Appeals court rules against pet owner - East Valley Tribune: East Valley Local News

Appeals court rules against pet owner

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Posted: Tuesday, December 22, 2009 6:25 pm | Updated: 1:42 am, Sat Oct 8, 2011.

A pet may be man's best friend. But that doesn't entitle the owner to sue for emotional distress or loss of companionship as part of a claim against a veterinarian for malpractice, the Arizona Court of Appeals ruled Tuesday.

In its unanimous decision, the judges rejected the claim of David Kaufman that he is entitled to be compensated following the death of his scarlet macaw above and beyond the actual cash value of the bird.

Judge Patricia Norris said nothing in Arizona law permits such an award. And Norris said she and her colleagues were not going to decide on their own to expand that law.

More to the point, Norris said to rule otherwise would actually give broader rights to pet owners to sue for emotional loss than to parents who lose a child.

Stephanie Nichols-Young, president of the Animal Defense League of Arizona, whose organization filed legal briefs on behalf of Kaufman, said Tuesday's ruling was based on a centuries-old understanding of animals. That includes a belief that humans are unique as shown by things like our use of tools.

"Now we understand what a lot of people who own dogs and cats already know, that animals are a lot deeper than we used to think," she said.

But the Arizona Veterinary Medical Association, which hired its own legal help to intercede, takes the position while there is a special bond between humans and pets, the law should not permit recovery for noneconomic damages. In a position paper furnished Tuesday to Capitol Media Services, the group said such lawsuits will drive up costs of veterinary services and, in doing so, put the price beyond the reach of what some owners are willing to pay, "harming animals in the process."

This case involves Salty, purchased by Kaufman in late 1996. According to Norris, the bird was, by all accounts, intelligent, affectionate and playful.

Kaufman said he considered Salty his companion who accompanied him to work, engaged with customers at Kaufman's business and participated in family holidays.

In 2005, a bird breeder diagnosed Salty with cloacal prolapse, which the court described as a condition where an internal sac, used primarily for storing waste, is forced out of the body.

William Langhofer, a Scottsdale veterinarian, performed two operations that cured the condition but left her with a different problem. The bird never fully recovered from the second surgery and ultimately died the following month.

Kaufman then sued Langhofer and the Scottsdale Veterinary Clinic. Aside from claims of medical negligence and destruction of personal property, he also asked for various "special damages," including for emotional pain and suffering and for loss of companionship.

But a trial judge told jurors they could consider only the value of the bird. Ultimately the jury, after hearing the bird had an undiagnosed heart condition that may have made it without financial value, awarded nothing to Kaufman.

In reviewing the case on appeal, Norris said most states classify pets simply as personal property. And she said they limit recovery in a wrongful death case to the value of the animal.

Norris said there are situations where someone can sue for emotional distress because of the loss or destruction of property.

For example, the judge noted that courts have allowed such awards in the case where fertilized human eggs that had been given to someone else for storage had been destroyed. That, she said, was different.

"We acknowledge the emotional distress Kaufman suffered over Salty's death," Norris wrote for the court. "But Dr. Langhofer's negligence did not directly harm Kaufman in that it did not affect or burden a personal right or interest belonging to him."

Norris also pointed out that, at least in Arizona, someone who sues for negligent infliction of emotional distress must witness an injury to a closely related person, suffer mental anguish that manifests in physical injury, and be within the zone of danger. And the judge noted these claims are limited to spouses, parents and children.

"We recognize the reality of a pet owner's grief when his or her pet is negligently injured or killed," Norris wrote. But she said it would not be reasonable to allow claims for emotional damages in these cases when they are off-limits to others who seek to sue for the loss of a close friend, grandparent, grandchild, aunts, uncles, nieces and nephews.

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