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