Negligent Infliction of Emotion Distress: A Funeral Fit for a Dog

Today’s Post revisits the topic of negligent infliction of emotional distress, an area rich in bizarre and humorous published court cases, such as–

KAY CORSO v. CRAWFORD DOG AND CAT HOSPITAL

415 N.Y.S.2d 182 (1979):

Seymour Friedman, J.

OPINION OF THE COURT

On or about January 28, 1978, the plaintiff brought her 15-year-old poodle into the defendant’s premises for treatment. After examining the dog, the defendant recommended euthenasia and shortly thereafter the dog was put to death. The plaintiff and the defendant agreed that the dog’s body would be turned over to Bide-A-Wee, an organization that would arrange a funeral for the dog. The plaintiff alleged that the defendant wrongfully disposed of her dog, failed to turn over the remains of the dog to the plaintiff for the funeral. The plaintiff had arranged for an elaborate funeral for the dog including a head stone, an epitaph, and attendance by plaintiff’s two sisters and a friend. A casket was delivered to the funeral which, upon opening the casket, instead of the dog’s body, the plaintiff found the body of a dead cat. The plaintiff described during the non-jury trial, her mental distress and anguish, in detail, and indicated that she still feels distress and anguish. The plaintiff sustained no special damages.

The question before the court now is twofold. (1) Is it an actionable tort that was committed? (2) If there is an actionable tort is the plaintiff entitled to damages beyond the market value of the dog?

Before answering these questions the court must first decide whether a pet such as a dog is only an item of personal property as prior cases have held (Smith v Palace Transp. Co., 142 Misc 93). This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.

As in the case where a human body is withheld (Zaslowsky v Nassau County Public Gen. Hosp., 27 Misc. 2d 379; Diebler v American Radiator & Std. Sanitary Corp., 196 Misc 618), the wrongfully withholding or, as here, the destruction of the dog’s body gives rise to an actionable tort.

In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog. A pet is not an inanimate thing that just receives affection; it also returns it. I find that plaintiff Ms. Corso did suffer shock, mental anguish and despondency due to the wrongful destruction and loss of the dog’s body.

She had an elaborate funeral scheduled and planned to visit the grave in the years to come. She was deprived of this right.

This decision is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memoralize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog — that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. This I cannot accept.

Accordingly, the court finds the sum of $700 to be reasonable compensation for the loss suffered by the plaintiff.

COMMENT BY LARRY POLLACK ESQ.:

So who says the courts are going to the dogs? If Leona Helmsley wants to bequeath her entire fortune to her dog, why can’t Mrs. Corso throw an “elaborate funeral” for her beloved poodle (what was that dog’s name, anyway?) So she wants a headstone for her poodle’s grave–didn’t the ancient Egyptians build elaborate tombs to royal dogs? No, wait–it was cats, I think.  Well, clearly the Crawford Dog and Cat Hospital made a big mistake in sending Mrs. Corso Fifi instead of Fido; but why didn’t the funeral home notice the mistake, when they opened the casket to dress the poodle in its fanciest outfit? And surely someone would have noticed the switch at the wake, when the cat in the casket didn’t resemble the dog in the framed picture.  I understand that the aborted funeral was well attended, and the guests were all howling when the coffin was opened.  And how about that dog coffin–I wonder what one of those costs, anyway. See, we Jews don’t believe in fancy pet coffins; we bury our dogs in plain cardboard boxes.

This case, by allowing emotional distress damages despite the lack of any physical impact to Mrs. Corso, or any other human for that matter, seems to be an oddity. Indeed, in Fowler v. Ticonderoga, 516 N.Y.S.2d 368 (1987) the court specifically denied emotional distress damages for any “psychic trauma” other than that connected with a direct physical injury to oneself or to a close relative nearby in the “zone of danger.” In essentially overruling Corso, the Fowler court refused to allow any emotional distress damages for the death of a pet, regardless of how beloved.

As noted in the opinion itself, it may be said that the Corso case is akin to those numerous cases that wrestle with the issue of damages for the improper withholding, disposition or handling of a dead (human) body.  This is a distinct exception to the general common law rule that emotional distress damages are not allowed in tort claims.  Even the failure to disclose the fact that one’s husband has died, for over a week, was held actionable for emotional distress damages. Finn v. City of New York, 335 N.Y.S.2d 516 (1972).

Similarly, we find another discreet exception in some negligent diagnosis cases, such as Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 (1980)(wife negligently diagnosed with syphilis, husband informed, marriage kaput).

HOMEWORK:

Is a hotel responsible for the emotional trauma caused to relatives, when it fails to notice that one of its guests passed away in his room–a week ago? Hint: The body was so decomposed, that it could not properly be prepared or displayed.

UPDATE: On August 2, 2012 the New Jersey Supreme Court issued a decision in McDougall v. Lamm, a case in which the plaintiff sought damages for negligent infliction of emotional distress caused by observing the traumatic death of her beloved dog. The court held that pet owners cannot recover emotional distress damages for the loss of their pets.  The court declined to add to the narrow categories of plaintiffs entitled to emotional distress damages, set forth in Portee v. Jaffee.

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