NJ Supreme Court Does Not Allow Emotional Distress Claim for Witnessing Death of Pet

August 9, 2012

While acknowledging that people may form close bonds with their pets, the New Jersey Supreme Court refused to permit recovery for emotional distress damages stemming from the death of a pet in McDougall v. Lamm, No. A-99-10.  The Court declined to expand the grounds for relief set forth in Portee v. Jaffee, 84 N.J. 88 (1980), the seminal case regarding emotional distress claims arising out of witnessing a traumatic death.

In McDougall, the plaintiff was walking along the street with her nine-year old dog, a maltipoo, when the defendant’s dog, a much larger breed, ran toward plaintiff’s dog, grabbed it by the neck and shook it several times before dropping the maltipoo and running away. Plaintiff’s dog ultimately died. Prior to trial, plaintiff’s emotional distress claim was dismissed via a motion for partial summary judgment, and the trial court limited plaintiff’s claim for damages to the dog’s intrinsic value. Plaintiff appealed the dismissal of her emotional distress claim, and the Appellate Division affirmed the decision of the trial court.

The Supreme Court granted certification to address the question of whether pert owners should be entitled to recover for emotional distress caused by witnessing the traumatic death of a pet. The Court’s analysis focused on the second of the four elements a plaintiff must prove to establish a claim for bystander recovery outlined in Portee: 1) death or serious physical injury of another caused by a defendant’s negligence; 2) a marital or intimate, familial relationship between the injured party and the plaintiff; 3) observation of the death or injury at the scene; 4) resulting emotional distress.  The Court found that despite strong, emotional ties between owners and their companion pets, these bonds do not fall within the limited kinds of relationships permitted to recover Portee damages. In fact, the Court stated that because case law restricts recovery for witnessing the death of most humans, it would make little sense to allow plaintiff to pursue a claim for emotional distress over the loss of her dog.

Additionally, the Court noted that expanding Portee to include emotional distress claims based on the death of a pet would contradict existing statutes regulating dog owners and dangerous dogs, and the Wrongful Death Act, which limits recovery for wrongful death to money damages. Finally, the Court explained that an alternate ruling would create a class of pet owners, companion pets and analogous human relationships both unforeseeable and not readily identifiable.

–Allison Krilla, Esq.