A Short Leash Measuring Damages for Tortious Injury to Companion Animals, November 2021 SCBJ, SC Lawyer, November 2021, #22

• Position: Vol. 33 Issue 3 Pg. 22

A Short Leash Measuring Damages for Tortious Injury to Companion Animals

No. Vol. 33 Issue 3 Pg. 22

South Carolina BAR Journal

November, 2021

By Elle Klein

Over 67 percent of U.S. households, or about 85 million families, own a pet or “companion animal.”^[1]A majority of these households report that they consider their companion animals to be family members, “just like anybody else.”^[2]Just look at Lady Gaga. When the singer’s two French bulldogs, Koji and Gustav, were stolen from her dog walker at gunpoint earlier this year, she offered a $500,000 reward for their return.^[3]While not everyone can offer a half-million dollar reward for a lost or stolen pet, most pet owners want to keep their pets safe. But we can’t always protect our pets from every danger. In the unfortunate instance when a companion animal is harmed or killed at the hands of another, pet owners should be able to recover damages from the tortfeasor.

Those who have lost a companion animal know all too well the emotional and psychological devastation from that loss, and researchers have found that the loss of a companion animal can be especially traumatic for children.^[4]

Losing a pet is not always just the loss of a pet itself – it’s the loss of a running buddy, co-pilot, Saturday snuggler, or sous chef (i.e., a dog who lingers in the kitchen in hopes of a scrap or spill while its owner cooks). Even so, when a companion animal is harmed or dies due to the negligent or intentional act of another, South Carolina law does not permit recovery for loss of companionship or emotional distress damages in tort actions.

Instead, a plaintiff owner may only recover the animal’s fair market value, because companion animals are considered personal property in the eyes of the law. This measure of damages for tortious injury to companion animals in South Carolina does not meet the goals of tort law – compensation, deterrence, and refection of society’s views. Given the changes in society’s views on companion animals over the last two decades, the time is ripe for attorneys and plaintiff-owners to bring cases to shift the measure of damages and allow recovery for loss of companion- s hip and emotional distress when a companion animal is injured or killed in South Carolina.

Companion animals as property under S.C. law

South Carolina – and the majority of states – denies recovery for loss of companionship and emotional distress damages in tort actions when the injured or deceased victim is a companion animal. This is due to companion animals being classified as personal property under the current legal framework. This current classification therefore limits the recovery of damages for the loss of a companion animal to the fair market value of the animal.

In Ott v. Pittman, a dog owner brought a negligence action against a hog farmer who shot two of the owner’s champion “Treeing Walker Coonhound” dogs.^[5]The lower court awarded damages for the dogs’ owner in the amount of $19,800 based on testimony from an expert on the dog’s market value. On the farmer’s appeal, the Court of Appeals upheld the $19,800 award, finding sufficient support based on expert testimony about the specifc qualities of the breed and training. Id.

A decade later, the owner of a dog who injured the plaintiff’s dog appealed a jury verdict awarding the plaintiff $5,000 in damages for veterinary bills, lost wages, and emotional injuries.^[6]The Court of Appeals explained that courts have limited the award of damages to a dog’s market value in view of the general recognition of dogs as personal property.^[7]The Court held that “South Carolina law does not support a cause of action for emotional distress for injury to one’s pet. Furthermore, we hold that a claim for lost wages resulting from injury to an animal is not actionable because a dog is considered personal property under our law.”^[8]The Court modified the jury’s verdict to only award damages for the veterinary expenses.^[9]

Most recently in 2018, in Fowler, a plaintiff fled suit against FedEx after a FedEx driver ran over the plaintiff’s dog, Honey Bunny. The incident occurred as the plaintiff watched from the window.^[10]“The driver stepped down from his truck, unapologetically stated that he had not seen the dog, returned to his truck, and drove away without delivering any packages as [Plaintiff] and her son wept over Honey Bunny’s dead and...