June 4

Romeo’s Legacy — Emotional Distress Damages For The Pet Owner

Many of us share our homes with four-legged creatures and, with their every act of affection and seemingly boundless joy, our pets have a way of burrowing themselves deep into our hearts. After just a short while, we can’t even imagine our lives without them in it.

So, what does the law say should happen to someone who intentionally interferes with our joys of pet ownership by harming or destroying our pet?

In February 2000, in a fit of road rage after having been bumped from the rear in traffic by another driver, Andrew Burnett angrily confronted the other driver and took the driver’s bichon frise dog, Leo, from her lap and hurled it into oncoming traffic on a busy road near the San Jose International Airport, where Leo died. Some nine years later (really? it had to take that long?), Burnett was convicted of felony animal cruelty and was given the maximum sentence available of three years in prison.

But, Burnett’s conviction did nothing to restore Leo to his owner or to ease her intense grief caused by Leo’s death. The dog’s owner had suffered a real emotional loss by Burnett’s conduct and his sentence did nothing to compensate her for it. Which then raises the question — Can a pet owner be compensated in civil monetary damages for the mental suffering experienced when a third party intentionally kills or harms the pet?

Let’s look at the case of Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590 for the answer.

And So The Trouble Begins

The Plotniks and David Meihaus were adjoining property owners in Laguna Niguel, California. When the Plotniks bought their home, there was an existing three-foot fence on the property line. But, after experiencing problems with Meihaus, the Plotniks built a new six-foot fence to provide them greater insulation against those problems. Meihaus, however, sued the Plotniks and their homeowners association over the fence, which case was eventually settled with the entry of mutual restraining orders and an agreement by the Plotniks to move their fence back three feet from the property line. The agreement contained a standard attorney’s fees provision contained in most settlement agreements.

However, this was only the beginning of misery for the Plotniks. They claimed that Meihaus dumped his yard clippings in the three foot corridor between the Plotniks’ fence and the common boundary line, made obscene gestures to the Plotniks and their children, damaged their trees and the fence, and engaged in various acts of intimidation directed towards them and their family members.

One day, David Plotnik heard banging on the fence and he went out, with camera in hand, to investigate the noise and to photograph the offending yard clippings. While he did so, the Plotniks’ 12″ miniature pinscher, “Romeo”, escaped and made his way into Meihaus’s yard. When Plotnik had made his way around the house and over to the Meihaus residence, he arrived just in time to see Romeo roll across the yard, through a gate, and hit a tree in the Plotnik yard. Plotnik immediately entered Meihaus’s yard and saw Meihaus returning to his house with a baseball bat in hand. When Plotnik confronted Meihaus about why he had attacked Romeo, Meihaus denied having struck the dog and claimed that he had only used the bat to “guide” Romeo back to the Plotniks’ property.

The Trial

The Plotniks sued Meihaus under an assortment of legal theories, including trespass to personal property and negligence. The jury awarded the Plotniks monetary damages for their costs incurred for Romeo’s surgery and post-operative care, and for the emotional distress that each of them suffered as a result of the baseball bat incident.

Meihaus appealed the verdict, arguing that he had lawfully exercised his right to self-defense. The Court of Appeal rejected that argument stating that the jury’s findings that he had not acted in self-defense could not be disturbed.

More importantly, Meihaus argued that a pet owner could not recover monetary damages for emotional distress suffered as a result of injuries caused to the pet. All pet owners will be pleased to know that the Court of Appeal disagreed.

The Court of Appeal’s Decision

The Court of Appeals denied recovery under a negligence theory. It ruled, however, that a dog is an item of personal property to its owner and that Romeo’s owner could clearly recover the economic, or out-of-pocket, losses attributable to the dog’s surgery and post-operative care under a trespass to chattels theory. The real question was whether emotional distress damages were also recoverable.

The Court found no California cases which stated that emotional distress damages were not recoverable and it agreed with published decisions from other states which awarded damages for a pet owner’s emotional distress. It quoted with approval from the case of LaPorte v. Associated Independents, Inc. (Fla. 1964) 163 So.2nd 267, 269: “The affection of a master for his dog is a very real thing and … the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal…”

Quoting favorably from a very old California case (Johnson v. McConnell (1889) 80 Cal. 545, at 549), the Court noted: “While it has been said that [dogs] have nearly always been held ‘to be entitled to less regard and protection than more harmless domestic animals,’ it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.”

Meihaus’s Ultimate Comeuppance

In what to most pet-owning lawyers would seem to be the most ironic, yet deserving, comeuppance received by Meihuas for having applied his Louisville Slugger™ to Romeo’s hindquarters is that the Plotiniks were awarded $93,780 in attorney’s fees. The appellate court found that Meihaus’s conduct violated the terms of the restraining orders which were provided in the original settlement agreement. As such, on a breach of contract theory, the court found a basis to affirm the trial court’s award to the Plotniks of their attorney’s fees expense incurred during the trial.

What Does The Plotnik Decision Mean?

The Plotnik case now makes clear that, in California, a pet owner may recover monetary damages for the emotional distress which the owner suffers as a result of the intentional conduct of a third party in killing or injuring the pet. The decision is limited to cases involving intentionally wrongful conduct and does not apply to cases where the animal is injured through the mere negligence of the third party.

This is something that most pet owners would intrinsically seem to know in their hearts is right or fair; it only took a while for the courts in California to find a case with the right facts to allow the law to be firmly enunciated.

April 30

You Have The Right To Remain Silent – And You Probably Should

It’s a Tuesday morning, you’ve had your cup of coffee and are on your way to work, and, through no fault of your own, you are involved in an automobile accident. As your car comes to a rest, you are most likely confused, perhaps a bit dazed, and the adrenaline surge has left you just as quickly as it arrived. Other motorists have begun to stop and ask you if you are alright. And, within a brief period of time, the police arrive to investigate the crash.

Right now, at perhaps the worst possible moment for you, your right to pursue a personal injury claim for the injuries you have sustained could be in serious danger. You are about to be put through a series of different people questioning you about the collision and the injuries which you may have suffered, whether it is the other driver, other motorists who may have stopped, the investigating police officer, or, eventually, the other driver’s insurance claims adjuster. And the statements that you make to any of them could cause serious damage to your case.

Your Injuries May Not Be Immediately Apparent

Because of the physical forces that are involved in car crashes, by far, the most common injury that motorists sustain are soft tissue injuries – strains of ligaments, tendons and connective tissue, usually of the neck and back. Physicians and physical therapists will almost universally agree that you may have experienced one of these soft tissue injuries in the crash, yet you feel nothing at the scene of the accident. It may be only during that night, or the next day or two, that your neck or back begins to stiffen and you begin to feel the pain. Yet, you have everyone, first at the accident scene, and then later, pressing you for the details of your injuries.

At the collision site, even if you don’t then feel any aches or pains, you should never adopt an unequivocal stance that you have not been hurt. Doing so will only serve to cast some doubt at trial about the validity or severity of your injury claim if you later do begin to experience pain. Instead, you should politely thank the motorists for stopping, but you don’t need to answer their inquiries about the nature or severity of any possible injuries.

And, when approached by the other driver (who caused the collision) who wants to talk with you about the collision, resist the urge to engage in argument. It wins you nothing to do so, and later, at trial, hearing the other driver describe to the jurors that nasty conversation will cause you much embarrassment and can give the jury the idea that you are a bully or a hothead. And that’s not good for your case.

Do You Talk To The Investigating Police Officer?

Where an accident involves bodily injury to any driver or passenger, law enforcement officers will conduct an accident investigation and later prepare an investigation report. As a part of their investigation, the police will want to talk with you since you may be the best witness to the collision and its causes. Should you answer the officer’s questions? Yes, answer honestly. However, your answers should be concise and you should only answer the specific question asked. And, do not under any circumstance admit any fault in causing the accident. Fault is something that judges and juries decide – not you, who has just been shaken up in a collision and who doesn’t yet have a full picture of the entire incident.

And, importantly, do not unequivocally deny to the officer that you suffered any injury. Instead, when the officer asks if you were injured, if you don’t yet feel any aches or pains, you simply tell the officer that it is too early for you to say for sure. Then, leave it at that.

“May I Record Your Statement?”

After the collision, the other driver will report the crash to his or her insurance company. The insurer will then assign the claim to one of its adjusters. Understand a very important concept: The job of that adjuster is to protect the company’s money. It is not to try to help you.

The adjuster may well call you at home or work to ask you about the details of the collision or your injuries. The adjuster will quite likely even ask to record your statement about the crash. Don’t. Just don’t. Fight your natural tendency to be helpful. You have absolutely no obligation to submit to the adjuster’s interview. And, trust me, the interview which you provide the adjuster will not be so convincing that the adjuster will want to immediately write you a check for your medical bills and provide you a rental car. That interview will be used for the purpose of trying to see if you will make an admission about the cause of the collision or about your injuries that can be used against you later on during an arbitration or trial of your injury claim. You should graciously decline the request to be interviewed and advise the adjuster that your attorney will contact her to discuss the claim.

If you do submit to such an interview, and you unwittingly make a statement which suggests that your own driving may have been a cause of the collision, or that you weren’t really significantly injured, you have just harmed your case. You will hear that statement (called an “admission”) repeated to you during your deposition, and later during your trial or arbitration.

I recommend to my clients that they allow me, as their attorney, to talk with the insurance adjuster. An experienced personal injury attorney knows how to give the adjuster the information that he or she needs to do her job in establishing the appropriate monetary reserves for the case, but which steers clear of making statements that can harm your case.

Once your lawsuit is filed, almost invariably, the defense attorney will ask to take your deposition. (A deposition is an opportunity for the lawyer to ask you questions about the accident and your injuries while you are under oath.) The transcript of the deposition will be used at trial by the insurance company’s attorney to try to show the jury that you are confused in your recollection of the events, or, worse yet, that you are not telling the truth. Under most circumstances, you must submit to a deposition. But, you will be accompanied to the deposition by your attorney who can raise appropriate objections to questions, or even instruct you to not answer certain inappropriate questions, if the circumstances warrant it. In other words, there is some degree of protection for you in that process.

So, if the insurance defense lawyer will always have the chance to ask you questions during a deposition, then why should you create an additional opportunity for possible misstatements by your providing the adjuster a recorded interview shortly after the collision? That’s right; you shouldn’t. Instead, opt to remain silent.

What You Should and Shouldn’t Do

In short, if involved in a collision, you need not, and should not, talk with other motorists, or the other driver, about what caused the collision or whether or not you have been injured. You should talk with the investigating officer about the events of the crash, and, if you can already feel that you have been injured, tell the officer that. But, if you don’t feel injured, do not deny to the officer that you were injured in the collision. Instead, simply tell the officer that you are not sure whether or not you were injured.

A Last Thought …

Finally, one last tip about what to do after an auto accident. Most people carry a smart phone that is equipped with a camera which can take still photos or video. If you are physically able to do so, right there at the scene of the accident before the wreckers arrive and move the cars from where they came to rest, use your smart phone to photograph or video the cars involved in the crash. Be sure to capture the location of all of the cars, particularly with respect to each other. Photograph or video the crush damage done to either vehicle. And, if you can do so without causing an incident, be sure to get the other driver in some of the photos or video. Those photographs or videos can be like gold for the attorney who will eventually handle your case.

Now, drive carefully because I am out there sharing the roads with you!