Rabideau v. City of Racine

• Decision Date: 12 June 2001
• Docket Number: No. 99-3263.,99-3263.
• Citation: 243 Wis.2d 486,2001 WI 57,627 N.W.2d 795
• Parties: Julie L. RABIDEAU, Plaintiff-Appellant-Petitioner, v. CITY OF RACINE, Defendant-Respondent.
• Court: Wisconsin Supreme Court

243 Wis.2d 486

2001 WI 57

627 N.W.2d 795

Julie L. RABIDEAU, Plaintiff-Appellant-Petitioner, v. CITY OF RACINE, Defendant-Respondent.

No. 99-3263.

Supreme Court of Wisconsin.

Oral argument February 28, 2001.

Decided June 12, 2001.

For the plaintiff-appellant-petitioner there were briefs by Alan D. Eisenberg and Law Offices of Alan D. Eisenberg, Milwaukee, and oral argument by Alan D. Eisenberg.

For the defendant-respondent there was a brief and oral argument by W. Scott Lewis, assistant city attorney.

¶ 1. WILLIAM A. BABLITCH, J.

Dakota was shot by a City of Racine police officer. He subsequently died from the injury. Dakota lived with Julie Rabideau (Rabideau), who witnessed the events leading to his death. Rabideau subsequently filed a claim for damages against the City of Racine (the City). Racine County Circuit Court Judge Allan B. Torhorst granted summary judgment to the City, and the court of appeals affirmed.¹

¶ 2. The primary question presented in this case is whether Rabideau is entitled to damages for emotional distress. Although the question of whether or not a bystander may recover damages after witnessing an accident is a legal question that this court has previously addressed, this particular case is distinguishable from others: Dakota was a dog, a companion to Rabideau.

¶ 3. At the outset, we note that we are uncomfortable with the law's cold characterization of a dog, such as Dakota, as mere "property."² Labeling a dog "property" fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.³ A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.

¶ 4. The association of dog and human is long-standing. Dogs have been a part of human domestic life since 6,300 B.C. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059, 1064 (1995). Archaeologists have uncovered a 12,000-year-old burial site in which a human being and a dog lay buried together. "The arm of the person was arranged on the dog's shoulder, as if to emphasize the bonds that existed between these two individuals during life." Id. (internal quotation marks and footnote omitted). Dogs are so much a part of the human experience that we need not cite to authority when we note that dogs work in law enforcement, assist the blind and disabled, perform traditional jobs such as herding animals and providing security, and, of course, dogs continue to provide humans with devoted friendship.

¶ 5. Nevertheless, the law categorizes the dog as personal property despite the long relationship between dogs and humans. To the extent this opinion uses the term "property" in describing how humans value the dog they live with, it is done only as a means of applying established legal doctrine to the facts of this case.

¶ 6. Two theories are proffered by Rabideau as grounds for the recovery of emotional damages: negligent infliction of emotional distress and intentional infliction of emotional distress. As to the first, as a predicate matter to bringing a claim for damages based upon the tort of negligent infliction of emotional distress the plaintiff must be related to the victim as spouse, parent-child, grandparent-grandchild, or sibling.⁴ Because the relationship between Rabideau and Dakota did not fall within one of these categories, we find that she cannot maintain a claim on this basis.

¶ 7. We further conclude that Rabideau cannot maintain a claim for recovery for the emotional distress caused by negligent damage to her property. Our decision is based upon well-established public policy criteria.⁵ We are particularly concerned that were such a claim to go forward, the law would proceed upon a course that had no just stopping point. Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion.

¶ 8. Rabideau's second theory is based upon intentional infliction of emotional distress. We concur with the court of appeals that Rabideau's complaint cannot survive summary judgment when examined within the framework of set forth in Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963).

¶ 9. In addition to these claims we address three additional issues. First, we conclude that Rabideau's complaint, liberally read, encompasses a claim for damages for property loss.

¶ 10. Second, we find that genuine issues of material fact exist as to whether Officer Thomas Jacobi was entitled as a matter of law to shoot and kill Dakota. See Wis. Stat. § 174.01 (1997-98).⁶ Accordingly, we reverse the circuit court's grant of summary judgment on the basis of § 174.01.

¶ 11. Third, we reverse the determination by the circuit court that this complaint was frivolous. We conclude that Rabideau's complaint for damages for the intentional infliction of emotional distress was one that could properly be brought, although the elements for that claim were not satisfied so as to survive a motion for summary judgment. As to Rabideau's claim for damages based upon the negligent infliction of emotional distress, her brief to the court of appeals and this court set forth a good faith argument for an extension of the law. Under these circumstances a finding of frivolousness was erroneous.

Standard of Review

[1, 2]

¶ 12. In this case we are reviewing the circuit court's grant of summary judgment to the City.⁷ This presents a question of law that we review de novo. Strasser v. Transtech Mobile Fleet Serv., 2000 WI 87, ¶ 28, 236 Wis. 2d 435, 613 N.W.2d 142. Pursuant to Wis. Stat. § 802.08(2), summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "In analyzing whether there are genuine issues of material fact, we draw all reasonable inferences in favor of the nonmoving party." Strasser, 2000 WI 87 at ¶ 32.

Analysis

¶ 13. We begin our analysis by briefly reviewing the facts. Rabideau and Officer Jacobi were neighbors. On March 31, 1999, Officer Jacobi had just returned home. Across the street, Rabideau was returning home as well. Dakota jumped out of Rabideau's truck. He crossed the street to the Jacobi house where Jed, the Jacobi's Chesapeake Bay retriever, was in the yard.

¶ 14. There is significant disagreement between the parties concerning what subsequently occurred. The City argued that Dakota came onto the Jacobi property and attacked Jed. Officer Jacobi, it is contended, shouted at Dakota to no effect. The City argues that Officer Jacobi, fearing for the safety of Jed, and for the safety of his wife and child who were nearby, fired a number of shots with his service revolver. Dakota moved toward the street and turned his head and was snarling. Officer Jacobi, believing the dog was about to charge, fired a third time and struck Dakota.

¶ 15. On the other hand, Rabideau contends that Dakota was sniffing Jed, not biting or acting aggressively. She asserts that she called Dakota and was crossing the street to retrieve him when shots rang out.

¶ 16. Although both parties agree that three shots were fired, Rabideau maintains that Dakota was stepping off the curb toward her when he was hit by Officer Jacobi's second shot. Rabideau asserts that while Dakota was struggling to crawl away, Officer Jacobi fired again and missed. ¶ 17. Two days after the shooting occurred, Rabideau was informed that Dakota died. Upon hearing this news, she collapsed and was given medical treatment.

¶ 18. Rabideau filed a complaint in small claims court, which stated: "City of Racine Police Officer Thomas Jacobi shot and killed my dog, Dakota, and caused me to collapse and require medical attention."

I

¶ 19. The circuit court and the court of appeals both determined that Rabideau's complaint set forth a claim for emotional distress. The circuit court addressed this complaint as one asserting a claim of negligent infliction of emotional distress. The court of appeals addressed both negligent infliction of emotional distress and intentional infliction of emotional distress. In this review, we will address both claims.

A

[3]

¶ 20. Rabideau argues that the tort of negligent infliction of emotional distress to a bystander should encompass the facts of this case. Our tort law recognizes a claim for damages where a bystander suffers great emotional distress after witnessing an accident or its gruesome aftermath involving death or serious injury to a close relative. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)

. The elements of the claim are: "`(1) that the defendant's conduct [in the underlying accident] fell below the applicable standard of care, (2) that the plaintiff suffered an injury [severe emotional distress], and (3) that the defendant's conduct was a cause-in-fact of the plaintiff's injury.'" Wis JI—Civil 1510 Comment (quoting Bowen, 183 Wis. 2d at 632.) Rabideau's complaint sets forth these elements.

¶ 21. Nevertheless, even if a plaintiff sets forth the elements of a negligence claim, a court may determine that liability is precluded by public policy considerations. Gritzner v. Michael R., 2000 WI 68, ¶ 26, 235 Wis. 2d 781, 611 N.W.2d 906. Before a court makes such a determination, it is typically the better practice to submit the case to the jury. Id. If, however, the facts of the case are not complex and the attendant public policy issues are presented in full, then this court may determine before trial if liability is precluded by public policy. Id. Accordingly, we turn next to a consideration of the public policy concerns presented...