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Emotional Distress Damages Upon Death of a Pet

I see a lot of people who are really upset. Something terrible has happened, or someone has done something terrible to them, or some terrible situation has trapped them. Whatever the cause, the same question invariably comes up: "Can't I sue for my emotional distress?" My answer must be: "It's not that simple."

There is a large gap between the popular view of emotional distress damages and what the law actually allows. A recent case illustrates and then explains the difference.

In McMahon v. Craig (July 31, 2009) a dog owner brought her show dog, a purebred Maltese, to a veterinarian for treatment. The dog suffered from paralysis in the throat. The owner explained to the veterinarian her strong bond with the dog and asked the veterinarian to do whatever possible to cure the dog, regardless of the expense. The dog underwent surgery. However, before the surgery, an assistant at the clinic had given the dog water mixed with baby food - a serious mistake. Only water should have been given. The dog wound up with food in her lungs and later died from aspiration pneumonia.

The owner sued the veterinarian. The owner alleged a number of different claims, including intentional infliction of emotional distress. While acknowledging that the owner had understandably suffered from the death of her beloved pet, the Court of Appeal rejected any claim for emotional distress damages.

In terms of legal policy, the Court was generally reluctant to make available to pet owners damages for emotional distress because of the possibly huge economic consequences and the difficulty of defining the scope of liability. After all, the real victim was the dog. The owner was not present at the surgery and obviously was not the patient.

Still, the Court was very precise in delineating the limits of emotional distress damages under existing law. The Court described three situations in which such damages could be recovered: First, "bystander" situations in which the plaintiff actually witnesses injury to a closely related person and, as a result, suffers emotional distress beyond what the plaintiff would have experienced had the victim been a stranger. Second, the "direct victim" situation in which the plaintiff is the victim, a defendant owes the plaintiff a duty of care, the defendant does not perform that duty, and the plaintiff suffers both an injury and emotional distress. Third, the situation in which the defendant engages in extreme and outrageous conduct with the intent of causing emotional distress, and the plaintiff does suffer such distress as a result of that conduct. Finally, in all the three situations, the plaintiff's emotional distress must generate a real injury, psychological or physical, as opposed to a mere excitation which passes without consequence. In plain terms, unless as a consequence the plaintiff seeks medical assistance, there is no solid basis for emotional distress damages.

Many people do not understand these criteria, or at least are in no mood to understand them, when they first seek a lawyer's help. It is not easy to explain that the law does not provide compensation for every perceived offense. The legal system does not engage in teaching good manners. Nor does it guarantee that everyone will be treated civilly.

For example, the criterion for "extreme and outrageous conduct" is actually an objective standard. If an average citizen living in a civilized community would not resent the conduct in question, the criterion is not met. In addition, if the conduct is not directed specifically at the plaintiff, as opposed to directed at someone else or at society at large, then that criterion is not met.

Ironically, a California statute states, as a maxim of jurisprudence, that "for every wrong there is a remedy." The real business of the legislature and the courts is to define what a "wrong" consists of to begin with. Some acts are, but others are not. The categories do change over time, sometimes suddenly and sometimes gradually. But we in the legal profession never know the how and the when in advance.

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