Defendant’s dogs killed plaintiffs’ cat. The trial court found that defendant was negligent and awarded plaintiffs $1,000 in compensatory damages but denied plaintiffs’ claims for negligent infliction of emotional distress and loss of companionship. Plaintiffs appeal, arguing that they should be compensated for emotional distress resulting from witnessing the death of their pet. We affirm.
Although defendant’s answer denied all of the allegations in plaintiffs’ complaint, defendant did not appear at trial to offer any evidence contradicting plaintiffs’ testimony or affidavits. Nor did defendant appear on appeal. The trial court found that plaintiffs had made out a prima facie case for negligence; we can therefore infer that the court found the following facts, which are necessary to support that conclusion.
Defendant’s two pit bulls, running loose without permission on plaintiffs’ property, spotted their pet cat, chased her into a neighbor’s yard, and mauled her to death. Plaintiff Santose saw the beginning of the chase and called to her husband, plaintiff Lockett, who ran from their house and attempted to stop the attack. After the dogs dropped the mauled cat on the ground and ran away, Santose picked her up and saw she was gravely injured but still alive. Plaintiffs immediately rushed her to the veterinarian, but she died en route.
In this action, plaintiffs allege that defendant was negligent in keeping and harboring deadly animals in a residential setting and in failing properly to control, train, and restrain them, “conduct which constitutes a clear private nuisance,” as a result of which plaintiffs “suffered significant mental anguish” and “were deprived of [the cat’s] future companionship.” They sought $10,000 in damages for emotional distress and $8,760 in damages for loss of companionship. The trial court found that the cat’s death was the foreseeable result of defendant’s negligence. However, the court held that, as a matter of law, plaintiffs could not recover emotional distress damages and that no precedent in Oregon law allowed damages for the loss of a pet’s companionship.
Generally, a person cannot recover for negligent infliction of emotional distress if the person is not also physically injured, threatened with physical injury, or physically impacted by the tortious conduct. Hammond v. Central Lane Communications Center,
Thus, because defendant’s pit bulls did not physically injure or even tortiously touch plaintiffs, they must prove that: (1) defendant not only negligently allowed his dogs to run free, thereby foreseeably injuring plaintiffs’ cat; (2) in so doing, defendant breached a legal duty to them over
Plaintiffs suggest two such legal duties: the duty to avoid inflicting private nuisance and the duty to avoid injuring “constitutive property’ such as pets. They do not seriously pursue the argument based on private nuisance, nor would serious pursuit have succeeded. Private nuisance is defined as an “invasion of the individual’s interest in the use and enjoyment of land.” Macea v. Gen. Telephone Co. ofN.W.,
Rather, plaintiffs rely on a theory of constitutive property. That theory is based on the proposition that ownership or possession of certain personal property, like a pet, can become a central aspect of the owner’s sense of identity. In support of this proposition, plaintiffs cite Steven M. Wise, Wrongful Death of a Companion Animal, 4 Animal L 33 (1998). Wise refers to pets, for which he uses the term “companion animals,” as “quasi-children” who “may also be metaphorical extensions of their owners” to the extent that “the wrongful killing of one’s companion animal may threaten the way in which an owner constitutes herself: in losing her companion animal, she loses a vital part of herself.” Id. at 67-68. According to plaintiffs, Oregon courts have already identified a person’s interest in constitutive property as a legally protected interest. They rely on Mooney v. Johnson Cattle,
Plaintiffs then argue that we have the authority to declare that wrongful destruction of such constitutive property is a breach of duty or invasion of an interest on which emotional damages can be based. In support of that argument, plaintiffs cite Meyer,
The fatal flaw in plaintiffs’ logic occurs at the first step. Our authority to make policy choices in this context is limited to deciding which independent legally protectible interests are sufficiently important to serve as the foundation for emotional distress damages; it does not extend to creating independent legally protectible interests. See Curtis,
Affirmed.
Notes
A dog that injures or kills a pet cat is a public nuisance. ORS 609.095(l)(h); ORS 167.310(2). “Public nuisances must be vindicated by the state unless an individual can show that he has suffered a special damage over and above the ordinary damage caused to the public at large, in which case he has a private action for damages.” Raymond v. Southern Pacific Co.,