Philip Smith v. University Animal Clinic, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-745

PHILIP SMITH, ET AL.

VERSUS

UNIVERSITY ANIMAL CLINIC, INC.

**********

APPEAL FROM THE
LAKE CHARLES CITY COURT
PARISH OF CALCASIEU, NO. 08-829
HONORABLE THOMAS P. QUIRK, CITY COURT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Billy Howard Ezell, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Stephen H. Vogt
P. O. Box 36
Baton Rouge, LA 70821-0036
(225) 923-3200
Counsel for Defendant/Appellee:
University Animal Clinic, Inc.

Michael Glenn Hodgkins
Bice, Palermo & Veron, LLC
P. O. Box 2125
Lake Charles, LA 70602
(337) 310-1600
Counsel for Plaintiffs/Appellants:
Philip Smith
Shannon Smith

EZELL, JUDGE.

Phillip and Shannon Smith and the University Animal Care Clinic (Clinic)

appeal the decision of the trial court in this case involving the loss of the Smiths’ pet

cat. For the following reasons, we affirm the decision of the trial court.

The facts in this case are undisputed. The Smiths boarded their five cats at the

University Animal Care Clinic from April 28 until May 5, 2007. The identification

tags on one of their cats, Girlie, were inadvertently switched with another cat. This

ultimately led to Girlie being delivered to another client. Girlie then escaped from

that client’s home and was never found, despite great efforts by Ms. Smith and Clinic

employees. The Clinic waived the $800 charges the Smiths incurred in boarding,

examining, and vaccinating all their cats. The Smiths then filed this suit seeking

emotional damages resulting from Girlie’s loss.

The trial court ruled that the Smiths were entitled to emotional damages under

La.Civ.Code art. 1998, but that the damages were not greater than the $800 the Clinic

had already waived. Accordingly, no damages were awarded. Both the Smiths and

the Clinic appeal the trial court’s decision. The Smiths claim that the trial court’s

award was abusively low for the damages suffered. The Clinic claims that the trial

court erred in finding that the Smiths were entitled to any damages under

La.Civ.Code art. 1998.

We will first address the Clinic’s claims that the trial court erred in awarding

any damages under La.Civ.Code art. 1998. Louisiana law is clear that a domestic

animal is considered corporeal movable property. Holland v. Teague, 43,496

(La.App. 2 Cir. 9/17/08), 996 So.2d 325.

Louisiana courts have also recognized that plaintiffs, without regard to
physical injury, may recover for emotional distress and inconvenience
resulting from damage to their property, but only in the following four
categories of cases: (1) when the property was damaged by an

1

intentional or illegal act; (2) when the property was damaged by acts
giving rise to strict or absolute liability; (3) when the property was
damaged by activities amounting to a continuous nuisance; and (4)
under circumstances where the owner was present or nearby at the time
the damage occurred and suffered psychic trauma in the nature of or
similar to a physical injury as a direct result of the incident itself. Frank
L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[6]
(2nd ed.2004). The jurisprudence, however, has limited such recovery
by requiring that the emotional distress be severe and not merely the
result of the usual worry or anxiety attendant to property damage. See
Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir.1975).

Doerr v. Mobil Oil Corp., 04-1789, pp. 8-9 (La.App. 4 Cir. 6/14/06), 935 So.2d 231,

237, writ denied, 06-1760 (La. 11/3/06), 940 So.2d 664 (footnote omitted)(alteration

in original).

The Smiths’ claims do not meet any of the criteria listed above for recovery of

emotional damages for a property loss in tort, as they allege only negligence on the

part of the Clinic. Nor did the Clinic’s actions meet any of the remaining criteria

listed above. However, the Smiths argue that a new, narrowly defined, contractually

based fifth exception has been created for depositaries through the legislature and the

2004 Civil Code revision. They claim that the Clinic would be liable for damages as

a depository in breach of what they allege amounts to a non-pecuniary contract under

La.Civ.Code art. 1998. After a thorough analysis of the statutes at issue, we agree

with the Smiths that they are now entitled to recover damages for mental anguish

from the Clinic.

“A deposit is a contract by which a person, the depositor, delivers a movable

thing to another person, the depositary, for safekeeping under the obligation of

returning it to the depositor upon demand.” La.Civ.Code art. 2926. Louisiana Civil

Code Article 2930 (emphasis added) reads:

When the deposit is onerous, the depositary is bound to fulfill his
obligations with diligence and prudence.

2

When the deposit is gratuitous, the depositary is bound to fulfill
his obligations with the same diligence and prudence in caring for the
thing deposited that he uses for his own property.

Whether the deposit is gratuitous or onerous, the depositary is
liable for the loss that the depositor sustains as a result of the
depositary’s failure to perform such obligations.

“The depositary is bound to use the same diligence in preserving the deposited thing

that he uses in preserving his own property, a standard of diligence that, according

to the civil code, is to be rigorously enforced when . . . he receives compensation for

his service. . . .” 6 La. Civ. L. Treatise, Law Of Obligations § 15.7 (2d ed.). “Quite

naturally, the depositary’s liability is more extensive when his services are

compensated.” 6 La. Civ. L. Treatise, Law Of Obligations § 15.8 (2d ed.).

It is clear that in boarding their pet, the Smiths entered into a contract of

deposit with the Clinic whereby they delivered property, Girlie, to the clinic for

safekeeping and return. Further, it is undisputed that the Clinic failed to return the

deposited object due to its own negligence. Accordingly, the Smiths are entitled to

damages from the Clinic under the contract of deposit. However, to determine if the

Smiths are entitled to recover the emotional distress damages they seek, we must

examine the nature of the contract created with the Clinic closer.

Louisiana Civil Code Article 1998 provides:

Damages for nonpecuniary loss may be recovered when the
contract, because of its nature, is intended to gratify a nonpecuniary
interest and, because of the circumstances surrounding the formation or
the nonperformance of the contract, the obligor knew, or should have
known, that his failure to perform would cause that kind of loss.

Regardless of the nature of the contract, these damages may be
recovered also when the obligor intended, through his failure, to
aggrieve the feelings of the obligee.

Comment (b) to La.Civ.Code art. 1998 states that “‘Nonpecuniary loss’ means that

which is known in continental doctrine as ‘dommage moral,’ that is, damage of a

3

moral nature which does not affect a ‘material’ or tangible part of a person’s

patrimony.” See Litvinoff, ‘Moral Damages,’ 38 La.L.Rev. 1 (1977).” Comment (c)

to Article 1998 (first emphasis ours) goes on:

A contract made for the gratification of a nonpecuniary interest
means one intended to satisfy an interest of a spiritual order, such as a
contract to create a work of art, or a contract to conduct scientific
research, or a contract involving matters of sentimental value. In such
a case, upon the obligor’s failure to perform, the obligee may recover the
damages he has sustained of a nonpecuniary or “moral”nature. See
Litvinoff, supra. Thus, if a horse is bought for the purpose of showing
it at an exhibition, the purchaser is entitled to recover for his
disappointment and inconvenience if the contract is rescinded because
of a redhibitory vice.

We find that the contract of deposit made between the Smiths and the Clinic

to board Girlie was made for the gratification of a nonpecuniary interest and, because

of circumstances surrounding its formation, the Clinic knew or should have known

that its failure to perform would cause a nonpecuniary loss. The contract to board

Girlie went beyond simply paying someone to feed a cat, it clearly involved

something of a sentimental nature. The Clinic not only knew of this, but also

advertised its services by noting the “tender loving care (such as brushing and

cuddling)” they provided to keep boarded pets “happy and active.” The Clinic noted

that this special attention was required because “pets are like our children.” The

Clinic’s website even included a special section dealing with the loss of a pet, noting:

The loss of any close friend can be devastating, and pets can be among
our closest companions. A pet frequently provides unconditional love,
emotional security, and loyalty. Routine activities with an animal
companion often provide structure, fun, relaxation, and social contact in
our daily lives. The death of a cherished pet can mean the loss of an
entire lifestyle as well as a devoted companion.

Because of the nature of the business the Clinic was in, and more clearly, the manner

in which it held itself out to the public, the Clinic certainly knew that the boarding

services it provided were rooted in reasons of a sentimental nature and that a failure

4

to render services properly would result in a non-pecuniary loss. As such, the Smiths

are entitled to recover non-pecuniary damages from the Clinic under La.Civ.Code art.

1998 for the Clinics breach of the boarding contract.

Having determined that the Smiths were entitled to recover damages for their

loss, we now turn to their assertion that the trial court erred in awarding only $800 in

damages.

It is well-settled that a judge or jury is given great discretion in its
assessment of quantum, both general and special damages. Louisiana
Civil Code article 2324.1 provides: “In the assessment of damages in
cases of offenses, quasi offenses, and quasi contracts, much discretion
must be left to the judge or jury.” Furthermore, the assessment of
quantum, or the appropriate amount of damages, by a trial judge or jury
is a determination of fact, one entitled to great deference on review.

Guillory v. Lee, 09-75, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116.

In the initial determination of excessiveness or insufficiency, an
examination of prior awards has a limited function if indeed the facts
and circumstances of the prior awards are closely similar to the present.
The prior awards may serve as an aid in this determination only where,
on an articulated basis, the present award is shown to be greatly
disproportionate to past awards (not selected past awards, but the mass
of them) for (truly) “similar” injuries, see Coco v. Winston Industries,
Inc., 341 So.2d 332 (La.1977). However, absent an initial determination
the trial court’s very great discretion in the award of general damages
has been abused under the facts of this case, the reviewing court should
not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314
(La.1979).

Rando v. Anco Insulations Inc., 08-1163, p. 41 (La. 5/22/09), 16 So.3d 1065, 1094.

Louisiana cases dealing with emotional damage awards for loss or injury to

animals or other property are few and far between. However, the awards contained

in those that do exist are nominal. See Deblieux v. P. S. & Sons Painting, Inc., 405

So.2d 600 (La.App. 3 Cir. 1981) (wherein $3,000 was awarded for the loss of twenty-

five cattle); Quave v. Bardwell, 449 So.2d 81 (La.App. 1 Cir. 1984) ($2,500 awarded

for the unprovoked and intentional shooting of a dog); Kling v. U.S. Fire Ins. Co., 146

So.2d 635 (La.App. 1 Cir. 1962) (plaintiff was entitled to $100 for loss of his terrier);

5

Brown v. Crocker, 139 So.2d 779, (La.App. 2 Cir. 1962)(award of $250 for shock and

mental anguish of minor observing pain and suffering of his horse that was shot).

These amounts are in line with such awards throughout the nation, which generally

range between $500 and $2,000. Debra Squires-Lee, In Defense of Floyd:

Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059 (1995).

We find the award made by the trial court to be in line with awards made for similar

losses in this state as well as nationally. More importantly, we do not find it to be an

abuse of the trial court’s vast discretion.

For the above reasons, we hereby affirm the decision of the trial court. Costs

of this appeal are to be assessed to University Animal Care Clinic, including $156.50

for the deposition of Roberta Dowden.

AFFIRMED.

6