Kaufman v. Langhofer et al. (CA1 12/22/09)

Salty was an “intelligent, affectionate, and playful companion” — the love of Kaufman’s life, by the sound of it. Salty died allegedly because of Dr. Langhofer’s negligence, so Kaufman sued Langhofer and his clinic. The complication is that Salty was a pet bird.

Kaufman sued for the vet bill and bird’s value. He also sued for pain, suffering, loss of the bird’s companionship and society, and other emotional-loss claims. The trial court dismissed the emotional-loss claims and instructed the jury that damages were limited to the bird’s fair market value. The case was actually tried to a jury, which allocated some fault to the vet but most to Kaufman and awarded zero damages (Kaufman’s own expert testified that the bird had no market value because of a congenital heart problem).  Kaufman appealed, arguing that he should have gotten damages for emotional distress.

The opinion first takes about six pages to state hornbook law: pets are personal property, if negligently destroyed or damaged you get their fair market value or the reduction thereof. The court distinguished a grab-bag of cases (e.g., bad faith, landlord/tenant) cited by the plaintiff’s amici (PETA and other animal groups) that allowed emotional distress when various property rights were at issue; in those cases “the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff.” Here, the vet treated the bird, not its owner.

Kaufman next argued that even if the bird had no market value he can recover the special value it had to him. This is another hornbook theory but not one that his lawyer remembered to preserve in the trial court. The Court of Appeals pointed out, though, that “special value” for pets generally doesn’t  include sentimental value, apparently to signal that it wouldn’t have let Kaufman get emotional damages anyway.

In a footnote, the opinion then declines to address an issue raised by the amici but not by Kaufman. According to one of those rules that courts rigorously follow whenever they want to, appellate courts decide cases based “solely on issues raised by the parties themselves.”

Finally, Kaufman argued that Arizona law should be changed to allow him to recover emotional damages because “71% of dog owners and 64% of cat owners consider their pets like a child or family member.” (We know this to be true because the amici quoted a survey that said so. This is the sort of thing that passes for evidence once amici get involved; they used to call them “Brandeis briefs” when lawyers were still educated enough to know who Louis Brandeis was. Love for pets is probably subject to judicial notice but details about cats and dogs is a bit much.) In any event, the opinion pointed out that most courts haven’t bought that argument and that if Arizona were to do so then damages for the death of a pet would be broader than for the death of a person (since they would not be restricted by the Wrongful Death statute or the rules on bystander liability).

But at the end the court throws the amici a bone by mentioning that damages for a pet death might be greater if there was more than mere negligence involved. At least if its a dog; we’re not sure about cats.