56 Mass. App. Ct. 418 | Mass. App. Ct. | 2002
On April 24, 1993, two dogs owned by the defendants entered onto the plaintiffs’ residential property in the town of Ware and killed seven of the plaintiffs’ sheep. The plaintiffs learned of these killings the next day when they returned to their home after an out-of-State trip. They later filed a complaint against the defendants in the Superior Court, claiming the sheep were “companion animals” and essentially seeking damages for emotional distress and loss of companionship and society.
Procedural background. The plaintiffs’ complaint, in its final amended form, contains six counts. Count 1 seeks damages for violation of G. L. c. 140, § 155.
The defendants filed a motion for summary judgment which was allowed as to counts 3, 4, and 5. After the plaintiffs refused to respond to discovery requests relating to the market value of the slain sheep, the defendants moved to prohibit the plaintiffs from offering such evidence. In the same motion, they also sought to preclude evidence of any emotional distress suffered by the plaintiffs. Plaintiffs’ counsel stated that his clients did not “intend to offer any evidence of the market value of [the sheep] because they believe that they are their family members and that it is morally inappropriate for them to seek market value damages for the death of their family members.” At the hearing on the motion, there was uncontroverted testimony and
The judge decided that the plaintiffs did not have “a legally cognizable claim for emotional distress occasioned by [the] loss” of the sheep, and accordingly allowed the motion to preclude evidence of emotional distress. Both parties then waived their right to a jury trial and submitted the case for a determination on its merits.
Factual background. The plaintiffs argue that the term “companion animal” is not limited to cats and dogs and that the evidence at the motion hearing established that the slain sheep were pets and “companion animals” to them.
Discussion. By refusing to offer evidence of economic loss, the plaintiffs essentially limited the damages component of their complaint to damages related to their claims of emotional distress and loss of companionship and society.
Emotional distress. Our decisional law permits certain persons to recover damages in tort for emotional distress resulting from an injury to a third party.
Among the pragmatic judgments applied to claims of emotional distress are those imposing requirements of spatial and temporal proximity upon plaintiffs. Id. at 633. Recovery has been limited to those plaintiffs who witness the injury or come upon the injured party at the scene of the injury or immediately after the infliction of the injury. Dziokonski v. Babineau, supra at 568. Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 518 (1980). See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341-342 (1983) (recovery for negligent infliction of emotional distress denied where plaintiff did not learn of her son’s death in distant airplane crash until seven hours after it occurred); Stockdale v. Bird & Son, Inc., 399 Mass. 249, 251-252 (1987) (recovery for negligent infliction of emotional distress properly denied where plaintiff did not learn of her son’s death until four hours after it occurred and did not view his body until next day); Nancy P. v. D’Amato, 401 Mass. 516, 522 (1988) (“[ejven if the family member’s presence were not a condition of liability [for intentional or reckless infliction of emotional distress], we would normally require. . . substantially contemporaneous knowledge of the outrageous conduct . . .”); Anthony H. v. John G., 415 Mass. 196, 199 (1993) (to recover for intentional infliction of emotional distress, plaintiff must be present at time of defendant’s misconduct). Putting aside the broader issue of noneconomic damage for injuries to companion animals, under the pragmatic position taken by our case law, the plaintiffs’ absence at the time of the killing of their sheep and the fact that they did not learn of the slaughter until the following day alone preclude any recovery for the emotional distress suffered by them.
In the circumstances, it was reasonably foreseeable that the plaintiffs would suffer emotional distress upon learning of the slaughter of the sheep and seeing their bodies. It would be il
Loss of companionship and society. The plaintiffs’ claims of damages for loss of the sheep and their companionship and society, if cognizable under any theory, fall within the claims encompassed by the concept of loss of consortium.
We conclude that the damages sought by the plaintiffs, in the circumstances, are unavailable to them as matter of law, and that, at most, the only damages to which they are entitled are the nominal damages that they have been awarded. Accordingly, we affirm the judgment for the defendants on counts 2, 3, 4, 5, and 6, and for the plaintiffs on count 1 in the amount of one dollar.
So ordered.
That statute, in pertinent part, makes the owner or keeper of a dog strictly liable for any damage caused by that dog “to either the body or property of any person.”
The parties reserved their rights to a jury trial in the event that an appellate court later permitted the issue of noneconomic damages to go to trial.
The plaintiffs make no argument with respect to the count alleging intentional infliction of emotional distress.
The plaintiffs, relying on a text on veterinary ethics, describe the term “companion animal” as referring to any nonhuman animal involved with one or more human beings in a relationship that is “at the very least a continuous, bidirectional relationship . . . that brings a significant benefit to a central aspect of the lives of each, which is in some sense voluntary, and in which each party treats the other not just as something entitled to respect and benefit in its own right, but also as an object of admiration, trust, devotion, or love.” The plaintiffs’ reference for this material is Tannenbaum, Veterinary Ethics 125 (1989).
The plaintiffs’ damage claims for medical expenses are derivative of and reliant upon the validity of the claims of emotional distress.
Because a claim for emotional distress has been held to be distinct from a claim for wrongful death, Cimino v. Milford Keg, Inc., 385 Mass. 323, 334 (1982); Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 789 n.8 (1982), we analyze the plaintiffs’ emotional distress counts outside of G. L. c. 229, § 2, the wrongful death statute, which, in any event, does not address damages for emotional distress. Also, contrary to the argument of the plaintiffs, and notwithstanding any perceived inadequacies in the wrongful death statute, it appears anomalous, absent legislation, to permit more extensive recovery for the death of an animal than for the death of a person.
The plaintiffs, in calling for such an expansion, rely in part on Sullivan v. Boston Gas Co., 414 Mass. 129, 140 (1993), in which the nature of the injured interest apparently was not made an appellate issue, but in which the emotional distress claims of two persons who witnessed the destruction of their home was permitted to go to trial.
Broadly defined, “consortium” includes “companionship, cooperation, affection [and] aid.” Black’s Law Dictionary 304 (7th ed. 1999).
General Laws c. 229, § 2, provides in pertinent part that “[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person. . . shall be liable in damages . . . for the loss of the . . . society, companionship [and] comfort... of the decedent. . . .”
A Federal District Court case relied on by the plaintiffs only holds that persons who “willfully” allowed their livestock to graze on government land after cancellation of their grazing permit were guilty of a trespass warranting issuance of an injunction and an order requiring payment of a fee for unauthorized grazing. United States v. Gardner, 903 F. Supp. 1394, 1402-1403 (D. Nev. 1995), aff’d, 107 F.3d 1314 (9th Cir.), cert. denied, 522 U.S. 907 (1997).