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Hayes v. Lisbon Road Animal Hospital

Superior Court of Maine, Androscoggin

December 19, 2014



MaryGay Kennedy, Justice

Lindsy Hayes has filed a seven-count Complaint against Lisbon Road Animal Hospital ("Lisbon Road") following the protracted illness and death of her collie, Murphy. She attributes Murphy's death to Lisbon Road's negligence. Arguing that the following counts fail to state a claim upon which relief can be granted, Lisbon Road has moved pursuant to Maine Rules of Civil Procedure 12(b)(6) and 12(c) to dismiss Count IV for negligent infliction of emotional distress and Count VII for loss of companionship and intrinsic value. Ms. Hayes has opposed Lisbon Road's Motion for Judgment on the Pleadings. The court has reviewed the parties' filings and held a hearing on the Motion on August 7, 2014.

I. Factual Background

The following facts are gathered from the Complaint unless otherwise noted. In 2012, Ms. Hayes was the owner of a collie named Murphy. On July 20, 2012, Ms. Hayes took Murphy to Lisbon Road Animal Hospital in Lewiston to be evaluated for a skin condition. Murphy was prescribed a shampoo to treat seborrhea. Following that visit, Ms. Hayes continued to take Murphy to Lisbon Road, because Murphy's skin condition failed to improve and Murphy continuously lost weight. On November 16, 2012, Murphy was prescribed an antihistamine, Carprofen, and Ms. Hayes was advised to continue to use the shampoo and fish oil. Ms. Hayes brought Murphy to Lisbon Road on January 18, 2013, because Murphy was excessively scratching and chewing his hair out. While no physical examination of Murphy was performed, Murphy was prescribed Vetalog, Prednisone, and skin wipes.

When Ms. Hayes contacted Lisbon Road on January 31, 2013 and asked to recommence the Carprofen prescription, she was instructed to wait 2-3 days. Later, on February 11, 2013, Ms. Hayes called Lisbon Road in order to discuss medications. She reported that Murphy was constantly scratching, losing hair, and banging the floors at night. Lisbon Road prescribed an anti-itch medication and an increase in Murphy's Benadryl and fatty acids. When Ms. Hayes called again on February 15, Lisbon Road prescribed a 10-day supply of steroids and Carprofen.

The next day, Ms. Hayes informed Lisbon Road that Murphy was drinking and urinating excessively. Lisbon Road tested a urine sample, which showed an increase in protein and bacteria, but Lisbon Road informed Ms. Hayes that the test results were within the normal limits.

A CBC test was performed on February 20, 2013. It revealed an increase in Murphy's liver enzymes and white blood cell count. Lisbon Road decided that Murphy's medications caused the elevated results. At the time, Lisbon Road observed that Murphy appeared "emaciated", but Lisbon Road failed to perform a physical exam. Ms. Hayes called Lisbon Road on March 5, 2013, requesting a skin scrape. She was informed that Dr. Clark would return her call in the morning, but Lisbon Road never returned her call.

On March 7, 2013, Ms. Hayes brought Murphy into Lisbon Road and requested a skin scrape. Lisbon Road was unwilling to perform the skin scrape, and instead provided Revolution for Murphy and her other dogs. The Revolution box warns that it is not to be used on "sick, debilitated or underweight animals." (Pl's Compl. ¶ 19.) Between February 11, 2012 and February 20, 2013, Murphy had gone from 103 lbs. to 58.2 lbs.

Eventually, on March 11, 2013, Ms. Hayes brought Murphy to Central Maine Veterinary Hospital ("CMVH"), where they performed a skin scrape and determined that Murphy had mites. As a result, CMVH prescribed a treatment for Ms. Hayes and all of her dogs and cats. A CBC was administered, and it showed that Murphy's white blood cells and liver enzymes were high. The physical exam showed that Murphy had substantial muscle loss and a painful and tense abdomen.

Murphy's health continued to quickly and notably decline, and on March 21, 2013, Murphy was euthanized at CMVH. Following Murphy's death, Lisbon Road sent a reminder notice to Ms. Hayes for shots for her pets, including Murphy.

II. Standard

A motion for judgment on the pleadings pursuant to MR. Civ. P. 12(c) tests the legal sufficiency of the Complaint. See Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988). A "motion for judgment on the pleadings is nothing more than a motion under M.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted." Id.

When considering a motion to dismiss under Rule 12(b)(6) the Law Court has held that:

[w]e view the material allegation of the complaint as admitted and examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory. A dismissal is appropriate only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim. The legal sufficiency of a complaint is a question of law.'
Thompson v. Dep't of Inland Fisheries & Wildlife, 2002 ME 78, ¶ 4, 796 A.2d 674 (quoting New Orleans Tanker Corp. v. Dep't of Transp., 1999 ME 67, ¶3, 728 A.2d 673).

Claims for relief must "contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief which the pleader seeks." M.R. Civ. P. 8(a). The rules require that "[e]ach averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." M.R. Civ. P. 8(e)(1). The Law Court explained that "[t]he conception underlying Rule 8 M.R.C.P. is that the function of the complaint is to give fair notice of the claim, and this may be '. . . sufficiently performed by a rather generalized statement.'" Casco Bank & Trust Co. v. Rush, 348 A.2d 239, 241 (Me. 1975) (quoting 1 F.McK.& W., Me.Civ.Pr.2d, pp. 192, 193).

The Supreme Court has held, however, that a complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

III. Discussion

There is limited case law in Maine that pertains to the status of household pets; and, what there is dates back to the 1800's and early 1900's . See Chapman v. Decrow, 93 Me. 378, 45 A. 295, 298 (1899) ("By the common law, a dog is property, for an injury to which an action will lie.") While the cases provide precedent for the court to find and conclude that a dog is property, many pet owners, including Ms. Hayes, do not share that view. According to the ASPCA, Ms. Hayes is just one of an estimated 47% of all households in the United States that collectively own approximately 83 million dogs. It is certainly understandable that reducing the status of a beloved pet to "property, " does not and would not sit well with many of those pet owners.

That said, the question presented in this instance is whether it's possible in Maine to sustain claims for negligent infliction of emotional distress and loss of companionship related to the negligent care or injury of a dog. Lisbon Road has argued that it is not possible, as emotional distress damages are not available for the negligent loss of a dog, since a dog is considered property. Lisbon Road contends that since dogs are considered property, a plaintiff can only collect compensatory damages limited to the fair market value of that property.

To calculate damages to property, the court usually considers: "(1) the difference in value of the property before and after the actionable injury, or 2) the cost of repairing or restoring the property to its condition before the injury." Horton & McGehee, Maine Civil Remedies § 4-3(c)(7) at 67-68 (4th ed. 2004). See Watson v. Proprietors of Lisbon Bridge, (where a horse was injured because of a defect in the way adjacent to the bridge, the Law Court found that the traveler was entitled to compensation for money spent attempting to cure the horse as well as the value of the horse. 14 Me. 201, 204 (1837) "The plaintiff is entitled to a fair indemnity for his loss. He has lost the value of his horse, and also what he has expended in endeavoring to cure him." Id.

In this case, Lisbon Road argues that since Murphy has died, the only factor to consider is Murphy's value when the allegedly negligent acts took place.

Lisbon Road has cited to out-of-state cases to show that the majority of jurisdictions do not allow emotional distress damages when an animal dies as a result of negligence. In Carbasho v. Musulin, which is distinguishable from this case as the Supreme Court of Appeals of West Virginia relied on state statutes based on the common law, the court cited to a string of out-of-state decisions and determined that "Our statutory law, as well as, this Court's decision in Julian, clearly establish that damages for sentimental value, mental suffering, and emotional distress are not recoverable for the death of a pet dog. Not only is that the law of this State, but it is also the general rule in a majority of jurisdictions." 618 S.E.2d 368, 371 (W.Va. 2005)(citing Julian v. DeVincent, 184 S.E.2d 535, 536 (W.Va. 1971)). In Nichols v. Sukaro Kennels, the Iowa Supreme Court affirmed a decision limiting damages for a poodle that was grievously injured to the plaintiff's medical expenses, and explained that it was following the majority of jurisdictions and would not allow mental distress damages for the injury or death of a pet. 555 N.W.2d 689, 691 (Iowa 1996). In Koester v. VCA Animal Hosp., the court found that emotional distress damages are not available for the loss of a dog, since emotional distress damages are not available for property damage, and the court stated that legislative action would be the proper course to follow to create a cause of action for loss of companionship for when a veterinarian negligently harms a pet. 624 N.W.2d 209, 211 (Mich. Ct. App. 2000).

Comment m to section 47 of The Restatement (Third) of Torts describes one of the public policy reasons why courts may choose to bar recovery for emotional distress related to negligent harm to pets. Restatement (Third) of Torts § 47 cmt. m (2012). The comment provides in pertinent part:

While pets are often quite different from other chattels in terms of emotional attachment, an actor who negligently injures another's pet is not liable for emotional harm suffered by the pet's owner. This rule against liability for emotional harm secondary to injury to a pet limits the liability of veterinarians in the event of malpractice and serves to make veterinary services more readily available for pets. Although harm to pets (and chattels with sentimental value) can cause real and serious emotional harm in some cases, lines-arbitrary at times-that limit recovery for emotional harm are necessary.


As Ms. Hayes has argued, however, some courts in other jurisdictions have allowed emotional distress claims related to the injury or loss of a pet. See McAdams v. Faulk, 2002 WL 700956, *5 (Ark. Ct. App. Apr. 24, 2002) (allowing a negligence claim against a veterinarian involving a claim of mental suffering to proceed at the motion to dismiss stage); see also Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37, 38 (Fla. Dist. Ct. App. 1978) (finding in an action involving gross negligence "that the court did not commit err [sic] by including for consideration of the jury the element of the mental pain and suffering of the plaintiff-owners of the dog.") In Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1071 (Haw. 1981), the Supreme Court of Hawaii determined that emotional distress damages were permissible when the defendant negligently caused the death of the plaintiffs' dog. Hawaii, however, has "departed from the traditional standard and held that serious mental harm can be inflicted when a person endures negligently inflicted property damage." 632 P.2d 1066, 1068 (Haw. 1981).

In Golt v. Caffrey, the Superior Court (Oxford County, Warren J.) examined the issue of whether the plaintiff should be able to recover for emotional distress against a veterinarian based on the deaths of her three dogs. OXFSC-CV-96-09 (Me. Super. Ct., Oxf. Cty., Mar. 17, 1999). The defendant in that case made the argument that dogs are considered property under Maine law, and Maine has never allowed for an emotional distress claim based upon destruction of property. Id. at 2. The court found that "this argument does not necessarily account for the special role that dogs may play in the owner's life and the suffering that an owner may endure upon the death of a beloved animal companion." Id. The court, however, agreed with the defendant's second argument that pet owners "should not receive more favorable treatment in terms of the recovery of damages for emotional distress than a parent would receive upon the death of a child." Id. After analyzing the facts of the plaintiff's case in light of the Law Court's decisions in Cameron v. Pepin, 610 A.2d 279, 284 (Me. 1992) and Nelson v. Flanagan, 677 A.2d 545 (Me. 1996), and determining that the plaintiff would not have been able to recover on an emotional distress claim based on bystander liability if her dogs were children, the court granted the defendant's motion in limine to exclude evidence of emotional distress, which thereby resulted in the dismissal of the plaintiff's negligent infliction of emotional distress claim. Id. at 3-5.

While it may be an exercise in futility, given the societal changes that have transpired in pet ownership since the late 1800s and early 1900s, it is worthwhile to undertake a similar analysis in this case

a. Negligent infliction of emotional distress

In Curtis v. Porter, the law court noted that liability for claims of negligent infliction of emotional distress is "much more limited" than for claims of intentional infliction of emotional distress. 2001 ME 158, ¶17, 784 A.2d 18. To prove negligent infliction of emotional distress a plaintiff must demonstrate: "(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff was harmed; and (4) the breach caused the plaintiff's harm." Id. ¶ 18. The Law Court noted, however, that it is difficult for plaintiffs to establish duty, since "there is no . . . general duty to avoid negligently causing emotional harm to others." Id. The Law Court has, however,

recognized a duty to act reasonably to avoid emotional harm to others in very limited circumstances: first, in claims commonly referred to as bystander liability actions; and second, in circumstances in which a special relationship exists between the actor and the person emotionally harmed. We have also held that a claim for negligent infliction of emotional distress may lie when the wrongdoer has committed another tort. However, as we have recently held, when the separate tort at issue allows a plaintiff to recover for emotional suffering, the claim for negligent infliction of emotional distress is usually subsumed in any award entered on the separate tort.

Id. ¶19. To prevail on a negligent infliction of emotional distress claim, a plaintiff must also show "proof of severe emotional distress." Id. ¶ 20.

Lisbon Road argues that Ms. Hayes also cannot succeed on her negligent infliction of emotional distress claim because Ms. Hayes cannot show bystander liability or a special relationship that would allow her to recover. Ms. Hayes has claimed that she should be able to proceed because she has alleged a fiduciary relationship claim and a negligence claim.

Ms. Hayes would not be able to recover under a bystander liability theory even if the court treats Murphy like a person in its analysis. In Culbert v. Sampson's Super market, Inc., 444 A.2d 433, 438 (Me. 1982.), the court held that "a bystander may recover damages for serious mental distress foreseeably resulting from witnessing another person harmed by the tortfeasor's negligent act." The court noted that such distress "may be deemed foreseeable when the plaintiff bystander was present at the scene of the accident, suffered mental distress as a result of observing the accident and ensuing danger to the victim, and was closely related to the victim." Id. Furthermore, in Cameron, the court found that liability for indirect victims should be limited based upon policy considerations. 610 A.2d at 283-84 (Me. 1992); see also Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 13, 711 A.2d 842. In Nelson, the court emphasized that the plaintiff is required to have "'suffered serious mental distress as a result of contemporaneously perceiving the accident.'" 677 A.2d 545, 548 (Me. 1996)(quoting Cameron, 610 A.2d at 284-85 (Me. 1992)).

Even if the court were to view Murphy as closely related to the victim, the court cannot find that Ms. Hayes '"suffered serious mental distress as a result of contemporaneously perceiving the accident.'" Id. Ms. Hayes has not claimed that she was present and "'contemporaneously perceive[ed]"' an injury to Murphy that is the basis for her claim. Id.

In addition, the court finds that Ms. Hayes would not be able to succeed on her negligent infliction claim, as she was not the direct victim. The court notes that the Law Court has previously recognized certain medical relationships as creating emotional duties. In Bryan R. v. Watchtower Bible & Tract Soc. of New York, Inc., 1999 ME 144, ¶31, 738 A.2d 839 the court summarized three cases involving special relationships:

See, e.g., Bolton v. Caine, 584 A.2d 615, 618 (Me.1990) (holding that a physician-patient relationship gives rise to a duty to avoid emotional harm from failure to provide critical information to patient); Gammon v. Osteopathic Hosp. of Me., 534 A.2d 1282, 1285 (Me.1987) (holding that a hospital's relationship to the family of deceased gives rise to a duty to avoid emotional harm from handling of remains); Rowe v. Bennett, 514 A.2d 802, 806-07 (Me.1986) (holding that the unique nature of psychotherapist-patient relationship gives rise to a duty of care to the patient).

While this case involves a medical practitioner, it is distinguishable because the direct victim in this instance is Murphy. In a footnote, Ms. Hayes has asserted that Ms.

Hayes is the direct victim, since Murphy does not have standing to sue. The court disagrees and finds that Murphy was the direct victim in this instance. See Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 6, 711 A.2d 842 ("A plaintiff is a direct victim if she was the object of the defendant's negligent conduct.") In Golt, the court held that while the plaintiff in that case "argue[d] forcefully" that she was the direct victim "[s]ince all of the dogs were her property and since the dogs cannot sue in their own right, the only legally cognizable injury is to [the plaintiff] . .., " the court still could not allow a rule permitting the plaintiff to prevail when the parents in the Cameron case were unable to do so. OXFSC-CV-96-09 at 5 (citing Cameron 610 A.2d at 280 (Me. 1992)). In Michaud v. Great N. Nekoosa Cory., the court clarified that "The 'direct victim' claiming negligent infliction of emotional distress may recover when the defendant's negligence was directed at the victim; namely, that the defendant owed the victim an independent duty of care and that the defendant should have foreseen that mental distress would result from his negligence." 1998 ME 213, ¶16, 715 A.2d 955. The court then stated that an indirect victim can only recover under a bystander liability theory. Id.

Lastly, the court finds that this is an instance where larger policy implications, as described in the Restatement, weigh against Ms. Hayes' negligent infliction of emotional distress claim, even in light of her separate fiduciary duty and negligence claims. See Cameron, 610 A.2d at 282 (Me. 1992); Restatement (Third) of Torts § 47 cmt. m.

b. Loss of companionship and intrinsic value

Lisbon Road contends that Ms. Hayes is attempting to create a cause of action for Murphy analogous to a wrongful death action for a person. See 18-A M.R.S.A. § 2-804(b) (permitting the award of damages "for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim . . . .") It is clear from the wording of the wrongful deaths statute that it pertains to "the death of a person". § 2-804(a)-(b). Under the Probate Code, a "person" is defined as "an individual, a corporation, an organization, or other legal entity." § 1-201(29). A dog fails to meet the definition.

In Strickland v. Medlen, where a shelter employee euthanized an escaped dog that was supposed to be held for its owner, the Texas Supreme Court explained why it was not permitting a loss of companionship claim or emotionally based damages:

Loss of companionship, the gravamen of the Medlens' claim, is fundamentally a form of personal-injury damage, not property damage. It is a component of loss of consortium, including the loss of love, affection, protection, emotional support, services, companionship, care, and society. Loss-of-consortium damages are available only for a few especially close family relationships, and to allow them in lost pet cases would be inconsistent with these limitations. Therefore, like courts in the overwhelming majority of other states, the Restatement of the Law of Torts, and the other Texas courts of appeals that have considered this question, we reject emotion-based liability and prohibit recovery for loss of the human-animal bond.

Strickland v. Medlen, 397 S.W.3d 184, 191-92 (Tex. 2013) (citations and quotations omitted).

The court finds that Ms. Hayes' loss of companionship and intrinsic value claim fails to state a claim upon which relief can be granted. She cannot bring a wrongful death action for Murphy.

The court notes that it is making the decision to dismiss these two claims at an early stage. While the court could have waited to dispose of these claims until the summary judgment stage, the court is able to find at this juncture that both of the claims at issue fail to state legally cognizable claims. Waiting to make a determination on these two claims, which the court finds are unsustainable, would be simply kicking the proverbial can down the road.

Accordingly, the court ORDERS that Defendant's Motion for Judgment on the Pleadings for Counts IV and VII is GRANTED and Counts IV and VII are dismissed.

The clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).

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