Over the past year, the courts have grappled with conceptually tricky and emotionally charged questions concerning the measure of property damages for harm to trees and pets. For such harms, plaintiffs are increasingly seeking new methods of calculating damages on the theory that trees and pets have unique values not reflected in traditional damages measures. Among the emerging issues is whether a plaintiff may recover damages for intangible harms to trees or pets, such as for harm to sentimental or aesthetic values. As the decisions over the past year reflect, the courts have shown an increasing willingness to depart from objective measures set down over decades in California statutes and decisions.
In Martinez v. Robledo, 210 Cal.App.4th 384, the court considered whether to apply traditional tort measures of damages for harm to pets. As the court of appeal noted, pets are considered property. The measure of damages for tortious injury to property “is the amount which will compensate for all the detriment proximately caused thereby.” Cal. Civ. Code §3300. The courts construing this rule generally allow a plaintiff to recover no more than the lesser of the cost of repair/replacement or the property’s loss in market value. But the court found strict application of this rule, which would dramatically limit tort damages, to be unpalatable, as most pets lack any market value and are, in some sense, irreplaceable.
