Hendrickson v. Tender Care Animal Hosp. Corp.

• Decision Date: 17 September 2013
• Docket Number: No. 39767–6–II.,39767–6–II.
• Court: Washington Court of Appeals
• Parties: Julie HENDRICKSON, Appellant, v. TENDER CARE ANIMAL HOSPITAL CORPORATION d/b/a Ridgetop Animal Hospital (UBI 602–262–385), a Washington for-profit corporation; Shannon L. Heath (VT 6597), a licensed Washington veterinarian; the marital community or domestic partnership comprised of Shannon Heath and Doe Heath; Kristen T. Cage (VT 8099), a licensed Washington veterinarian; the marital community or domestic partnership comprised of Kristen T. Cage and Doe Cage; and Does 1–10, Respondents.

176 Wash.App. 757

312 P.3d 52

Julie HENDRICKSON, Appellant,

v.TENDER CARE ANIMAL HOSPITAL CORPORATION d/b/a Ridgetop Animal Hospital (UBI 602–262–385), a Washington for-profit corporation; Shannon L. Heath (VT 6597), a licensed Washington veterinarian; the marital community or domestic partnership comprised of Shannon Heath and Doe Heath; Kristen T. Cage (VT 8099), a licensed Washington veterinarian; the marital community or domestic partnership comprised of Kristen T. Cage and Doe Cage; and Does 1–10, Respondents.

No. 39767–6–II.

Court of Appeals of Washington,

Division 2.

Sept. 17, 2013.

Adam Phillip Karp, Animal Law Offices of Adam P. Karp, Bellingham, WA, for Appellant.

John W. Schedler, Schedler Bond PLLC, Mercer Island, WA, for Respondent.

QUINN–BRINTNALL, J.

[176 Wash.App. 758]¶ 1 Julie Hendrickson appeals the trial court's summary dismissal of her claims for negligent misrepresentation, lack of informed consent, professional negligence, reckless breach of bailment contract, and emotional damages arising out of treatment her dog received at Tender Care Animal Hospital Corporation d/b/a Ridgetop Animal Hospital. She argues that the trial court erred when it (1) dismissed her claims for reckless breach of bailment contract and emotional damages, and (2) dismissed all of her tort claims against Tender Care based on the economic loss rule now denominated the independent duty doctrine.

¶ 2 We hold that the trial court properly dismissed Hendrickson's claims for reckless breach of bailment contract and emotional damages because no Washington court has held that such causes of action exist in the context of loss of a pet. Because our Supreme Court has not specifically approved of the applying of the independent duty doctrine to cases involving veterinary care liability or the torts at issue here, we reverse the trial court's summary dismissal of Hendrickson's tort claims and remand for reconsideration of these issues.

FACTS

¶ 3 On March 16, 2007, Hendrickson brought Bear, her golden retriever, to Tender Care to have him neutered and implanted with a microchip. After the procedures, Kristen Cage, the veterinarian on duty that evening, noticed that Bear's abdomen looked swollen. She ordered that x-rays be taken to make sure that Bear did not have gastric dilatationvolvulus (GDV), a life-threatening condition that results from the accumulation of gas, fluid, or a combination of the two in the stomach. When Cage examined the x-rays, she noticed that Bear had significant gastric distention but not GDV.

¶ 4 When Hendrickson picked Bear up after the procedures, a front desk employee told her that Bear had vomited but that he had been given antivomiting medication and that he was “much better.” Clerk's Papers (CP) at 32. Hendrickson noticed that Bear's abdomen was swollen and when she asked, a Tender Care employee told her that Bear “threw up a lot and swallowed lots of air.” CP at 111. The employee told Hendrickson to give Bear an antibloating medication, take him on frequent walks and if his condition worsened, take him to the animal emergency hospital.

[176 Wash.App. 760]¶ 5 When Hendrickson brought Bear back to her home, she did not give him the antibloating medication and instead administered a homeopathic remedy. When she let Bear outside, he lay down in the driveway. Noticing Bear's worsening condition, Hendrickson lifted him into her car to take him to the emergency hospital and noticed that he had stopped breathing and had a weak, rapid pulse. She called a neighbor to drive her and Bear to the emergency hospital while she performed cardiopulminary resuscitation. Bear arrived at the hospital in respiratory and cardiac arrest and could not be resuscitated. The likely cause of death was GDV.

¶ 6 Hendrickson sued for professional negligence, negligent misrepresentation, lack of informed consent, and reckless breach of bailment contract. She also sought damages for emotional distress arising out of the breach of bailment claim. Tender Care moved for partial summary judgment, claiming that Hendrickson could not prove by clear, cogent, and convincing evidence that Tender Care misrepresented Bear's condition and that claims for lack of informed consent do not apply in cases involving animals. It also argued that because pets are personalty under Washington law, damages for Bear's loss were purely economic and not recoverable in tort under the economic loss rule. Finally, it claimed that Hendrickson's damages, if any, should be limited to the replacement value of the animal because a pet owner has no right to damages for emotional distress for loss of a pet.

¶ 7 The trial court partially granted Tender Care's summary judgment motion, dismissing Hendrickson's tort claims, claims for emotional distress damages, and reckless breach of bailment contract claim.¹ Hendrickson appeals the trial court's summary dismissal of these claims. We accepted discretionary review and granted Tender Care's motion to stay our review of this case pending our Supreme Court's decision in Jackowski v. Borchelt, 174 Wash.2d 720, 278 P.3d 1100 (2012), in which our Supreme Court recognized the recharacterization of the economic loss rule as the independent duty doctrine.

DISCUSSION

Standard of Review

¶ 8 We review a trial court's summary judgment order de novo, engaging in the same inquiry as the trial court. Ruvalcaba v. Kwang Ho Baek, 175 Wash.2d 1, 6, 282 P.3d 1083 (2012). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Visser v. Craig, 139 Wash.App. 152, 157, 159 P.3d 453 (2007) (quoting CR 56(c)).

¶ 9 The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton Condo. Apartment–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). “ ‘After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact.’ ” Visser, 139 Wash.App. at 158, 159 P.3d 453 (quoting Meyer v. Univ. of Wash., 105 Wash.2d 847, 852, 719 P.2d 98 (1986)). “If the nonmoving party fails to do so, then summary judgment is proper.” Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005).

¶ 10 We consider all evidence submitted and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. McPhaden v. Scott, 95 Wash.App. 431, 434, 975 P.2d 1033,review denied,138 Wash.2d 1017, 989 P.2d 1141 (1999). But a nonmoving party “may not rely on speculation, [or on] argumentative assertions that unresolved factual issues remain.” Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986).

Reckless Breach of Bailment Contract and Emotional Distress Damages

¶ 11 Hendrickson argues that the trial court erred when it dismissed her claims for reckless breach of bailment and emotional distress damages. Because Hendrickson has failed to submit, and this court is not aware of, any Washington case creating a claim for emotional distress damages arising out of a contract action, we disagree.

¶ 12 Washington law is clear that “a pet owner has no right to emotional distress damages or damages for loss of human-animal bond based on the negligent death or injury to a pet.” Sherman v. Kissinger, 146 Wash.App. 855, 873, 195 P.3d 539 (2008).² Thus, in support of her argument that emotional damages should be recoverable for reckless breach of bailment contract, Hendrickson primarily relies on our Supreme Court's discussion in Gaglidari v. Denny's Restaurants, Inc., 117 Wash.2d 426, 815 P.2d 1362 (1991), an employment law case.

¶ 13 In that case, Gaglidari, a Denny's employee, brought a claim for breach of employment contract for discharging her without complying with the terms of her employment handbook. Gaglidari, 117 Wash.2d at 430, 815 P.2d 1362. In seeking emotional distress damages, Gaglidari relied on two decisions in which other divisions of this court held that emotional distress damages were available for intentional or reckless breach of contract, Thomas v. French, 30 Wash.App. 811, 817, 638 P.2d 613 (1981), rev'd on other grounds,99 Wash.2d 95, 659 P.2d 1097 (1983), and Cooperstein v. Van Natter, 26 Wash.App. 91, 99, 611 P.2d 1332,review denied,94 Wash.2d 1013, 1980 WL 153126 (1980). Both decisions hinged their analysis on the following provision of the Restatement of Contracts § 341 (1932):

In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss.

¶ 14 The Cooperstein and Thomas courts held that emotional distress damages were available when the breach was either intentional or reckless and the defendant had reason to know when the contract was made that a breach would cause mental suffering for reasons other than mere pecuniary loss. Cooperstein, 26 Wash.App. at 99, 611 P.2d 1332;Thomas, 30 Wash.App. at 817, 638 P.2d 613. But our Supreme Court in Gaglidari held that these courts had interpreted the Restatement too broadly. 117 Wash.2d at 443, 815 P.2d 1362. The court quoted Restatement (Second) of Contracts § 353 (1981), which provides, “Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.” Gaglidar...