Joyce McDougall’s Maltese-poodle cross was shaken to death by a much larger dog belonging to a neighbour, Charlot Lamm. McDougall claimed that Lamm had been negligent in not restraining her dog, but also sought damages for emotional distress arising from watching the demise of her pooch. The defence to the second claim was oldschool: a dog is personal property and there is no claim at law for emotional distress arising from its destruction. McDougall argued that the principles which allow damages for emotional distress at witnessing the death of a (human) loved one should be extended to situations involving pets, given their special status in people’s lives.
Hoens J of the New Jersey supreme court took the traditional view and affirmed the lower court’s rejection of McDougall’s emotional distress claim: McDougall v Lamm (NJSC, 31 July 2012). While there are cases from some US states (Florida, Hawaii and Louisiana) which have recognised such a claim, the majority of state courts have declined to do so. Pets are still personal property, although it may be possible to recover their ‘subjective’ (affective) value rather than mere replacement cost. But to allow an emotional distress claim would be unsound for reasons of public policy and fairness: if the grisly end of a pet gives rise to damages for emotional distress, what about non-economic damages for the loss of other types of personalty, and how are these losses to be quantified?