Thursday, March 19, 2015

Damages for Emotional Distress Awarded for Injury to Pet

During the morning hours of January 9, 2010, Frederick County Sheriff’s Deputies responded to the home of Roger and Sandra Jenkins to serve an arrest warrant upon their son.  Upon hearing knocking on his door, Roger Jenkins answered and, in an effort to cooperate with the Deputies, indicated to officers that he would move the barking family dogs from the house to a kennel outside.  As Roger Jenkins was walking out to the kennel, he left the family’s Labrador Retriever, Brandi, unleashed.  Brandi, who was about 6 to 8 feet ahead of Jenkins, rounded a corner ahead of her owner.  As Jenkins continued to walk, he heard a gunshot and shortly thereafter realized that Brandi had been shot and wounded by one of the deputies.  Rogers and his wife attended to Brandi and were able to take her to the vet.  She was treated there and rejoined her family the next day.  Ultimately the Jenkins’ brought suit against the sheriff’s deputies alleging constitutional and common law claims for the wounding of their dog and entry into their home.  At trial, Mr. Jenkins testified in detail about tending to the dog’s injuries and the effects of the incident on his family. 

Ultimately, the jury awarded $10,000.00 in economic damages and $100,000.00 in non-economic damages to each Roger and Sandra Jenkins, for the shooting of Brandi.  The defendant deputies promptly appealed the verdict and award.  One basis for the appeal was the existence of a statutory cap limiting the recovery for damages to a pet.  Per Maryland statute, recovery is available for the “reasonable and necessary cost of veterinary care” to a pet that is injured or killed tortiously; however, it is capped at $7,500.00.   Md. Code Ann., Courts and Jud. Proc § 11-110.  At the appellate level, the Court of Special Appeals, after a lengthy analysis of statutory interpretation and history, determined that the statute was created solely to specifically address a cap to economic damages.  That is, the statute’s language was applicable only to the payment of vet bills incurred, and to compensate owners for the fair market value of their pet.  Based on the strict application of the statute, the Court reduced the total $20,000.00 economic damage award to $7,500.00. 
Additionally, and most importantly, the Court held that the statute does not limit other types of recovery outside of actual economic damage.  Specifically, the Court stated:

“But nothing about CJ § 11–110 vitiated their existing right to recover, on appropriate proof, whatever non-pet damages they could prove, including their non-economic damages, for the Deputy's grossly negligent violation of their constitutional rights. Put another way, if the Deputy's bullet had missed Brandi, entered the house, and hit an expensive china vase sitting on the mantle, there would be no doubt that the Jenkinses could recover the economic and noneconomic damages they could prove. Because pets are property, CJ § 11–110 defines their property value, but it cannot rationally be read to cabin a grossly negligent official's total liability based on the fortuity that he shot a pet rather than something inanimate.”
Brooks v. Jenkins, 220 Md. App. 444, 470-71, 104 A.3d 899, 914 (2014).

In considering whether or not the amount of the non-economic award was appropriate, the Court indicated it would be improper, in light of the extensive evidence presented that allowed the jury to conclude that the deputy was grossly negligent, to reduce the amount awarded by the jury for pain and suffering of the Jenkinses.  In discussing the decision to uphold the jury’s award, the Court indicated that the analysis revolved around suffering to the Jenkins rather than suffering to Brandi.  During the trial, there was video showing both Mr. and Mrs. Jenkins very upset, and the latter crying.  Mr. Jenkins testified that his wife was hysterical, and there was testimony that Brandi needed near constant attention so that her staples and drainage tube were not disturbed.  Additionally, bandages on Brandi’s shoulder had to be changed every 3 to 4 hours for about 10 days.  Further, the Jenkins family became nervous when anyone came to their door, and Mrs. Jenkins began to suffer from more frequent panic attacks.  Finally, Mrs. Jenkins testified about her fear at the time of the shooting, indicating that she did not know if the deputy would next shoot her husband.  Based on these factors, the Court found that the jury award of $100,000.00 to each Mr. and Mrs. Jenkins for their pain and suffering as a result of the shooting of their dog was reasonable, and declined to reduce the amount.

The Brooks decision marks the first time the Court has, in a reported decision, stated specifically that the statutory limit on pet recovery applies only to veterinary care costs and lost economic value, thereby leaving open the possibility to recover under a separate claim based upon the emotional distress of pet owners when their pets are injured or killed by grossly negligent activity.  While many Animal Rights Groups have applauded the decision because it recognizes the important emotional impact pets have on our everyday lives, the Maryland Veterinary Medical Association, and others, expressed concern that allowing additional recovery would increase veterinary liability exposure and ultimately veterinary costs. See Steve Lash, Emotional Distress Damages Upheld for injury to Dog, The Daily Record, Dec. 18, 2014, at 10A. 

The implications of this case are not yet completely clear.  Because the Court has only indicated that additional damages are appropriate where there is gross negligence, there should be no rush to conclude that all negligence actions involving pets will lead to reaching outside of the statutory cap.  However, adjusters, homeowners and attorneys should all be aware that the case seems to signal the beginning of a movement that will lead toward increased potential recovery based on injuries to beloved pets.

Contributed by Lauren A. Seldomridge

Monday, March 9, 2015

What Duty Does a Property Owner Owe to a Child on the Property?

In Lasley v. Hylton, 764 S.E.2d 88 (Va. 2014), The Supreme Court of Virginia examined the duty that a property owner owes a child guest when the parent of that child is also present. The Court concluded that a property owner cannot be liable for a child’s injuries sustained from an open and obvious danger when the parent is present, and the property owner assumed no special duty of supervision.

In Lasley, an eight (8) year old minor Plaintiff was injured while operating an all-terrain vehicle (“ATV”) at a cookout on Defendant’s property. The father of the minor Plaintiff was also at the cookout, and allowed the minor Plaintiff to ride the ATV despite a warning on the ATV stating that the ATV should not be operated by anyone under the age of twelve (12). Shortly after beginning to operate the ATV, the minor Plaintiff lost control, tipped the ATV, and was severely injured, including, but not limited to, a fractured shoulder. The minor Plaintiff, through his mother, sued Defendant for his negligence in allowing the minor Plaintiff to operate the ATV without advising or heeding to the warnings on the ATV.

Defendant argued at trial that he relied on the child’s parent’s judgment in determining whether the child was capable of driving the ATV. Defendant knew the child was eight (8) years old, but was never approached to supervise the minor Plaintiff. Plaintiff argued that Defendant failed to express the age warnings on the ATV to the child or the child’s father despite knowledge that the child was under twelve (12).

Ultimately, the Court concluded that the risks of riding an ATV were open and obvious to the child’s father; however, the father still permitted the child to ride the ATV. Crucial in this case was the Court’s conclusion that the Defendant fulfilled his duty to exercise reasonable care when he ensured that the child was under the supervision of the child’s own father, and that the child rode the ATV with his father’s permission. Essentially the Court held that a host will not breach his duty of reasonable care by allowing a child to participate in an activity with open and obvious risks when the child’s parent granted permission for the child to partake in that particular activity. Thus, judgment in favor of the Defendant was granted and upheld.

                While the holding in Lasley is not binding in Maryland, the Supreme Court of Virginia’s reasoning is supported by applicable Maryland premises liability law. Generally, there is no duty on the part of a property owner to protect an invitee from an open and obvious condition. The Lasley holding enforced a similar limited duty in relation to a minor child’s claims when the incident occurred under the dual supervision of the parent and the property owner.