The Vermont Supreme Court has rendered a decision in Scheele v. Dustin. This is one in a growing string of cases pushing for recognition of special damages for pet owners where a pet is injured or dies. The Court affirms Vermont precedent by denying these damages, but acknowledges punitive or exemplary damages would have been available to the plaintiffs had they sought them. However, the Court observed that plaintiffs declined to do so: Rather than pursue such a claim in the present case, plaintiffs chose to waive their initial prayer for punitive or exemplary damages by omitting the claim from the stipulation and not appealing this presumed waiver.
The Court determined that the logic of Goodby v. Vetpharm , 974 A.2d 1269 (2008) is applicable here as well:
[p]laintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss.
Sarah Scheele and Denis Scheele
Supreme Court
No. 2009-213
On Appeal from
v.
Washington Superior Court
Lewis Dustin
December Term, 2009
Helen M. Toor, J.
David Putter, Montpelier, and Heidi Groff of Biggam, Fox & Skinner, Montpelier, for Plaintiffs-Appellants.
David J. Blythe of Blythe & Taylor PLLC, Northfield, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1.SKOGLUND, J. This case asks the Court to decide the proper measure of damages for the loss of a family dog. Plaintiffs Sarah and Denis Scheele appeal from a judgment denying them recovery for emotional damages for the intentional killing of their pet dog, Shadow. Though plaintiffs recovered $155 in economic damages for the destruction of their property, the issue is whether they are entitled to damages for emotional distress or loss of companionship as a result of Shadow’s death. They claim that the real worth of a pet is not merely financial and cannot be measured solely by the replacement value. Thus, they argue, their emotional suffering—the result of defendant’s malicious and intentional acts—warrants noneconomic damages. The Washington Superior Court barred such recovery, holding that Vermont does not recognize noneconomic damages for the malicious destruction of personal property, even when the property is a beloved pet. We affirm.
¶ 2.Plaintiffs’ brought suit against defendant under an “intentional tort” theory and a claim for “loss of companionship.” They demanded economic damages for adoption fees, veterinary bills, and cremation costs; noneconomic damages for mental distress, emotional pain, and destruction of a special relationship; litigation costs; and “further relief, as the Court may deem just and proper, including punitive damages.”
¶ 3.Following denial of defendant’s motion for summary judgment, the parties waived a jury trial and submitted the case on stipulated facts and damages to the court. What follows is taken directly from the parties’ stipulated facts. In July 2003, plaintiffs were visiting from their home in Maryland when they stopped in the parking lot of a church in Northfield, Vermont. While in the lot, their unleashed dog, Shadow, wandered onto an adjacent property. The owner of that property, defendant Lewis Dustin, was sitting on his porch with a pellet gun planning to shoot at squirrels. When Shadow came into his yard, defendant aimed his pellet gun at Shadow and shot, killing Shadow. Shadow had not exhibited any aggressive behavior towards defendant, nor posed any threat to him, nor was defendant in any physical danger at the time he fired his gun at Shadow. Shadow died as a result of a pellet shot to the aorta valve resulting in a hemorrhage. The shooting of Shadow by defendant was intentional and malicious. Plaintiffs stood nearby and observed the impact of the shot on their dog and Shadow’s immediate pain and death shortly thereafter.
¶ 4.The parties further stipulated that, as a direct and proximate result of the intentional act of defendant in his shooting at and causing the death of Shadow, plaintiffs suffered severe emotional distress, manifested by recurring nightmares, sleeplessness, periods of sadness, and physical stress. According to the stipulation, plaintiffs also incurred economic and noneconomic damages, including emotional distress and “the destruction of the special relationship that each had with Shadow,” as a direct and proximate result of the defendant’s intentional conduct.
¶ 5.The parties stipulated that damages for the injuries to each plaintiff totaled over $3,000 as follows: economic damages for Sarah in the amount of $130 and for Denis in the amount of $25; mental-distress and emotional-pain-and-suffering damages for each in the amount of $1,500; and -damages for each in the amount of $1,500 for the destruction of the special relationship each had with Shadow, including “the solace, affection, friendship and love” that they shared. Notwithstanding the fact that their amended complaint sought punitive damages, the parties included no mention of such damages in their stipulation submitted to the court. Thus, the trial court presumed them waived and considered only economic and noneconomic damages in rendering judgment.
¶ 6.The court awarded full economic damages for the intentional destruction of property, citing Economou v. Carpenter, 124 Vt. 451, 453-54, 207 A.2d 241, 243 (1965) (destruction of another’s property constitutes tort of conversion). The court then discussed the propriety of granting noneconomic damages in claims for lost pets and concluded that Vermont law does not provide any recovery for plaintiffs’ emotional distress based on the death of their pet dog. The court additionally examined the loss-of-companionship claim, which it correlated to a wrongful death action, and found plaintiffs’ request to be preempted by statute. The court explained that “the Legislature has prescribed the sorts of relationships for which damages such as these may be recovered. Those relationships do not include those between pets and their owners.”
¶ 7.On appeal, plaintiffs argue the trial court erred in denying them noneconomic damages. They maintain that, as there is no question defendant’s intentional acts caused their dog’s death and brought about their emotional distress, they are entitled to recover for the resulting noneconomic damages. Toward this end, they request that this Court extend the common law to permit such damages to the degree that they are not otherwise recognized in our jurisprudence. They further argue that the wrongful death statute, 14 V.S.A. § 1491, does not bar their claim for damages based on loss of companionship. Alternatively, they request that this Court recognize a new common law cause of action for malicious injury to a pet dog. Adhering to long standing precedent, we affirm the trial court’s decision.
¶ 8.In line with a majority of jurisdictions, Vermont law has traditionally viewed animals, including pets, as a form of personal property, and this treatment continues up to the present. Compare McDerment v. Taft, 83 Vt. 249, 249, 75 A. 276, 276 (1910) (“[D]ogs are recognized by the law as a species of property . . . .”), with Goodby v. Vetpharm, Inc., 2009 VT 52, ¶ 7, ___ Vt. ___, 974 A.2d 1269 (“[C]ommon law generally treats animals as personal property.”); see also Myers v. City of Hartford, 853 A.2d 621, 626 (Conn. App. Ct. 2004) (noting Connecticut General Statute § 22-350 defines dogs as property); Kennedy v. Byas, 867 So.2d 1195, 1197 (Fla. Dist. Ct. App. 2004) (“While a dog may be considered by many to be a member of the family, under Florida law animals are considered to be personal property.” (quotation omitted)); Nichols v. Sukaro Kennels, 555 N.W.2d 689, 692 (Iowa 1996) (per curiam) (awarding damages for injury of pet dog in like manner as other property); Soucek v. Banham, 524 N.W.2d 478, 481 (Minn. Ct. App. 1994) (“Minnesota law treats pets as property.”), abrogated on other grounds as recognized byMolenaar v. United Cattle Co., 553 N.W.2d 424, 428 (Minn. Ct. App. 1996); Kondaurov v. Kerdasha, 629 S.E.2d 181, 186-87 (Va. 2006) (recognizing “the law in Virginia, as in most states that have decided the question, regards animals, however beloved, as personal property”); Rabideau v. City of Racine, 2001 WI 57, ¶ 5, 627 N.W.2d 795 (“[T]he law categorizes the dog as personal property despite the long relationship between dogs and humans.”). Plaintiffs recognize as much in their brief, characterizing this cause of action as “one for destruction of property.” Accordingly, we measure available damages resulting from the injury or death of a pet as we would like damages to any other item of personal property: the property’s value before the injury less the value after the injury. Goodby, 2009 VT 52, ¶ 7; see also Turgeon v. Schneider, 150 Vt. 268, 273, 553 A.2d 548, 551 (1988) (upholding award for damaged farm equipment and using same measure for determining damages); Paska v. Saunders, 103 Vt. 204, 215, 153 A. 451, 456 (1931) (upholding damages for conversion as “fair market value of all the cattle[] at the time of the taking”)
¶ 9.We have noted in the past that categorizing a beloved pet as mere property fails to recognize that such an animal’s “worth is not primarily financial; . . . its value derives from the animal’s relationship with its human companions.” Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997). Indeed, we have suggested that the emotionless economic calculus of property law may not fully compensate a mourning pet owner and that “there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner.” Goodby, 2009 VT 52, ¶ 7. Nevertheless, our case law is clear that noneconomic damages—as distinct from alternate means of valuing a pet’s monetary worth—are not available in property actions. See id. ¶¶ 7-8 (discussing valuation of pets in Lemare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598 (1999), and Morgan, 167 Vt. 99, 702 A.2d 630).
¶ 10.Last year, in Goodby v. Vetpharm, we addressed a case with a substantially similar background to plaintiffs’ cause and with a nearly identical prayer for relief. Our reasoning there guides and confirms the resolution of this case. Goodby involved claims for emotional damages.
