On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice Hoens
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)
Joyce McDougall v. Charlot Lamm (A-99-10) (067436)
HOENS, J., writing for a unanimous Court.
In this appeal, the Court determines whether a pet owner should be permitted to recover for emotional distress caused by observing the traumatic death of her pet.
On June 7, 2007, plaintiff Joyce McDougall was walking her dog when a large dog belonging to defendant Charlot Lamm ran out, grabbed plaintiff's dog by the neck, and picked it up and shook it several times before dropping it, causing the death of plaintiff's dog. Plaintiff bought the dog as a puppy for $200 in 1997, and believed a new puppy would cost $1,395. She described the dog as a "friendly, lively, energetic dog" that loved children and was capable of performing many tricks that she and her family had taught it. Plaintiff testified that the dog was very happy to see her when she came home, slept in a bed near hers, and was with her much of the time. She alleged that defendant was negligent in maintaining her dog and demanded compensatory damages. Plaintiff also alleged that, as a result of witnessing the dog's death, she suffered significant emotional distress for which she demanded damages. The trial court dismissed the emotional distress claim, observing that the law categorizes dogs as a form of personal property and there is no cause of action in New Jersey that permits an emotional distress claim based on property loss. Defendant stipulated to liability and the parties waived their right to a jury trial. After hearing evidence on damages, the court awarded $5,000 to compensate plaintiff for the replacement cost of the dog and the loss of a well-trained pet. Plaintiff appealed the dismissal of her emotional distress claim. The Appellate Division affirmed.
HELD: There is no basis in law or public policy to expand the traditionally and intentionally narrow grounds established in Portee v. Jaffee, 84 N.J. 88 (1980), which permits compensation for the traumatic loss of carefully defined classes of individuals, to include emotional distress claims arising from observing a pet's death. Although humans may share an emotional and enduring bond with pets, permitting that bond to support a recovery for emotional distress would require the Court to vastly expand the classes of human relationships that would qualify for Portee damages or to elevate relationships with animals above those shared with other human beings.
1. Historically, plaintiffs could only recover for emotional anguish if the plaintiff also suffered a physical injury. That was eventually replaced by a requirement that the plaintiff be within the "zone of risk" of substantial bodily injury. Evolution of a bystander's emotional distress claim culminated in Portee, which sets forth the four elements for a bystander's emotional distress claim in New Jersey: (1) death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship with the injured person; (3) observation of the death or injury; and (4) severe emotional distress. These elements were intentionally designed to create a narrow class of claimants who could be readily identified and to identify those who were foreseeable plaintiffs. This appeal only requires consideration of whether a pet can fulfill the requirement that the relationship qualify as "a marital or intimate familial" one, which is what makes the emotional harm so serious and compelling. (pp. 11-14)
2. After Portee, the Appellate Division determined that a plaintiff's asserted relationship with her five-year-old neighbor as the son she never had did not suffice for Portee purposes because she was "not bound to the child by intimate family ties." Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244 (1984). In Dunphy v. Gregor, 136 N.J. 99 (1994), the Court concluded that persons engaged to be married and living together may fall into the category of relationships that are enduring and genuinely intimate and thus meet Portee's requirement that the harm be foreseeable. The analysis of the nature of the relationship to the decedent has been carefully limited. Not even all relationships with humans are sufficiently close to support an award for emotional distress claims. Here, the question is whether plaintiff has identified sound reasons to extend the scope of the Portee claim to pets. (pp. 15-17)
3. Plaintiff's arguments rest on implicit assumptions that there is a class of "companion animals" with which their owners interact in a manner akin to a relationship with other humans and that this relationship should be considered in determining compensation. The majority of jurisdictions that have considered whether pet owners should be permitted to recover for emotional distress arising from the death of the pet have not authorized the cause of action. Some have adhered to the historical legal principle that regards pets as a form of personal property. Courts have also cited public policy considerations, including concerns that our "enormous capacity to form bonds" with animals would make it impossible to define boundaries for the cause of action and that it would burden courts with a greater caseload. A few states have permitted pet owners to recover for emotional distress resulting from the loss of pet. One state reasoned that a veterinarian's negligence that resulted in a dog's death was "of a character amounting to a great indifference to the property of the plaintiffs." Another extended its cause of action for negligent infliction of emotional distress to permit recovery arising from a loss to personal property generally, not just pets. (pp. 18-25)
4. New Jersey law has traditionally treated animals as property. Pet owners were historically limited to market value. In Hyland v. Borras, 316 N.J. Super. 22 (App. Div. 1998), the Appellate Division recognized that pets are a special form of personal property. The court reasoned that a household pet is not like "disposable property, intended solely to be used and replaced," and thus a defendant could be required to reimburse veterinary expenses. In Houseman v. Dare, 405 N.J. Super. 538 (App. Div. 2009), the court held that pets have a "special subjective value" to their owners; analogized pets to family treasures "that induce a strong sentimental attachment"; and held that agreements of cohabitants about disposition of a companion animal may be specifically enforced when that remedy is appropriate. Thus, courts have recognized that pets are not fungible and have permitted pet owners to be awarded costs in excess of market value that represent pecuniary losses associated with medical treatment, damages based on intrinsic value, or specific performance of an agreement. (pp. 26-29)
5. In determining whether to recognize a new common law cause of action, the Court considers public policy and fairness by weighing and balancing the relationship of the parties, the nature of the risk, the opportunity and ability to exercise care, and the public interest. One important factor, foreseeability, requires consideration of whether the injury is within the range of harm that emanates from a tortfeasor's negligence. Requiring a significant relationship between a plaintiff and victim helps to preserve the distinction between ordinary emotional injuries that would be experienced by friends and those that Portee recognized as compensable, namely the stunning emotional injuries suffered by one whose relationship with the victim "is deep, lasting, and genuinely intimate." In considering the public policy implications of imposing a duty, a court should be "reluctant to impose a duty that society is unwilling to accept." Courts and commentators have identified potential concerns of creating an emotional distress claim in favor of pet owners, such as opening the door to claims arising from the loss of other types of property, difficulties determining who would be entitled to recover, and the impact on the practice of veterinary medicine. (pp. 29-32)
6. The Court declines to expand the class of individuals authorized to bring a Portee claim to those who have witnessed the traumatic death of a pet. First, the Court has strictly limited the kinds of relationships with other humans that can support a Portee claim precisely because of the intention to preserve the essential principle of foreseeability to serve the ends of fairness to all parties. Second, expanding the cause of action would be inconsistent with existing statutes such as the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, which limits recovery to pecuniary damages regardless of the closeness of consanguinity, and statutes regulating dog owners and addressing dangerous dogs, such as N.J.S.A. 4:22-20 (defining abandonment of domestic animal as disorderly persons offense) and N.J.S.A. 4:19-16 (setting forth dog owner's liability for injuries inflicted by dog's bite). Third, although pets are not merely property, that alone cannot support a new cause of action. Their value is recognized by permitting recovery to exceed replacement value and include intrinsic value. Fourth, a clear line cannot be drawn to distinguish which pet owners would qualify for recovery and which would not. Describing some pets as companions is insufficient because the descriptive definition of that role would equally apply to many human relationships. (pp. 32-36)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and PATTERSON join in JUSTICE HOENS's opinion.
JUDGE WEFING did not participate.
JUSTICE HOENS delivered the opinion of the Court.
In this appeal, we are asked to consider whether a pet owner should be permitted to recover for emotional distress caused by observing the traumatic death of that pet. Asserting that pets have achieved an elevated status that makes them companions in the lives of human beings, plaintiff Joyce McDougall asks this Court to hold that pets should no longer be considered to be mere personal property. With that fundamental shift in the way that pets are seen in the eyes of the law as her backdrop, plaintiff asks us to permit her to recover for the emotional distress she endured after she watched her dog as it was shaken to death by a larger dog.
The basis in our law for recovering emotional distress damages arising out of observing the traumatic death of another was first expressed by this Court in Portee v. Jaffee, 84 N.J. 88 (1980). Since that time, the doctrine has been narrowly applied and we have carefully limited the circumstances in which such relief is available. In considering potential expansions of the relief permitted under Portee, we have never concluded that it can be applied to the observation of a death, however traumatic, by one who did not share a close familial relationship or intimate, marital-like bond with the victim.
The question that we confront today is whether a bond with a pet meets that carefully circumscribed criteria. Although we recognize that many people form close bonds with their pets, we conclude that those bonds do not rise to the level of a close familial relationship or intimate, marital-like bond. We therefore decline to expand the traditionally and intentionally narrow grounds established in Portee to include claims arising from the death of a pet.
We reach this conclusion for three essential reasons. First, we do so because expanding the cause of action recognized in Portee to include pets would be inconsistent with the essential foundation of the Portee claim itself. Second, creating a cause of action based on observing the death of a pet would result in an ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings. Third, creating a new common law cause of action of this type would conflict with expressions of our Legislature found in both the statutory cause of action designed to address wrongful death of humans and in the statutes that govern rights and responsibilities of dog owners.
The bond shared between humans and animals is often an emotional and enduring one. Permitting it to support a recovery for emotional distress, however, would require either that we vastly expand the classes of human relationships that would qualify for Portee damages or that we elevate relationships with animals above those we share with other human beings. We conclude that neither response to the question presented would be sound.
The essential facts were developed in the course of a bench trial during which only plaintiff testified. Because plaintiff's claim for emotional distress had been dismissed prior to trial, that proceeding was limited to the receipt of evidence about the events that led to the dog's death and the value of plaintiff's dog. Nonetheless, the evidence is sufficient to permit us to evaluate the basis for plaintiff's appeal to this Court.
On June 7, 2007, plaintiff was walking along a street in Morris Plains with her dog Angel, a nine-year old "maltipoo."*fn1
According to plaintiff, a large dog, belonging to defendant Charlot Lamm, ran out from defendant's house. That dog, which was growling and snarling, stopped and sniffed plaintiff's dog, then looked at her and paused. After a moment, the larger dog grabbed plaintiff's dog by the neck, picked it up and shook it several times before dropping it and returning to defendant's yard. According to plaintiff, she screamed and tried to figure out if she could help the dog before attempting to telephone for help. She later learned that her dog had died.
Plaintiff bought the dog in 1997 from a neighbor whose maltese had been bred to a poodle and who had previously sold such puppies to others in the neighborhood. Plaintiff testified that she paid $200 for the dog as a puppy and she was permitted to testify that she believed, based on her research on the internet, that a new puppy would cost an average of $1,395.
At the time plaintiff acquired the dog, she lived with her husband and three sons. Plaintiff and her husband later separated and her three children all grew to adulthood and moved out of the home, at which point plaintiff lived alone with the dog. Plaintiff described the dog as a "friendly, lively, energetic dog" that loved children. She also described the dog as being highly trained and capable of performing many tricks that it had been taught by plaintiff and her family. Plaintiff also testified that she has not replaced the dog since the incident that led to the dog's death.
Because of the limited focus of the trial, plaintiff did not offer evidence about the nature or extent of her emotional distress, but she did testify about her relationship with the dog. According to that testimony, the dog was very happy to see her when she came home, the dog slept in a bed near hers in the bedroom, and ...