On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0163-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
This appeal requires us to decide whether a dog owner may maintain a claim for emotional distress when her pet dog is killed in her presence by another dog. Although plaintiff, Joyce McDougall, acknowledges that the loss of her dog's companionship is not compensable under New Jersey law, she maintains that the trial judge erred when he declined to award damages for the emotional distress she experienced upon witnessing her dog being viciously attacked and killed. She asserts that she is entitled to the same emotional distress damages for witnessing the traumatic event as the Supreme Court approved for the witnessing of the traumatic death of a close family member in Portee v. Jaffee, 84 N.J. 88, 90 (1980). While we can understand plaintiff's considerable attachment to her dog, and the distress she suffered at witnessing such an event, we agree with the trial judge's conclusion that plaintiff's damages are limited to the replacement cost of the dog. We affirm the order under review.
On June 7, 2007, plaintiff was walking her maltipoo dog, Angel, on a public street in Morris Plains. A maltipoo is a mixture of a maltese and a poodle. Without warning, a larger dog came running from the home of defendant, Charlot Lamm, "growling and snarling." Defendant's dog grabbed plaintiff's dog by the neck, shook her violently several times and dropped her to the ground dead.
Plaintiff acquired her dog, whom she named "Angel," in 1997, while she was married with three sons. By the time plaintiff's husband moved out of the marital home in 2005, plaintiff's three sons had already left for college. Living alone, plaintiff's enjoyment of her dog's companionship increased. She described Angel as a "friendly, lively, energetic dog" who "loved people . . . and especially loved children." According to plaintiff, the dog was "very approachable and very cute." Over the years, plaintiff spent considerable time and energy training the dog to perform tricks, which included dancing on her hind legs, making a "wooo" sound for singing, rolling over and playing "dead dog," shaking hands and playing hide and seek. Because plaintiff did not have outside employment while her sons were still living at home, and did not seek employment once they left for college, she spent a considerable amount of time with the dog and developed a considerable attachment to her. In fact, Angel typically slept in a bed in plaintiff's bedroom. Plaintiff testified she had not acquired another dog to replace Angel because she wasn't "ready to do that yet." Plaintiff testified that the life expectancy of a maltipoo ranges from sixteen to nineteen years.
Prior to trial, a different judge had granted partial summary judgment to defendant, thereby limiting plaintiff's damages claim to the "intrinsic value," or replacement cost, of the dog. Defendant stipulated to liability and both sides agreed to waive their right to a trial by jury. At the conclusion of the testimony, the trial judge considered the dog's disposition and training in assessing her value and made an award to plaintiff for the replacement cost of her dog.
In the course of his ruling, the judge specifically determined that "there [can] be no recovery for emotional distress in cases such as this." In making that determination, the judge considered himself bound by the earlier order for partial summary judgment entered by another judge. The trial judge also relied upon the Law Division opinion in Harabes v. Barkery, Inc., 348 N.J. Super. 366, 373 (Law Div. 2002), in which Judge Graves held:
. . . [L]abeling a dog 'property' fails to describe the value human beings place upon the companionship that they enjoy with a dog . . . . A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog. Nevertheless, there is no authority in this State for allowing plaintiffs to recover non-economic damages resulting from defendants' alleged negligence. Furthermore, various public policy concerns [militate] against permitting such claims. Most significantly, there is no reason to believe that emotional distress and loss of companionship damages, which are unavailable for the loss of a child or spouse, should be recoverable for the loss of a pet dog. [(Internal quotation and citation omitted.)]
Recognizing that an award of damages was therefore limited to the dog's monetary value, the judge was guided by Hyland v. Borras, 316 N.J. Super. 22, 25-26 (App. Div. 1998), in which we endorsed a flexible approach to the measurement of damages for injuries to the plaintiff's dog, with the aim of "'mak[ing] good the injury done.'" (quotation and citation omitted).
In an appeal from a ruling rendered at the conclusion of a trial, we owe considerable deference to the trial judge's findings of fact and are obliged to accept those findings so long as they are supported by substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Our review of the judge's legal conclusions ...