No Emotional Distress Damages for Witnessing Death of Pet

McDougall v. Lamm, 211 N.J. 203 (2012).  In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court established limited circumstances under which a person who observes the negligently-caused death or serious injury of another person with whom that person has a “marital or intimate[  ] familial” relationship and experiences extreme emotional distress can sue for that distress.  In this case, plaintiff saw defendant’s dog grab her dog in its mouth, shake her dog repeatedly, and then drop it, causing the death of plaintiff’s dog.  Plaintiff sought to extend Portee principles to the death of her dog, on the grounds that she was very close to her dog and the dog was very well-trained and skilled in doing tricks.  Plaintiff also sued on other theories as well.

The Law Division dismissed her emotional distress claim.  Defendant then stipulated to liability on the other claims, and plaintiff won a bench trial verdict of $5,000, representing the cost of replacing the dog and the value of a well-trained, close pet.  Plaintiff appealed the dismissal of the emotional distress claim.   The Appellate Division affirmed.  Plaintiff sought further review in the Supreme Court.  In a unanimous opinion by Justice Hoens, the Court declined to extend Portee to these circumstances.

Justice Hoens began with a comprehensive recap of the history of emotional distress damages in New Jersey, both before and after Portee.  Some of the precedents had granted relief in the circumstances of particular relationships, while others declined to do so.  The key issue here was thus whether a pet could have a sufficiently “intimate familial” relationship to a plaintiff in order to support Portee liability.  As Justice Hoens summarized it, the Court’s “analysis of the relationship between the claimant and the decedent has been carefully limited; not even all humans are engaged in a relationship that is sufficiently close” to support an emotional distress award.

The Court concluded that plaintiff did not show justification for extending Portee to the loss of a pet.  While recognizing that “pets have a value in excess of that which would ordinarily attach to property, because unlike other forms of personal property, they are not fungible,” Justice Hoens stated that it would be anomalous to award emotional distress damages for the loss of a pet when a plaintiff cannot recover, under the limitations of Portee, for “the misfortune of watching the neighbor’s child, whom she regarded as her own, torn apart by a wild animal.”  Since Portee does not permit emotional distress damages for observing the death of most humans, it cannot authorize such damages for seeing the death of a non-human.

Moreover, plaintiff’s requested cause of action would be inconsistent with provisions of the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, that limit survivors’ recovery for wrongful death to pecuniary damages, no matter how close the decedent was to the survivor.  Again, it would be incongruous to give pet owners more relief than survivors of human decedents.  Justice Hoens also perceived a conflict with the Legislature’s regulation of dangerous dogs and their owners, noting that there are statutes relating to, for example, dog bites.  Although not dispositive of whether a common law right of action could be found to exist, the Legislature had repeatedly declined to enact bills that would have contemplated non-economic damages for the loss of a pet.

Justice Hoens also noted that the vast majority of other states have ruled against emotional distress damages for the loss of a pet.  Only three states had cases to the contrary, and some of those were not very persuasively reasoned.  Regardless, the particular parameters of Portee called for rejection of plaintiff’s proposed new cause of action.

Finally, though pets are more than mere property, plaintiff was already compensated on her other theories for more than the replacement cost of her dog (alleged to be $1,395), including a component for “the intrinsic value” of her particular pet.  Thus, the Court left the Portee doctrine where the Court found it, declining to expand “the limited and specific purposes for which it was designed.”

The Court’s decision here was not a surprise.  Portee is a limited rule.  Not even every close human relationship justifies Portee damages.  Though plaintiff made creative arguments, it was foreseeable that this would be the result.