Sixty-eight percent of households in the United States have a pet,¹ and in 2016 alone, Americans spent more than $66.75 billion on those pets.² The North American Pet Health Insurance Association reported that in 2017, $1.2 billion was spent on pet health insurance premiums in North America.³

Much to the dismay of those 68 percent of American households, pets are considered personal property in Wisconsin.⁴ Regardless, the 1923 Hagenau⁵ court also clarified that dogs “are not outlaws,” and that they “generally manifest human instincts and emotions in a very marked degree.”

As is summarized in WIS JI-CIVIL 1804, recovery for repairable personal property (with or without human instincts and emotions) is the lesser of the diminution in value or the cost of repair – limited to the pre-injury fair market value of the personal property.

When Pets Are Injured

Valuation
When pets are injured, their owners often incur large veterinary bills, loss of wages, travel expenses to tend to the animal, and pain and suffering. In Rabideau v. City of Racine,⁶ the Wisconsin Supreme Court declined to address how courts should measure elements of loss such as veterinary expenses because the issue was not thoroughly briefed.

In the unpublished case of Smith v. Wisconsin Mutual Insurance Co.,⁷ the Smiths spent more than $12,000 in veterinary bills, travel, and lost wages to save (repair?) their dog, which was injured (damaged?) by another dog. It was agreed that a similar-breed puppy would cost $2,695. Damages were awarded in the amount of $5,390 (double the replacement-puppy cost due to the doubling provision of Wis. Stat. section 174.02). It does not appear that the insurer consulted the Beagle Blue Book to argue for depreciation.

The Smiths claimed that the dog-bite statute required payment “for the full amount of damages.” That failed – apparently due to the fact that the statute did not permit the court to apply a different property damages rule.⁸

The Smiths also argued that a special damages rule should apply, similar to what was applied to heirlooms and keepsakes in Harvey v. Wheeler Transfer & Storage Co.⁹ The Harvey court held that, in determining value for “such things as family pictures and heirlooms, which cannot be replaced and are valuable only to the owner, [the owner] may be compensated to the extent of the reasonable special value of such articles.”

The Smith court rejected that argument as well, holding that “there are obvious and significant differences between an unrepairable and lost forever keepsake and an injured but ‘repairable’ pet.”

Additionally, the court stressed that the Smiths had not claimed damages due to the special value of the pet to the owner, but rather, sought only their repair costs.

The Smiths also pointed to cases such as Vetter v. Rein¹⁰ that found the cost of repairs could be awarded for chattel with no ascertainable market value. It appears on point for the Smiths’ 11-year-old dog. This argument was also rejected because the Supreme Court “has expressly declined to address how to measure [such] damages.”

Possible Approaches with Injuries to Pets
Though unpublished, the Smith decision would seem to encourage plaintiffs to draw from the “keepsake” cases when making claims. Furthermore, when actual damages exceed the monetary value of the dog (with “depreciation”), plaintiffs may want to argue that the dog has no ascertainable market value, and thus, the cost of repairs should be awarded. Defendants already have some pretty solid traditional defenses.

The American Veterinary Medical Association has proposed that courts at least consider a pet’s purchase price, age/health of the animal, breeding status, pedigree, special training, veterinary expenses related to the incident in question, and any particular utility the animal has to the owner.¹¹ However, that appears to be a matter for our legislature.

Last year, 2017 Senate Bill 254 proposed creation of Wis. Stat. section 895.4455, which would have permitted recovery of “actual damages, including medical bills and travel costs for the injury, loss, or death of the domestic animal in addition to any other remedies available under law.” The bill died a quick death.

Saving a Pet
In Kelly v. Berg,¹² the plaintiff was injured while trying to rescue her dog from the mouth of a pit bull. The defendant asserted that instructing the jury on the emergency doctrine was erroneous because it “cannot apply when a person acts to prevent damage to property.”

The court did not need to decide that issue, because the court determined that the plaintiff “indisputably had time to contemplate her course of conduct before acting.”¹³ So, if you are going to try to rescue your pet, you might want to do so without thinking.

Emotional Distress
In Rabideau v. City of Racine,¹⁴ a dog was shot and killed by a police officer. Its owner made a claim for negligent infliction of emotional distress as a bystander. After clarifying that a dog is in fact “not a living room sofa,” the court pointed to an obvious weakness in that the plaintiff was not the dog’s spouse, parent, grandparent, or sibling.¹⁵ The court clarified that the claim cannot be asserted with injuries to best friends – whether they are humans or dogs.¹⁶

However, in Westmore v. Hyde,¹⁷ the federal court addressed the defendant’s motion in limine to preclude evidence of the plaintiffs’ feelings about the seizure of their horse. The court held that the “plaintiffs may testify about any mental or emotional injury they suffered as a direct result of any constitutional violations.” This is consistent with the U.S. Supreme Court case of Carey v. Ciphus,¹⁸ which held that emotional distress was compensable in Section 1983 claims.

The solution for the emotionally distressed seems fairly obvious: look for a constitutional violation.

Injuries from Animals

Strict Liability for Dog Bites and Other Injuries
There are nearly 90 million dogs in the United States – up from 68 million in 2000.¹⁹ According to the CDC, nearly 5 million people in the United States suffer dog bites every year. In 2016, there were at least 31 fatal dog attacks.²⁰ In 2017, there were 18,522 dog bite claims, and homeowner’s insurers paid out more than $686 million in liability claims for injuries caused by dogs.²¹

Wis. Stat. section 174.02(1) makes dog owners (including one who keeps or harbors a dog) responsible for “the full amount of damages” caused by their dogs. Since Nov. 13, 2015, the owner is liable for twice the damages caused by a dog bite that had “sufficient force to break the skin and cause permanent physical scarring or disfigurement” if the owner knew the dog previously and without provocation bit a person with “sufficient force to break the skin and cause permanent physical scarring or disfigurement.”

Dog owners are said to be strictly liable for the injuries caused by their dogs because plaintiffs need not prove any specific act of negligence, and certain defenses do not apply. Fandrey ex rel. Connell v. American Family Mutual Insurance Co.²² However, courts may still preclude liability for public policy reasons “in cases so extreme that it would shock the conscience of society to impose liability.”²³ Additionally, a dog bite victim may be found contributorily negligent.

As to trespassing children, a dog is not an inherently dangerous artificial condition for purposes of the attractive nuisance doctrine.²⁴

Although homeowner’s insurance policies frequently cover liability for dog bites, some exclude coverage, charge higher premiums, or set other pre-requisites, especially for certain breeds of dogs and for dogs that have already caused injury. In the unpublished case of Baumann-Mader v. Integrity Mutual Insurance Co.,²⁵ the court refused to reform a policy to provide coverage for a dog that had previously injured someone. In Trampf v. Prudential Property & Casualty Co.,²⁶ it was determined that a bite from a dog sitting in the back of an uninsured jeep should be covered by the victim’s uninsured motorist policy.

From Strict to No Liability
Wisconsin’s recreational immunity statutes provide liability protection for a property owner when the injured person was horseback riding, bird-watching, animal training, hunting, fishing, trapping, engaging in agricultural tourism, or being attacked by a wild animal.²⁷

Of course, there are several exceptions, and there are cases on both sides of nearly every aspect of the protection.

The Equine Immunity Statute provides additional protections for donkey, hinny, horse, mule, and pony owners because the equine activities are apparently inherently risky, the equines are unpredictable, and the people participating in the activities have a potential to act negligently.²⁸

Cows must be much smarter.

Somewhere Between Strict Liability and Immunity, There Is Ordinary Negligence
For owners of cows, pigs, horses, and other animals who do not face the burden of strict liability nor the benefit of statutory immunity, the standard is usually ordinary negligence.

Farmers who ignore their fences and forget to lock their gates may be found negligent for injuries and damages caused by animals on the road or trespassing in neighbors’ yards. In the 1896 case of Bormann v. City of Milwaukee,²⁹ the court distinguished between two classes of animals:

1. domestic animals “rightfully in the place where the mischief was done” for which the plaintiff must prove the owner had notice of the animal’s vicious propensities, and

2. “lions, tigers, bears, elephants, monkeys, or any other wild and ferocious animals” where the owner is presumed to know they “are vicious, and liable to do mischief.”

Originally published in the State Bar of Wisconsin Litigation Section Blog, October 2018. Interested in joining the Litigation Section? Visit the Litigation Section webpage (login required) for more information.

Endnotes

¹ Insurance Information Institute, Facts + Statistics: Pet statistics (2017-2018).

² Dan J. Barton, Pet Ownership Statistics Shows U.S. Spends $66.75 Billion (2017).

³ Insurance Information Institute, Facts + Statistics: Pet statistics (2017-2018).

⁴ Hagenau v. Millard, 182 Wis. 544, 195 N.W. 718 (1923). Apparently, once we learn that pets are property, we are supposed to apply that knowledge to future cases. See Office of Lawyer Regulation v. Eisenberg, 2013 WI 37, ¶¶6-9, 347 Wis. 2d 116, 833 N.W.2d 46.

⁵ Id.

⁶ 2001 WI 57, ¶37, 243 Wis. 2d 486, 627 N.W.2d 795.

⁷ 369 Wis. 2d 224, 880 N.W.2d 183 (Ct. App. 2016).

⁸ Compare this to Wisconsin Statute §895.57, with which the intentional release of animals could result in payment of damages (including the cost to restore the animal to confinement), punitive damages, attorney fees, and 12% interest from the date of the intentional release.

⁹ 227 Wis. 36, 277 N.W. 627 (1938).

¹⁰ 203 Wis. 499, 234 N.W. 712 (1931).

¹¹ James O. Cook and Adrian Hochstadt, Non-Economic Damages in Pet Lawsuits (2009).

¹² 2015 WI App 69, ¶18, 365 Wis. 2d 83, 870 N.W.2d 481 (Ct. App. 2015).

¹³ Id. at ¶22.

¹⁴ 2001 WI 57, 243 Wis. 2d 486, 627 N.W.2d 795.

¹⁵ See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 657, 517 N.W.2d 532 (1994).

¹⁶ Id. at ¶27.

¹⁷ 14-CV- 861 (W.D. Wis. 2016).

¹⁸ 435 U.S. 247, 254 (1978).

¹⁹ Statista, Number of dogs in the United States from 2000 to 2017 (in millions) (2017).

²⁰ DogsBite.org, 2016 U.S. Dog Bite Fatality Statistics.

²¹Insurance Information Institute, Spotlight on: dog bite liability (2017).

²² 2004 WI 62, ¶9, 272 Wis. 2d 46, 680 N.W.2d 345.

²³ Id. at ¶15.

²⁴ Gonzales v. Wilkinson, 68 Wis. 2d 154, 157, 227 N.W.2d 907 (1975).

²⁵ No. 2017AP1369 (Wis. App., May 16, 2018).

²⁶ 199 Wis. 2d 380, 544 N.W.2d 596 (1996).

²⁷ Wis. Stat. §§ 895.52, 895.525, and 895.524.

²⁸ Wis. Stat. §895.481.

²⁹ 93 Wis. 522, 67 N.W. 924 (1896).