Zager v. Dimilia

• Decision Date: 04 January 1988
• Citation: 524 N.Y.S.2d 968,138 Misc.2d 448
• Parties: Jonathan ZAGER, Plaintiff, v. Jonathan DIMILIA, Defendant.
• Court: New York Villiage Court

Page 968

524 N.Y.S.2d 968

138 Misc.2d 448

Jonathan ZAGER, Plaintiff, v. Jonathan DIMILIA, Defendant.

Village Court of Pleasantville.

Jan. 4, 1988.

Herbert Rosedale of Parker Chapin Flattau & Klimpl, New York City, for plaintiff.

Jonathan Dimilia, pro se.

JOHN M. NONNA, Acting Village Justice.

This is the continuing saga of McDuff and Tucker, two members of the species "canis familiaris," popularly known as "man's best friend," who had an altercation on the streets of Pleasantville in January, 1986. The Village Court previously found that defendant was liable to plaintiff for his failure to keep McDuff confined and that McDuff had broken his tether. Defendant's failure to maintain McDuff on a leash constituted a violation of Pleasantville Municipal Code § 54.25 and related provisions regulating control of animals. While affirming the Village Court's finding of liability, the Appellate Term mandated that there be a new trial to determine the appropriate damages. The Appellate Term disagreed with the Village Court's initial finding that Tucker's fair market value, considering his age and mixed breeding was $10.00. The appellate court concluded that, "where there is no known market value, actual value to the owner or 'intrinsic' value is the criteria." Zager v. Dimilia, (App. Term, decided July 17, 1987), Slip Opinion at 2.

Upon the retrial of the damages issue, plaintiff advances several theories to support his claim for $400. First, plaintiff contends that the cost of treatment constitutes Tucker's "intrinsic value." Secondly, as evidence of intrinsic value, plaintiff testified to the cost of adoption ($25.00), cost of sterilization ($25.00), and time expended training Tucker as a puppy. In addition, plaintiff asserts that Tucker's "intrinsic" value includes "his traits to Plaintiff and members of the household; Tucker's use in protecting the household and its various members and the value of the emotional bond between dog and members of plaintiff's family." Plaintiff's Memorandum on Damages, p. 4. Plaintiff expressly disavows any claim for emotional distress as a result of the injuries suffered by Tucker. Finally, for the first time, plaintiff interposes a claim for punitive damages.

The following testimony was elicited from plaintiff with respect to the question of Tucker's "intrinsic value" in addition to the cost of adoption and neutering. Plaintiff claims that he spent over one hundred hours training Tucker as a puppy. He trained Tucker to sit up, fetch and roll over. Unfortunately, due to his advanced age, Tucker can no longer perform these feats. Tucker also suffers from impaired hearing and arthritis. Plaintiff and his wife also testified that Tucker was a companion for their children and retained some value as a watchdog in that Tucker still possessed his bark (if not his bite).

This testimony does not help to establish a monetary amount for the "intrinsic" value of Tucker. On the one hand, the cost of neutering and adoption seems too low a reflection of its intrinsic value. Conversely, Tucker's relationship to plaintiff and members of his family does have value separate and distinct from sentiment, an element which the law precludes from consideration in ascertaining damages. Smith v. Palace Transportation Co., 142 Misc. 93, 253 N.Y.S. 87 (Mun.Ct.1931); Stettner v. Graubard, 82 Misc.2d 132, 368 N.Y.S.2d 132 (Town Ct.1975). However, it is impossible to reduce to monetary terms the bond between man and dog, a relationship which has been more eloquently memorialized in literature and depicted on the motion picture screen.

The cases cited in the Appellate Term's decision similarly do not offer much guidance in estimating Tucker's value to plaintiff. These decisions merely recite the traditional formula that the factors determining value include the "animal's age, health, special traits or characteristics of value without consideration of depreciation, presumably because a domestic animal's value increases, rather than declines as it becomes older and better trained." See, e.g., Hersh v. Heiffler, N.Y.L.J. 10/18/85 Page 16 col. 5 (App. Term 1985); Blauvelt v. Cleveland, 198 A.D. 229, 190 N.Y.S. 881 (4th Dept. 1921); Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285 (Civ.Ct.1980); Stettner v. Graubard, 82 Misc.2d 132, 368 N.Y.S.2d 683 (Town Ct.1975).

Here, the age, health and traits of Tucker do not provide an adequate benchmark of Tucker's value, "intrinsic" or otherwise. A historical survey of the case law reveals that this rule originated in cases involving working animals, valuable for their herding or hunting skills or show dogs, prized for their pedigree. 7C Warren's N.Y.Negligence, Personal Property, § 3.02(5) and cases cited therein; See e.g. Van Alstyne v. Rochester Telephone Corp., 163 Misc. 258, 296 N.Y.S. 726 (Rochester City Court 1937). Tucker's "intrinsic" value may not have increased with age since he is less able to perform than in his youthful days and is not in good health. Further, any such "intrinsic" value would be a guess in these circumstances.

In light of the difficulty in calculating some ethereal "intrinsic" value for Tucker, the Court concludes that the proper measure of damages in a case involving injury suffered by a pet animal is the reasonable and necessary cost of reasonable veterinary treatment. This approach is supported by case authorities and legal commentators. See Brown v. Swindell, 198 So.2d 432 (La.Ct.App.1967) (veterinary fee awarded; claim for emotional damages dismissed). Morgan v. Patin, 47 So.2d 91 (La.Ct.App.1950) (dog had no market value, veterinary fee awarded). Long ago one legal scholar articulated the rationale for this rule:

"In cases of injury to animals ... the plaintiff ought to recover for expenses reasonably incurred in efforts to cure them in addition to the diminution in their value or their whole value when they are finally lost. The law would be inhuman in the tendency if it should prescribe a different rule, even where the animal eventually dies, since it would then offer an inducement to the owner to neglect its sufferings."

2 Shearman, A Treatise on the Law of Negligence (5th Ed. 1898).

What constitutes reasonable treatment must be determined on a case by case basis in light of the injuries suffered. The traditional restriction in personal property cases that the cost of repair should not exceed the market or "intrinsic" value of the property should not be applied in a case where neither market nor "intrinsic" value is capable of calculation and a living creature is involved. See 7C Warren's New York Negligence, Personal Property, § 2.02. However, the treatment must be reasonable in light of the animal's injuries, condition and prognosis.

The burden of...