In McDougall v. Lamm, the New Jersey Supreme Court ruled that emotional distress damages are not available to a pet owner who witnessed the traumatic death of her beloved pet dog. Authors DePaolo and Knopf examine the court's decision and assess the potential implications of explanding a Portee claim of negligent infliction of emotional distress damages to claims arising from the death of a companion pet.
Excerpt: BackgroundThis case involves Plaintiff Joyce McDougall and her nine-year old maltipoo, Angel. In June 2007, Ms. McDougall was walking Angel when a large dog, owned by Defendant Charlot Lamm, ran out of Ms. Lamm's house, growling and snarling. After stopping to sniff, the dog grabbed Angel by the neck, picked it up and shook it several times before dropping Angel to the ground. Ms. McDougall screamed and called for help. She later learned that Angel had died.
AppealsMs. McDougall appealed the dismissal of her claim for emotional distress, urging the Appellate Division to recognize a cause of action for the loss of a companion dog. Defendant argued that allowing plaintiff's claim to proceed would set a dangerous precedent. The Appellate Division agreed with the defendant and affirmed the trial court in an unpublished opinion, declining plaintiff's request to expand the existing cause of action for emotional distress. The Appellate Division concluded that recognition of a new cause of action should come from the Legislature or the Supreme Court, and the New Jersey Supreme Court granted certification.
Portee DoctrineOriginally, some form of physical injury was required in order to recover for mental anguish. That requirement evolved into a requisite that the plaintiff be within the "zone of risk" if accompanied by the risk of substantial bodily injury or sickness. The seminal decision governing the requirements for a bystander emotional distress claim is the Supreme Court's decision in Portee.
The Court's DecisionWhile the law historically has regarded animals as personal property, the Appellate Division has recognized that they are a "special" type of property. The Court observed that it must consider foreseeability, as well as the impact of imposing a duty. Ultimately, the Court decided that it could not grant Ms. McDougall's request to expand the class of individuals for a Portee claim to include pet owners. In declining Ms. McDougall's request to expand Portee, the Court preserved the specific purpose and parameters of the claim. Recovery for negligent infliction of emotional distress by a bystander will continue to be limited to carefully defined intimate familial relationships and, at least for now, man's best friend is relegated to the dog house.
Access the full version of the commentary with your lexis.com ID. Additional fees may be incurred. (Approx. 8 pages.)
If you do not have a lexis.com ID, you can purchase this commentary and additional Emerging Issues Analysis content at the LexisNexis Store.
For more information about LexisNexis products and solutions, connect with us through our corporate site.