up their mistake by discarding medication administration records and tampering with boarding cards for Lola and Callie.
In July 2012, the Monyaks demanded compensatory damages of $18,139, the original complaint said.
“That represented the medical bills to date,” Robert Monyak said. “We thought, if they’d just pay that back, we’d call it square. But they took no responsibility whatsoever.”
According to a defense brief, the Monyaks decided to seek dialysis treatments for Lola with a veterinary renal specialist at the University of Florida, where she received twice-weekly dialysis for a month. She was hospitalized at least two more times in Georgia and Florida and died in March 2013.
In September 2012, Peters & Monyak partner Jonathan Peters filed suit on behalf of the Monyaks in Fulton State Court. It accused Barking Hound and The Inn manager William Furman of negligence, gross negligence, breach of private duty, breach of contract and fraud, seeking actual and punitive damages. By mid-2013, Robert Monyak began filing all the plaintiffs’ documents.
Defense filings detail the assorted measures The Inn takes to record and monitor medications for the dogs in its care, and note that Furman conducted his own investigation into the incident, including interviews with each employee during which they were asked to identify Callie and Lola by name to ensure they could tell the dogs apart.
In their brief supporting the defense motion for summary judgment, McKie and Battey wrote that, while no direct evidence supported the Monyaks’ claim that Barking Hound administered the Rimadyl, “there is also a complete lack of evidence that their dog had any market value. Without proof of market value, Plaintiff’s [sic] claim is barred as a matter of law.”
The Monyaks “did not buy the dog at issue, but rather rescued the dog from a shelter where the property had been abandoned,” the defense lawyers wrote.
They cited the Georgia Supreme Court’s 1907 opinion in Columbus v. Woolfolk, 128 Ga. 631, that a dog is property whose value “is to be proven in the same way as the value of any other property.” Another case, the 1910 Georgia Court of Appeals decision in Southern Ry. Co. v. Stearns, 8 Ga. App. 111, held that a man seeking damages for an injured horse was entitled only to “the difference in the value of the horse before and after the injuries, lost hire while not able to work from the injuries, and the expense of looking after and treating the horse during his disability.”
In declining to dismiss the case, Richardson wrote that applying the market value rule to cases such as the Monyaks’ “would, as a practical matter, leave pet owners without any practical tort remedy in the event of proven wrongdoing to a family pet. In this case, applying a strict ‘market value’ rule would not even allow Plaintiffs to recover the fees charged by Defendants to board Lola, let alone the reasonable veterinary and other expenses incurred in Plaintiffs’ effort to save their dog from the Defendants’ alleged tortious conduct.”
Richardson did, however, offer the defense a measure of relief, granting an alternative motion for partial summary judgment relating to the fraud claim.
“First, plaintiffs have already asserted a claim for negligence arising out of the same operative facts, and already seek punitive damages based on Defendants’ alleged failure to disclose the medication error and destruction of evidence,” wrote Richardson.
“Second,” said the order, “spoliation of evidence does not give rise to an independent cause of action.”
Robert Monyak said he anticipated the kennel will appeal Richardson’s order, “but I seriously doubt this is something the Court of Appeals would consider on interlocutory appeal. This is settled law since the 1940s; its application for dogs is universal around the country. “
McKie, representing the kennel, issued an emailed statement Tuesday saying in part: “My clients care deeply about the dogs entrusted to their care. There are procedural safeguards in place to ensure that our customers’ pets are safe and happy during their boarding stay or day care visit. We are certainly sympathetic to the Plaintiffs for the loss of their beloved dog, Lola. However, Defendants did nothing to cause or contribute to the dog’s renal failure.”
The case is Monyak v. Barking Hound Village LLC, No 12V015855.