Zahares v. Jacobs

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVil. ACTION

DOCKET NO. CV-14-137

LIDA ZAHARES and

NANCY PLAISTED,

Plaintiffs,

v. ORDER

BRIAN R. JACOBS and

KATHERINE M. SAULNIER,

Defendants.

I. Background

A. Procedural Posture

This action arises out of an incident in which Plaintiffs Lida M. Zahares and

Nancy A. Plaisted wrestled with the Defendants' dog as it mauled Zahares' dog to death.

Plaintiffs allege four counts in the complaint, including (I) strict liability, (2) negligence,

(3) negligent infliction of emotional distress, and (4) liability under Maine's dog bite

statute, 7 M.R.S. §§ 3961-3962-A, et seq. The Defendants have moved for summary

judgment arguing in part that Plaintiffs cannot recover damages for emotional injuries

resulting from the death of a pet.

B. Facts

On April 22, 2013, Harley mauled Romie to death. (Def.'s S.M.F. ~ 1.) Harley

was a bulldog owned by Defendant Brian Jacobs. (Def.'s S.M.F. ~ 8.) Romie was a

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Boston Terrier owned by PlaintiffLida Zahares. (Def.'s S.M.F. ~ 2.) Zahares and Nancy

Plaisted are sisters; Saulnier is Jacobs' live-in girlfriend. (Def.'s S.M.F. ~~ 3-4, 10.)

On the day of the incident, Harley managed to escape from his crate in the

Defendants' residence while Saulnier was home. (Def.'s S.M.F. ~~ 10-11.) At the time,

Plaisted and four grandchildren were visiting Zahares at her home. (Def.'s S.M.F. ~ 12.)

Zahares had attached a leash to Romie~ s collar to take him for a walk when suddenly

Harley appeared at the glass storm door of the kitchen and began slamming into the door.

(Def.'s S.M.F. ~~ 13-14.) Harley then turned and ran away. When Plaisted opened the

door to tell the grandchildren to take shelter inside a car, Harley managed to get inside.

(Def.'s S.M.F. ~ 16.) Harley proceeded to attack Romie in the kitchen. (Def.'s S.M.F. ~

17.) Zahares initially managed to remove Ramie's head from Harley's mouth and placed

him on the counter. (Pl.'s S.M. Addtl. F.~~ 27-28.) Harley was able to reach Romie and

continued to maul him; Plaisted used a kitchen knife to stab Harley repeatedly to no

effect. (Pl.'s S.M. Addtl. F.~ 28.) After five to ten minutes, Zahares accepted Romie was

dead and proceeded to bring him outside, with his leash and Harley still attached. (Pl.'s

S.M. Addtl. F.~ 29.) Zahares and Plaisted physically struggled in their attempt to wrestle

Harley away from Romie, Pl.'s Resp. D.S.M.F. ~ 17, but neither suffered physical

injuries from the attack. (Def.'s S.M.F. ~ 18-19.) Plaisted was "terrified" by the incident

and Zahares has had recurring nightmares. (Pl.'s S.M. Addtl. F.~~ 32-33.)

IT. Discussion

A. Summary Judgment Standard

"Summary judgment is appropriate when review of the parties' statements of

material facts and the record evidence to which the statements refer, considered in the

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light most favorable to the [nonmoving] party, demonstrates that there is no genuine issue

of material fact that is in dispute and the [moving] party is entitled to judgment as a

matter of law." Remmes v. Mark Travel Corp., 20151-ffi 63, ~ 18, _ A.2d _.

There is no genuine dispute as to the facts. Rather, the narrow issue before the

court is whether the Plaintiffs have suffered injuries that are recoverable as a matter of

law.

B. Negligent Infliction of Emotional Distress

A claim for negligent infliction of emotional distress tracks the elements of

negligence: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that

duty; (3) the plaintiff was harmed; and (4) the breach caused the plaintiffs harm. Curtis v.

Porter, 2001 11E 158, ~ 18, 784 A.2d 18. There is no general duty to avoid causing

others emotional harm and Maine courts have "recognized a duty to act reasonably to

avoid emotional harm to others in very limited circumstances." Id. ~ 19. The Law Court

has held that such a duty ordinarily arises in two circumstances: (1) where there is a

special relationship between the tortfeasor and the plaintiff; and (2) where the facts

support a claim for bystander liability. Brown v. Delta Tau Delta, 2015 11E 75, ~ 10, _

A.2d _(citing Curtis v. Porter, 2001 ME 158, ~~ 18-19, 784 A.2d 18). A duty exists

under a bystander theory if the plaintiff-bystander establishes he or she (1) was closely

related to the victim, (2) was at or near the scene of the incident, and (3) suffered distress

as a result of directly observing the incident. Culbert v. Sampson's Supermarkets, Inc.,

444 A.2d 433, 434-35 (Me. 1982) (mother could recover emotional distress for

witnessing child choke on baby food); Purty v. Kennebec Valley Med. Ctr., 551 A.2d

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858, 859 (Me. 1988) (mother present during her child's birth could maintain claim for

emotional distress resulting from hospital's negligence).

The issue presented is whether a plaintiff may recover damages for emotional

injuries arising out of negligent harm (and in this case death) to the plaintiffs pet. The

Restatement is clear that such injuries are ordinarily not compensable. Restatement

(Third) of Torts: Phys. & Emot. Harm § 47 cmt. m (2012) ("While pets are often quite

different from other chattels in terms of emotional attachment, an actor who negligently

injures another's pet is not liable for emotional harm suffered by the pet's owner."). In

the same vein, most jurisdictions have held that pets are personal property and damages

are limited to compensation for fair market value; damages for emotional distress or lost

sentimental value are not recoverable. See, e.g., Carbasho v. Musulin, 217 W. Va. 359,

362, 618 S.E.2d 368, 371 (2005) (collecting cases); Oberschlake v. Veterinary Assocs.

Animal Hasp., 785 N.E.2d 811, 814 (Ohio App. 2003) (dogs are property thus emotional

distress damages not available); Koester v. VCA Animal Hasp., 624 N.W.2d 209, 211

(Mich. App. 2000) (same).

Furthermore, an essential element of proving bystander emotional distress is a

"close familial relationship." Michaud v. Great N. Nekoosa Corp., 1998 ME 213, ~ 17,

715 A.2d 955. While pets are often considered part of the "family," there is no clear

authority for holding that pets and owners share a "close familial relationship" to support

a claim for bystander liability. Like the jurisdictions cited above, Maine treats pets as

personal property. 7 M.R.S. §§ 3961, 3962-A; see also Chapman v. Decrow, 93 Me. 378,

45 A. 295, 298 (1899) ("By the common law, a dog is property, for an injury to which an

action will lie.") Damage to personal property is generally calculated as: "(1) the

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difference in value of the property before and after the actionable injury, or 2) the cost of

repairing or restoring the property to its condition before the injury." Horton & McGehee,

Maine Civil Remedies§ 4-3(c)(7) at 67-68 (4th ed. 2004).

In line with the above, this court has in several cases rejected emotional distress

claims brought by pet owners. See, e.g., Hayes v. Lisbon Rd. Animal Hasp., 2014 Me.

Super. LEXIS 222, *18 (Me. Super. Ct. Dec. 19, 2014) (Kennedy, J.) (emotional distress

based on veterinarian's negligence that resulted in dog's death failed to state a claim);

Galt v. Caffrey, OXFSC-CV-96-09 (Me. Super. Ct., Oxf. Cty., Mar. 17, 1999) (Warren,

J.) (excluding evidence of emotional distress on the grounds that dog owner's failure to

be physically present would have precluded recovery on a bystander theory even if dogs

were treated as close family members).

This case involves a unique set of circumstances due to the violence of the

episode and the fact the Plaintiffs were not simply mere bystanders, but directly and

physically involved. The Plaintiffs engaged Harley in a bloody, physical wrestling match

unlike any pet cases described above. This warrants further analysis into the principles

that gave rise to the rules limiting emotional distress claims. The hurdle for the Plaintiffs,

as in most NIED cases, is establishing the requisite duty. Determining whether a duty

generally exists is often not determined by reference to rigid formulas or tests:

[M]any factors interplay: the hand of history, our ideals of morals and

justice, the convenience of administration of the rule, and our social ideas

as to where the loss should fall. In the end the court will decide whether

there is a duty on the basis of the mores of the community "always

keeping in mind the fact that we endeavor to make a rule in each case that

will be practical and in keeping with the general understanding of

mankind."

Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992) see also Brown, 2015 ME 75, ~ 9, _

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A.2d _ (describing duty as "a multi-factored analysis that necessarily evokes policy-

based considerations including the just allocation of loss").

In determining whether a defendant owes a duty to a particular NIED plaintiff,

there is an important distinction between direct and indirect victims. Champagne v. Mid-

Me. Med. Ctr., 1998 :ME 87, ~ 6, 711 A.2d 842 ("We have recognized that the victim of

negligent conduct has a legally protected interest in her psychic health, with different

rules governing recovery depending on whether she is characterized as a 'direct' or an

'indirect' victim.") Plaintiffs here are properly characterized as direct victims because,

notwithstanding the fact they did not suffer physical injury, they were "the object of the

defendant's negligent conduct." !d. (citing Gammon v. Osteopathic Hasp. of Me., Inc.,

534 A.2d 1282 (Me. 1987)).

The distinction between direct and indirect victims can be traced back to several

policy-based doctrines designed to limit emotional distress claims, including the so-called

"zone of danger" rule. Under the zone of danger rule "the negligent tortfeasor is liable to

those persons who suffer mental distress as a result of the defendant's conduct and are

within the zone of risk or threat of physical harm." Culbert v. Sampson's Supermarkets,

Inc., 444 A.2d 433, 435 (Me. 1982). In Culbert, the Law Court declined to limit

emotional distress recovery to plaintiffs within the "zone of danger" on the grounds such

a rule would be unduly narrow, arbitrary, and would unjustly bar recovery for otherwise

reasonably foreseeable plaintiffs.

Indeed, as was the policy rationale for the "zone of danger" rule, foreseeability is

key to the "direct victim" duty analysis. In Gammon, the leading direct victim case in

Maine, the plaintiffs father had died and the plaintiff picked up two bags from the

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funeral home that purportedly contained his father's personal effects. When the plaintiff

opened one of the bags at home, he found a bloodied, bluish human leg, which was

severed below the knee. Believing the leg to be his father's, the plaintiff suffered

significant shock and recurring nightmares. In reversing a directed verdict for the

mortician and funeral home on the plaintiff's emotional distress claim, the Law Court

held a duty existed as a matter of law because the defendants "reasonably should have

foreseen" that the decedent's family members would suffer mental distress from

discovering the limb among the personal effects. Gammon, 534 A.2d at 1285-86. The

court declined to craft a more rigid rule, observing: "[n]o useful purpose would be served

by more detailed analyses of our prior decisions or by consideration of whether the

holdings of these cases follow a consistent trend." Gammon, 534 A.2d at 1284. The court

remarked aptly that utilizing analogies risks creating "artificial devices" to limit claims

with inconsistent results. The court's ultimate concern in evaluating emotional distress

claims is to "protect against fraudulent claims and against undue burden on the conduct

of defendants," which can be accomplished by reference to the fundamental principle of

foreseeability. Id. at 1284-85. The court concluded that on the facts and circumstances,

the harm was sufficiently foreseeable to impose a duty and thus created a triable claim for

negligence.

While the Law Court has narrowed emotional distress liability in subsequent

cases, see, e.g., Cameron v. Pepin, 610 A.2d 279, 281 (Me. 1992); Curtis v. Porter, 2001

ME 158, ~ 19, 784 A.2d 18; see also Paul F. Macri, How the Law Court Uses Duty to

Limit the Scope of Negligence Liability, 53 Me. L. Rev. 503, 513-20 (2001) (discussing

decisions post- Culbert and Gammon), the rules crafted in those cases limited recovery

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for indirect victims. Nelson v. Flanagan, 677 A.2d 545, 547-48 (Me. 1996).

Foreseeability remains the touchstone in direct victim cases. See Michaud, 1998 ME 213,

~ 16, 715 A.2d 955 (direct victims establish a duty where the "defendant should have

foreseen that mental distress would result from his negligence").

The undisputed facts establish that the Plaintiffs were directly threatened with

physical harm resulting from the negligent conduct. The Plaintiffs bring claims for

injuries arising not only from the harm to Ramie, but also the distress of the entire

incident. They were therefore direct victims. Cf Champagne, 1998 ME 87, ~ 7, 711 A.2d

842 (rejecting NIED claim by mother because negligence was directed at baby who was

given to the wrong mother to breastfeed, not at the plaintiff-mother). The Defendants

should have reasonably foreseen that their dog, with violent propensities, could not only

attack and kill another dog in the neighborhood, but also threaten to harm neighbors and

cause them emotional distress. See Gammon, 534 A.2d at 1285-86. Whether the

Defendants should be held liable for the harm is ultimately for the factfinder to consider

and decide. 1 That determination is wrapped up in greater questions of foreseeability and

fairness. The court is satisfied that the Plaintiffs have met their threshold burden to

establish duty at the summary judgment stage.

The entry shall be:

Defendant's motion for summary judgment is hereby DENIED.

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It bears emphasis that the Plaintiffs are only entitled to recover emotional damages

attributable to the incident itself, not to the loss of Romie. The Defendants have the burden of

proof to separate damages from compensable and non-compensable sources. Compare Lovely v.

Allstate Ins. Co., 658 A.2d 1091, 1093 (Me. 1995), with Champagne v. Mid-Me. Med. Ctr., 1998

ME 87, 1 12, 711 A.2d 842. To the extent Champagne suggested plaintiffs have such a burden, if

the Plaintiffs in this case prove liability at trial, placing the burden of separating out damages on

the proven tortfeasor is more consistent with the principles enunciated in Lovely.

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SO ORDERED.

DATE: Jf___, 2015

0('6 John O'ffei(Jf:

Justice, Superior Court

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CV-14-137

ATTORNEYS FOR PLAINTIFF:

GORDON C A YER

MATTIIEW J WILLIAMS

HODSDON & A YER

56 PORTLAND ROAD

KENNEBUNK ME 04043

ATTORNEY FOR DEFENDANT:

JOHN R VEILLEUX .

NORMAN HANSON & DETROY LLC

POBOX4600

PORTLANDME 04112