May 11, 2009
Pets As Property, Not Family
Claims brought by pet owners after two cats who were being treated for hypertension died shortly after taking prescribed medication were dismissed by the Vermont Supreme Court:
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs, the owners of two cats who allegedly died from treatment and medication supplied by defendants, appeal from the superior court’s grant of partial judgment on the pleadings for defendants. The trial court’s order dismissed plaintiffs’ claims for loss of companionship and society and severe emotional distress, as well as their complaint for negligent infliction of emotional distress. The first two counts are for noneconomic damages claimed by plaintiffs as part of their causes of action for breach of implied warranty of merchantability, breach of express warranty of merchantability, breach of implied warranty of merchantability for a particular purpose, negligence and wantonness, breach of the Vermont Consumer Fraud Act, and breach of contract. Initially, plaintiffs received the superior court’s permission to take an interlocutory appeal from the order, but defendants opposed the appeal, and this Court dismissed it as improvidently granted. Plaintiffs then voluntarily dismissed their remaining claims for economic damages so that they could proceed with a direct appeal of the superior court’s partial judgment on the pleadings.
The court rejected the argument that pets should be treated as family members rather than property. The court noted that wrongful death claims do not extend to all close family members under Vermont law. As to claims of negligent infliction of emotional distress:
...plaintiffs cannot recover for NIED [negligent infliction of emotional distress] because they were never the objects of the allegedly negligent acts of the veterinarians and pharmacy, and thus were neither in physical danger themselves, nor had any reason to fear for their own physical well-being. To make a prima facie case for NIED, plaintiffs must first make a “threshold showing that [they] or someone close to [them] faced physical peril.” We will assume, without deciding, that the pets qualified as “someone” close to plaintiffs who faced physical peril by virtue of defendants’ negligence. After this threshold showing, where plaintiffs did not themselves suffer an actual “physical impact from an external force,” the remaining elements of NIED require that: (1) plaintiffs must have been within the “zone of danger” of the acts imperiling their cats; (2) plaintiffs were subjected to “a reasonable fear of immediate personal injury;” and (3) as a result of such imminent danger to their persons, plaintiffs “suffered substantial bodily injury or illness.” Even if plaintiffs in this case can show that they suffered an emotional injury with physical manifestations as a result of their cats’ deaths, they cannot establish either of the first two elements necessary for NIED. (citations omitted)
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