*1 2117(c) 2119(e) Rules in this regard. They therefore waive this issue.
Accordingly, we Superior reverse the Court’s Order to extent that it allowed a new trial on lung claim, cancer affirm grant of a new trial limited only to the non-cancer injury claims.
NIGRO, J., concurs in the only. result
Supreme Pennsylvania. Court of
Argued Oct. 1995. July Decided 1996. *3 Jacobsen, Audrey Berwyn, L. Christopher Dougherty, E. Craven, Norristown, Charles for Nancy W. 0. Brown. Dowling, John C. for Harrisburg, amicus curiae—A.V.M.A. Halligan, Media, William Tracy G. Price. NIX, C.J., FLAHERTY, ZAPPALA, CAPPY,
Before MONTEMURO, CASTILLE and JJ.
OPINION ZAPPALA, Justice. presented
The issue appeal this is whether based upon alleged breach of a bailment agreement states a cause of action for injury or death suffered animal that by an has been entrusted a veterinarian for profes- sional treatment. allegations We hold that of breach of a *4 bailment are to agreement insufficient state a cause of action against a veterinarian performed who has on an surgery animal the when animal an injury suffers as a result or does not surgery. survive the 4, 1993,
On May Tracy Price filed a complaint against Brown, veterinarian, Nancy 0. a alleging that had she deliv- ered her English Bulldog to Dr. Brown for surgical treatment to correct prolapsed a urethra. Dr. Brown performed the August 30, surgery on 1991. The next Price evening, visited inquired dog’s She into the veterinary hospital. the at the dog strenuously dog panting that the was observing condition after dog that the be moni- requested She appeared groggy. was assured that would be done on a 24-hour basis and tored alleged Dr. Price that agent of Brown’s. by an unidentified evening. after that midnight was left unattended dog the dog the died. morning September the During a liability only upon based complaint, In her Price asserted been dog Price that the had alleged of bailment. theory promise Dr. Brown in reliance the entrusted to perform necessary surgery that would the representation she health as general good to her in the same dog and return the the that Dr. Brown had breached alleged before. Price monitor the condition and by failing dog’s to agreement alleged in health. Price that the dog good to return the failing $1,200.00 value of the was and demanded fair market in that amount. judgment nature of a demurrer were
Preliminary objections the order dated complaint. By filed to the October objections and dismissed preliminary trial court sustained The trial court concluded complaint prejudice.1 without without agreement, that of a breach of a bailment allegations more, against a cause of action are insufficient to state to an animal entrusted to his injury veterinarian for death or professional or her care for treatment. reversed, finding complaint Superior Court for breach of a to state a cause of action
was sufficient of whether a bailment and that the issue agreement specific alleged under the facts was agreement existed factfinder. The court did not consider matter overnight the dog that Dr. Brown failed to monitor allegation care, that where negligent reasoning implications and its a cause of action bring the owner of an animal chooses question relevant negligence only bailment rather than support implied presented sufficient facts are whether Price amended her after 1. The record does not indicate that the order was entered.
221 The matter was remanded agreement parties. between proceedings. for further reverse and reinstate the granted allocatur now
We dismissing complaint. trial court’s order by is following applied The standard of review to be sustaining to the of challenge court where there is a appellate objections the nature of a demurrer. preliminary as well as all All material facts set forth therefrom are admitted as reasonably inferences deducible this, purpose question present- true for of [the review.] whether, averred, on the facts the law by ed the demurrer is no is says certainty recovery possible. with that Where sustained, a demurrer should be doubt exists as to whether overruling in favor of it. this doubt should be resolved Furches, 60, 66, 458, 503 Pa. 468 A.2d 461-2 Mahoney omitted). (1983) (citations for must examine the elements of a cause of action
We of a bailment and those of a cause of action agreement breach to determine whether professional negligence preliminary for trial court in this objections properly by were sustained case.
“A of for the personalty, bailment is a contract, purpose upon express of some accomplishment fulfilled, it shall be implied, purpose that after the has been it, otherwise dealt person redelivered to the who delivered until it.” according kept to his directions or he reclaims with 440 269 A.2d 480 Westfall, Smalich v. Pa. (citation omitted). Therefore, a cause of action for breach if agreement arises the bailor can establish bailee, a has been delivered to the demand personalty made, of the bailed has been and the bailee has goods return the personalty. failed return produces satisfy the bailor evidence to those
When elements, duty going has the forward with bailee so, if accounting for the loss and the bailee fails to do evidence those responsible he for the loss. It is assumed under 222 duty
circumstances that the bailee has failed to exercise the care required agreement.2 Schell v. Miller North Storage Broad Company, Pa.Super.
(1940). hand, the other should the go On bailee forward with showing personalty evidence that the was lost and the manner lost, it which was and the evidence does not disclose a lack part, of due care on his then the burden of proof again shifts to the bailor who must prove negligence part on the of the bailee. Id.
As to a cause negligence of action based on the veterinarian in of performance professional the duties his/her services, malpractice or we note at the outset that claims have arisen in traditionally provided by the context of services the and medical legal professions. practice Similar to the of law medicine, veterinary or the vocation of medicine involves education, conclude, specialized knowledge, and skills. We therefore, professional negligence also extend concepts to veterinary medicine. practice veterinary extensively of medicine is regulated
in Pennsylvania Act, under the Veterinary Medicine Practice § 63 P.S. 485.1 et seq. “Veterinary medicine” is defined as the “branch of medicine which deals with the diagnosis, prog- nosis, treatment, administration, prescription, operation or manipulation application any apparatus or of or for appliance disease, defect, any pain, deformity, injury, wound or physical any prevention condition of animal or for the of or the testing 485.3(9). § presence any for the of disease.” 63 P.S. The Act Veterinary established State Board of Medicine include, the of Department within State whose duties inter alia, the of adoption regulations governing rules the medicine, practice veterinary of approval qualifications of of for a license to applicants practice, regulation of licensed bailment, i.e., bailor, types 2. of Different sole benefit to sole benefit to bailee, benefit, impose upon and mutual different standards of care Excavating Senger Trucking, bailee. Ferrick 506 Pa. case, allegations In this of a bailment indicate where mutually parties, required one beneficial to both the bailee is to exercise ordinary diligence responsible ordinary neglect. and is 485.4, intends person §§ A who 485.5. veterinarians. 63 P.S. must obtain a- Pennsylvania veterinary medicine practice may license registration. The board license and maintain pays requi- who veterinary any applicant medicine practice (1) she: satisfactory evidence that he or fee and submits site (2) old; ap- from an graduated has eighteen years at least (3) medicine; has college veterinary proved school (4) board; and required by examination a license passed by The prohibited of a felonious act has not been convicted Substance, Act. 63 Drug, Device and Cosmetic P.S. Controlled § 485.9. negligent
To a cause of action based state performance acts or omissions of a veterinarian (1) services, plaintiff plead duties or must professional duty; for the of the veterinarian or other basis employment appropriate failure to exercise the stan the veterinarian’s *7 care; departure that veterinarian’s from dard of and the injury cause of the animal’s proximate that standard was the allege A that the veteri plaintiff specifically or death. must performance professional in the of his negligent narian was contrast, of bailment In a claim based a breach services. to be allegation negligence agreement require does not the does not bear theory, plaintiff made. Under a bailment acts producing negligent the initial burden of evidence of the however, veterinarian; plaintiff of the the does or omissions negligence is asserted. professional bear that burden when case, a cause of action for complaint In this Price’s asserted of a bailment solely upon death based breach dog’s her preliminary objections Price asserts that to agreement. by have been sustained the trial court complaint should not pled elements of a bailment were because all of the traditional Brown3; i.e., that dog of the to Dr. complaint, return; that Dr. Brown dog’s made for the and a demand was health and dog general good to return the the same failed allega any explanation Although not therefor. provide did complaint, stated Price also tions to that effect were Law, seq., dogs § declared to be Dog 3 P.S. 450-101 et are 3. Under 459-601(a). § personal property subjects of theft. 3 P.S. and that Dr. alleged dog surgical she delivered the Brown for urethra, treatment to correct a that prolapsed surgery was that Dr. performed, dog’s Brown failed to monitor the condi- tion that overnight, days the animal died within two after surgery. objections
The trial court sustained preliminary complaint, determining liability could not be imposed upon a veterinarian for breach of a bailment agreement when an animal is delivered for the particular purpose The court that a procedure. recognized personal property, “Allegations might give but stated that which rise to are, more, a bailment without insufficient to state a cause of against damage action a veterinarian for death or to an animal (Trial entrusted to or her veterinary his care for treatment.” 3). court slip opinion at The court concluded that in order to loss, recover for such damages plaintiff plead must prove that the veterinarian negligent. was agree
We with the trial court that the for purpose which an animal is entrusted to the care of a veterinarian is material fact that must be considered in determining whether a plaintiffs complaint states a cause of action as a matter of law, and that complaint Price’s failed to state a cause of action professional negligence. allegations relating to the professional services rendered Dr. Brown cannot be delib erately excised from the as if the veterinarian’s services were no different than those offered aby kennel operator dog groomer. There are significant differences *8 provided between services aby veterinarian and grooming caretaking or services.
The in Superior focusing solely Court erred on whether an implied agreement bailment could be found aside from agreement provide medical treatment for the animal. The specific allegations dog’s that Price’s observations of her con- dition her following surgery prompted request dog that the clock, be monitored around the that the left dog was unattend- ed after and that the the next midnight, morning, died
225 selective review Superior Court’s superfluous. not were complaint improper. of the was allegations of the is reversed Court Superior the order of the Accordingly, is reinstated. trial court’s order and the not J., did MONTEMURO, sitting by designation, was who in of this case. the decision participate CASTILLE, J., NIX, C.J., dissenting opinions. file NIX, Justice, dissenting. Chief Mr. Justice Castille agree
Because I too
with
in her
sufficient facts
alleged
in the instant matter has
plaintiff
of a
a breach
grounded
to state a cause of action
However, I
contract,
must disasso-
I must dissent.
bailment
Castille’s dissent-
from that
of Mr. Justice
myself
portion
ciate
decision as
majority’s
characterizes the
which
ing opinion
action,
veterinary malpractice.
a
cause of
that of
creating
new
to refer to a cause
technically
be
incorrect
Although may
it
majority
malpractice,
a
as
against
of action
veterinarian
can be based
that a cause of action
correctly states
perfor-
of a veterinarian
acts or omissions
negligent
See,
Durkin v.
e.g.,
Equine
duties.
professional
mance of his
(1983).
75,
In order
Clinics, Inc.,
Despite agreeing I grounded negligence, action allege a cause of properly conclusion that a majority’s strong exception take with a against a cause of action proper is not breach when on an animal performed surgery who has veterinarian the surgery. or dies as a result of injury animal suffers an accomplish- for the personalty “A bailment is contract, implied, express purpose upon of some ment *9 226 fulfilled,
that after purpose has been it shall be redelivered it, to person who delivered otherwise dealt with according to his kept directions or until he reclaims it.” Smalich v. (1970) (citations Westfall, 409, 413, 440 Pa. 480 omitted). As Mr. correctly Justice Castille stated in his dissenting opinion, ... Pennsylvania “[u]nder law animals may subject be the of bailments.” Dissenting Opinion, at 227. matter, In the instant the plaintiff alleged that she delivered her English Bulldog to Dr. Brown to correct a medical condi- tion. following day The died. Despite those allega- falling squarely tions within majority’s own definition of a bailment, the majority refuses to recognize a cause of action in grounded bailment. I agree cannot with such a decision. Instead, I plaintiff believe that the could properly have filed a complaint against the defendant based on either breach aof bailment or professional negligence. case, That being the I believe that the decision majority of the is incorrect as the plaintiff alleged bailment, a cause of action grounded if proven to the satisfaction jury, would in liability result being imposed upon the defendant.
CASTILLE, Justice, dissenting. majority here a holds that based upon a breach of bailment agreement is insufficient to state a cause of action against a veterinarian who performs surgical proce- dures on an animal where the animal suffers an injury or expires as a of Instead, result these procedures. the majority action, creates a new cause of veterinary malpractice, medical and holds that such situations as here this new cause of action extends to veterinarians who perform surgical or medi- cal procedures on an animal in negligent a manner. I Because believe that bailment adequate theories are to address such situations and that professional medical malpractice concepts should not by be extended this Court to veterinary the field of medicine, I must respectfully dissent.
As majority, noted “bailment” is a personalty for the accomplishment purpose some contract, express implied, purpose after the has been
227
who
person
be redelivered
fulfilled,
shall
personalty
form. Sma-
altered
agreed
in the same or
it
delivered
476, A.2d
*10
440 Pa.
Westfall,
v.
lich
personal proper-
of
involve items
agreements
Typical
Parking
Philadelphia
Taylor v.
automobiles. See
ty such as
(1959).
case
present
9,
A.2d 525
Pa.
156
Authority, 398
surgical
to a veterinarian
pet dog
concerns
as
law,
recognized
are
dogs
Pennsylvania
Under
procedures.
459.601(a),
Dog
Law.
§
3 P.S.
See
personal property.
that animals
demonstrates
jurisdiction
within this
Case law
Hunsberger,
v.
See Conn
subject of bailments.
may be the
(1909)
who must
keeper
154,
(livery-stable
A. 324
224 Pa.
73
a customer
a horse to
supplying
in
care
exercise reasonable
customer);
Middleton
with the
relationship
has bailor-bailee
colts under
589,
(delivery of two
Stone,
Id. at in sitúa- on veterinarians a reasonable burden proof imposes tions involving surgical medical or procedures on animals since a veterinarian will still have to explain the course of treatment for the animal in question and adequately explain why animal was not returned per as the bailment agreement. Therefore, since an animal subject is to bailment agreements and no undue burden placed on veterinarians the bail- action, ment cause of I believe that bailment theories are adequate to address situations where perform veterinarians medical or procedure on an animal and the animal is not returned the same condition as when it was delivered.
Like the I majority, recognize that veterinarians are some- what similar to physicians and surgeons they are medically educated individuals who provide great service to society and that practice their is extensively regulated by the I, however, Commonwealth. do not believe that it follows from these similarities that malpractice medical principles *11 normally applied only to physicians and surgeons operate who on beings human should be extended to veterinarians. Such expansion is unwarranted subject because the matter of the (humans, animals) treatment as opposed the is vastly differ- ent. As the Superior Court in this aptly case noted: do we agree
[N]or with the trial court that an animal and a veterinarian enjoy the same doctor/patient relationship as do a human being physician. and a A patient human cannot leave his or her liver or heart for treatment and make a subsequent demand for its return. Brown,
Price v. 438 Pa.Super. I also believe that medical malpractice principles should not because, be extended to veterinarians unlike medical malprac- tice in physician cases, actions surgeon the victim of veterinary malpractice is incapable bringing a cause of action against above, the veterinarian. As stated dogs are recognized personal as property in Pennsylvania. personal As property, animal, or dog any other unlike a human being, bring cannot a cause of against action the veterinarian who Rather, treated it. the animal’s owner must institute the suit and the owner of the animal legally is not the direct victim of malpractice. Moreover, I find it improper majority for the here to create a veterinary medical malpractice cause of action because if such causes of action are to be extended to the owners of animals, they pets otherwise, be or I believe such a mandate should come from the General Assembly and not this Court.
Thus, I existing believe provide theories an ade- quate remedy and fair to owners who unfortunately lose the faithful companionship pet their animals or the use and benefit of their working injuries animals from or death suf- fered as a result of medical procedures performed by veterinarians. I Accordingly, join cannot majority extending professional medical negligence concepts, which have customarily applied been to physicians and surgeons, veterinarians. above,
For the reasons set forth I would allow appellee to proceed against appellant juncture at this for the loss of her Therefore, under a bailment theory. I must respectfully dissent.
Supreme Pennsylvania. Court of
Aug. 1996. ORDER PER CURIAM: NOW,
AND this 19th day August, there having been filed with this Court by G. Robert Fitzpatrick his verified Statement Resignation July dated stating that he