On April 7, 2016, the Wisconsin Court of Appeals issued a decision regarding the proper measure of damages when a family dog was attacked and severely injured by a larger dog owned by neighbors. This issue had been expressly left open by the Wisconsin Supreme Court in Rabideau v. City of Racine, 2001 WI 57.

In Smith v. Wisconsin Mutual Insurance Company, 2015-AP-1499, the plaintiff’s West Highland Terrier named Ella was viciously attacked by the neighbors’ German Shepherd. Ella’s family incurred significant veterinary bills and related costs in saving Ella’s life.

Ella’s family requested damages totaling over $12,000, which they argued were subject to doubling under Wisconsin’s dog bite statute, section 174.02(1)(b). This statute provides that “the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.”

The German Shepherd had attacked another dog in the neighborhood approximately two and a half years before the attack on Ella. Rather than award Ella’s family the “full amount of damages,” the court limited damages to the “cost of a replacement dog of the same breed.”

The court of appeals stated in rather unsympathetic terms: “dogs are personal property.” “[W]hen it comes to damaged personal property that is repairable, the general rule is that recovery for property damages is limited to the lesser of (1) the diminution in value and (2) the cost of repair, but that, in any event, recovery is limited to pre-injury fair market value.”

These rather harsh statements by the court of appeals are somewhat surprising given the sympathetic tone of the Wisconsin Supreme Court in Rabideau:

At the outset, we note that we are uncomfortable with the law's cold characterization of a dog, such as Dakota, as mere “property.” Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.

Relying on this language, Ella’s family argued that family dogs are more like heirlooms, keepsakes, and family pictures that have greater emotional and sentimental value than the value they have on the open market. In valuing items like keepsakes and family pictures, courts can give consideration to the description of the article, its original cost, and facts relative to its association with the owner or family, as well as the opinion of the owner. Harvey v. Wheeler Transfer & Storage Co., 227 Wis. 36, 277 N.W.627 (1938).

The court of appeals flatly rejected this argument: “We decline to extend Wisconsin’s ‘keepsakes’ rule to pets.” “It seems to us that there are obvious and significant differences between an unrepairable and lost forever keepsake and an injured but ‘repairable’ pet.”

It should be noted that Ella was not “repaired.” One of the briefs stated: “At this time, she is unable to take long walks, and she sways and sometimes drags her foot due to the spinal cord damage.” Moreover, it is very likely that Ella has emotional injuries after such a brutal, vicious attack that can never be “repaired.”

In addition to the argument about family keepsakes, Ella’s family pointed to cases from Kansas and California that authorize damages for reasonable veterinary care and do not limit such damages to the “market value” of the animal. The court of appeals was not persuaded by these cases and limited damages to the cost of a replacement puppy of the same breed.

It is difficult to predict whether this rule will distinguish between purebred dogs and mixed breed dogs. It is the opinion of the author of this blog that all dogs are priceless and that the proper measure of damages should at a minimum compensate for the money spent on veterinary care and other incidental costs. Ella’s family has until May 9, 2016 to seek review by the Wisconsin Supreme Court.

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