Lawsuit options limited after pet's death 

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Harry T. asks:

Q: "I live in the Bay Area on an acre of land. Every evening from about 6 p.m. to sunset, I go outside to take care of daily chores and let my dogs run. We are always back inside the house by sunset. One day, about 15-20 minutes before sunset as we were walking back to the house, the nearby county fair fireworks went off.

"One of my dogs was frightened and bolted across the field, onto the road, and was killed. I watched helplessly as she died.

"The trauma of this event and my grief over the loss of my companion have been overwhelming to the point of being unable to focus on my work, perform my chores or drive past the site of the accident.

"I have withdrawn from friends and family and spend most of my time feeling miserable.

"I have enrolled in a six-week intensive therapy program to help me restore my shattered world. Why did they start shooting off fireworks before the sky was dark?

"I am furious and wish to sue whoever is responsible for her death."

A: My deepest sympathies for your loss, Harry. Obviously your relationship was such that your dog was an integral part of your family, just as a child might be. It sounds like you are getting help, which is the first step.

To bring a legal action there must be what is referred to as a "cause of action," a recognized claim established either by statute or through the development of common law (court decision). California recognizes a cause of action for death of both domesticated animals (dogs, cats, birds, etc.) and farm animals. However, animals are treated differently than humans: they're considered personal property like a damaged car.

The law pays for their damage (medical treatment) and value (cost of a replacement pet).

People have sought to apply Civil Code Section 3355 to advance their claims that their pets have a "special value" far greater than the mere cost of a pet.

Section 3355 states, "Where certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer."

"Peculiar value" refers to a property's unique economic value, not its sentimental or emotional value. In an early case considering an animal's peculiar value, the plaintiff sought damages for the death of his dog caused by the defendant's negligence.

On the amount of damages sought, the court observed the elements of the dog's peculiar value to include its pedigree, reputation, age, health and ability to win dog shows.

Thus, the court clearly considered peculiar value to refer to special characteristics, which increase the animal's monetary value, not its abstract value as a beloved companion to its owner (McMahon v. Craig [2009] 176 Cal.App.4th 1502, 1519-1520).

The McMahon court, somewhat cold-heartedly, ruled that, "There is no doubt that some pet owners have become so attached to their family pets that the animals are considered members of the family.

"This is particularly true of owners of domesticated dogs who have been repeatedly referred to as 'Man's Best Friend' and a faithful companion.

"Although we live in a particularly litigious society, the court is not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet.

"Such an expansion of the law would place an unnecessary burden on the ever-burgeoning caseloads of the court in resolving serious tort claims for injuries to individuals."

So Harry, my deepest sympathies, but even if you were to able to prove that the county was negligent, you would be just crushed again when society, through the courts, would value your pet as if it were an old car.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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