|||SUPREME COURT OF WISCONSIN
|||Case No. 99-3263
|||2001 WI 57, 2001.WI.0000616 <http://www.versuslaw.com>
|||June 12, 2001
|||JULIE L. RABIDEAU, PLAINTIFF-APPELLANT-PETITIONER,
CITY OF RACINE, DEFENDANT-RESPONDENT.
|||Attorneys: For the plaintiff-appellant-petitioner there were briefs by
Alan D. Eisenberg and Law Offices of Alan D. Eisenberg, Milwaukee, and oral
argument by Alan D. Eisenberg. For the defendant-respondent there was a
brief and oral argument by W. Scott Lewis, assistant city attorney.
|||The opinion of the court was delivered by: William A. Bablitch, J.
|||REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 238 Wis. 2d
96, 617 N.W.2d 678 (Ct. App. 2000-Unpublished)
|||Oral Argument: February 28, 2001
|||Source of APPEAL COURT: Circuit COUNTY: Racine JUDGE: Allan B. Torhorst
|||JUSTICES: ABRAHAMSON, C.J., concurs (opinion filed).
|||REVIEW of a decision of the Court of Appeals. Affirmed in part, reversed
in part and remanded.
|||¶1. Dakota was shot by a City of Racine police officer. He subsequently
died from the injury. Dakota lived with Julie Rabideau (Rabideau), who witnessed
the events leading to his death. Rabideau subsequently filed a claim for
damages against the City of Racine (the City). Racine County Circuit Court
Judge Allan B. Torhorst granted summary judgment to the City, and the court
of appeals affirmed.*fn1
|||¶2. The primary question presented in this case is whether Rabideau is
entitled to damages for emotional distress. Although the question of whether
or not a bystander may recover damages after witnessing an accident is a
legal question that this court has previously addressed, this particular
case is distinguishable from others: Dakota was a dog, a companion to Rabideau.
|||¶3. At the outset, we note that we are uncomfortable with the law's cold
characterization of a dog, such as Dakota, as mere "property."*fn2
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.*fn3
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.
|||¶4. The association of dog and human is longstanding. Dogs have been a
part of human domestic life since 6,300 B.C. Debra Squires-Lee, In Defense
of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L.
Rev. 1059, 1064 (1995). Archaeologists have uncovered a 12,000-year-old
burial site in which a human being and a dog lay buried together. "The
arm of the person was arranged on the dog's shoulder, as if to emphasize
the bonds that existed between these two individuals during life."
Id. (internal quotation marks and footnote omitted). Dogs are so much a
part of the human experience that we need not cite to authority when we
note that dogs work in law enforcement, assist the blind and disabled, perform
traditional jobs such as herding animals and providing security, and, of
course, dogs continue to provide humans with devoted friendship.
|||¶5. Nevertheless, the law categorizes the dog as personal property despite
the long relationship between dogs and humans. To the extent this opinion
uses the term "property" in describing how humans value the dog
they live with, it is done only as a means of applying established legal
doctrine to the facts of this case.
|||¶6. Two theories are proffered by Rabideau as grounds for the recovery
of emotional damages: negligent infliction of emotional distress and intentional
infliction of emotional distress. As to the first, as a predicate matter
to bringing a claim for damages based upon the tort of negligent infliction
of emotional distress the plaintiff must be related to the victim as spouse,
parent-child, grandparent-grandchild, or sibling.*fn4
Because the relationship between Rabideau and Dakota did not fall within
one of these categories, we find that she cannot maintain a claim on this
|||¶7. We further conclude that Rabideau cannot maintain a claim for recovery
for the emotional distress caused by negligent damage to her property. Our
decision is based upon well-established public policy criteria.*fn5
We are particularly concerned that were such a claim to go forward, the
law would proceed upon a course that had no just stopping point. Humans
have an enormous capacity to form bonds with dogs, cats, birds and an infinite
number of other beings that are non-human. Were we to recognize a claim
for damages for the negligent loss of a dog, we can find little basis for
rationally distinguishing other categories of animal companion.
|||¶8. Rabideau's second theory is based upon intentional infliction of emotional
distress. We concur with the court of appeals that Rabideau's complaint
cannot survive summary judgment when examined within the framework of set
forth in Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963).
|||¶9. In addition to these claims we address three additional issues. First,
we conclude that Rabideau's complaint, liberally read, encompasses a claim
for damages for property loss.
|||¶10. Second, we find that genuine issues of material fact exist as to
whether Officer Thomas Jacobi was entitled as a matter of law to shoot and
kill Dakota. See Wis. Stat. § 174.01 (1997-98).*fn6
Accordingly, we reverse the circuit court's grant of summary judgment on
the basis of § 174.01.
|||¶11. Third, we reverse the determination by the circuit court that this
complaint was frivolous. We conclude that Rabideau's complaint for damages
for the intentional infliction of emotional distress was one that could
properly be brought, although the elements for that claim were not satisfied
so as to survive a motion for summary judgment. As to Rabideau's claim for
damages based upon the negligent infliction of emotional distress, her brief
to the court of appeals and this court set forth a good faith argument for
an extension of the law. Under these circumstances a finding of frivolousness
|||Standard of Review
|||¶12. In this case we are reviewing the circuit court's grant of summary
judgment to the City.*fn7 This presents
a question of law that we review de novo. Strasser v. Transtech Mobile Fleet
Serv., 2000 WI 87, ¶28, 236 Wis. 2d 435, 613 N.W.2d 142. Pursuant to Wis.
Stat. § 802.08(2), summary judgment shall be granted if there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law. "In analyzing whether there are genuine issues
of material fact, we draw all reasonable inferences in favor of the nonmoving
party." Strasser, 2000 WI 87 at ¶32.
|||¶13. We begin our analysis by briefly reviewing the facts. Rabideau and
Officer Jacobi were neighbors. On March 31, 1999, Officer Jacobi had just
returned home. Across the street, Rabideau was returning home as well. Dakota
jumped out of Rabideau's truck. He crossed the street to the Jacobi house
where Jed, the Jacobi's Chesapeake Bay retriever, was in the yard.
|||¶14. There is significant disagreement between the parties concerning
what subsequently occurred. The City argued that Dakota came onto the Jacobi
property and attacked Jed. Officer Jacobi, it is contended, shouted at Dakota
to no effect. The City argues that Officer Jacobi, fearing for the safety
of Jed, and for the safety of his wife and child who were nearby, fired
a number of shots with his service revolver. Dakota moved toward the street
and turned his head and was snarling. Officer Jacobi, believing the dog
was about to charge, fired a third time and struck Dakota.
|||¶15. On the other hand, Rabideau contends that Dakota was sniffing Jed,
not biting or acting aggressively. She asserts that she called Dakota and
was crossing the street to retrieve him when shots rang out.
|||¶16. Although both parties agree that three shots were fired, Rabideau
maintains that Dakota was stepping off the curb toward her when he was hit
by Officer Jacobi's second shot. Rabideau asserts that while Dakota was
struggling to crawl away, Officer Jacobi fired again and missed.
|||¶17. Two days after the shooting occurred, Rabideau was informed that
Dakota died. Upon hearing this news, she collapsed and was given medical
|||¶18. Rabideau filed a complaint in small claims court, which stated: "City
of Racine Police Officer Thomas Jacobi shot and killed my dog, Dakota, and
caused me to collapse and require medical attention."
|||¶19. The circuit court and the court of appeals both determined that Rabideau's
complaint set forth a claim for emotional distress. The circuit court addressed
this complaint as one asserting a claim of negligent infliction of emotional
distress. The court of appeals addressed both negligent infliction of emotional
distress and intentional infliction of emotional distress. In this review,
we will address both claims.
|||¶20. Rabideau argues that the tort of negligent infliction of emotional
distress to a bystander should encompass the facts of this case. Our tort
law recognizes a claim for damages where a bystander suffers great emotional
distress after witnessing an accident or its gruesome aftermath involving
death or serious injury to a close relative. See Bowen v. Lumbermens Mut.
Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). The elements of the claim
are: "'(1) that the defendant's conduct [in the underlying accident]
fell below the applicable standard of care, (2) that the plaintiff suffered
an injury [severe emotional distress], and (3) that the defendant's conduct
was a cause-in-fact of the plaintiff's injury.'" Wis JI--Civil 1510
Comment (quoting Bowen, 183 Wis. 2d at 632.) Rabideau's complaint sets forth
|||¶21. Nevertheless, even if a plaintiff sets forth the elements of a negligence
claim, a court may determine that liability is precluded by public policy
considerations. Gritzner v. Michael R., 2000 WI 68, ¶26, 235 Wis. 2d 781,
611 N.W.2d 906. Before a court makes such a determination, it is typically
the better practice to submit the case to the jury. Id. If, however, the
facts of the case are not complex and the attendant public policy issues
are presented in full, then this court may determine before trial if liability
is precluded by public policy. Id. Accordingly, we turn next to a consideration
of the public policy concerns presented by this issue.
|||¶22. The Bowen analysis noted that two concerns have historically shaped
the development of the tort of negligent infliction of emotional distress.
These concerns are (1) establishing that the claim is genuine, and (2) ensuring
that allowing recovery will not place an unfair burden on the tortfeasor.
Bowen, 183 Wis. 2d at 655.
|||¶23. Where, as in the present case, the issue presented is negligent infliction
of emotional distress on a bystander, Bowen identified three public policy
factors to be applied in an effort to establish that the claim is genuine,
the tortfeasor is not unfairly burdened, and that other attendant public
policy considerations are not contravened. Id. at 655-58. First, the victim
must have been killed or suffered a serious injury. Second, the plaintiff
and victim must be related as spouses, parent-child, grandparent-grandchild
or siblings. Third, "the plaintiff must have observed an extraordinary
event, namely the incident and injury or the scene soon after the incident
with the injured victim at the scene." Id. at 633.
|||¶24. We need not address each of these factors because it is plain that
the victim in this case is not related to Rabideau as a spouse, parent,
child, sibling, grandparent or grandchild. Accordingly, she cannot maintain
a claim for negligent infliction of emotional distress.
|||¶25. Rabideau urges that we extend this category to include companion
animals. In her words, "[a]nyone who has owned and loved a pet would
agree that in terms of emotional trauma, watching the death of a pet is
akin to losing a close relative." Further, she contends that we need
not engage in an analysis of whether companion animals are "family,"
but should instead examine the rationale supporting the limitation to certain
family members. Rabideau argues that the limitation of claims to family
members is a means of assuring forseeability as well as a reasonable limitation
of the liability of a negligent tortfeasor. According to Rabideau, the bond
between companion animals and humans is one that is sufficiently substantial
to ensure that these concerns are met.
|||¶26. We agree, as we must, that humans form important emotional connections
that fall outside the class of spouse, parent, child, grandparent, grandchild
or sibling. We recognized this in Bowen,*fn8
and repeat here, that emotional distress may arise as a result of witnessing
the death or injury of a victim who falls outside the categories established
in tort law. However, the relationships between a victim and a spouse, parent,
child, grandparent, grandchild or sibling are deeply embedded in the organization
of our law and society. The emotional loss experienced by a bystander who
witnessed the negligent death or injury of one of these categories of individuals
is more readily addressed because it is less likely to be fraudulent and
is a loss that can be fairly charged to the tortfeasor. The emotional harm
occurring from witnessing the death or injury of an individual who falls
into one of these relationships is serious, compelling, and warrants special
recognition. Id. at 657.
|||¶27. We concluded in Bowen that for the present time these tort claims
would be limited; we reach the same conclusion in this case. We note that
this rule of non-recovery applies with equal force to a plaintiff who witnesses
as a bystander the negligent injury of a best friend who is human as it
does to a plaintiff whose best friend is a dog.
|||¶28. Had Rabideau been a bystander to the negligent killing of her best
human friend, our negligence analysis would be complete. However, as we
have previously noted the law categorizes dogs as property. We turn, therefore,
to consider whether Rabideau can maintain a claim for negligent infliction
of emotional distress arising from property loss.
|||¶29. In Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis.
2d 138, 145, 549 N.W.2d 714 (1996), we concluded that under Wisconsin's
formulation of tort law, "it is unlikely that a plaintiff could ever
recover for the emotional distress caused by negligent damage to his or
her property." This conclusion was founded upon public policy.*fn9
|||¶30. The public policy analysis in Kleinke drew upon the reasoning of
Bowen. In Bowen this court listed six public policy factors addressed by
courts when considering the authenticity and fairness of an emotional distress
claim. These various public policy considerations set forth in Bowen, and
cited in Kleinke, are:
|||(1) Whether the injury is too remote from the negligence; (2) whether
the injury is wholly out of proportion to the culpability of the negligent
tortfeasor; (3) whether in retrospect it appears too extraordinary that
the negligence should have brought about the harm; (4) whether allowance
of recovery would place an unreasonable burden on the negligent tortfeasor;
(5) whether allowance of recovery would be too likely to open the way to
fraudulent claims; or (6) whether allowance of recovery would enter a field
that has no sensible or just stopping point. Kleinke, 202 Wis. 2d at 144-45
(quoting Bowen, 183 Wis. 2d at 655).
|||¶31. In this case we need only examine one of the Bowen - Kleinke factors
to conclude that there is no basis for recovery here. This factor concerns
whether allowance of recovery would enter a field that has no sensible or
just stopping point. Rabideau suggests that limiting liability to the human
companion of a companion animal who is killed may satisfy this concern.
We find this proposed resolution unsatisfactory. First, it is difficult
to define with precision the limit of the class of individuals who fit into
the human companion category. Is the particular human companion every family
member? the owner of record or primary caretaker? a roommate? Second, it
would be difficult to cogently identify the class of companion animals because
the human capacity to form an emotional bond extends to an enormous array
of living creatures. Our vast ability to form these bonds adds to the richness
of life. However, in this case the public policy concerns relating to identifying
genuine claims of emotional distress, as well as charging tortfeasors with
financial burdens that are fair, compel the conclusion that the definition
suggested by Rabideau will not definitively meet public policy concerns.
|||¶32. Based upon all the above, we conclude that Rabideau cannot maintain
a claim for the emotional distress caused by negligent damage to her property.
|||¶33. Next, we consider Rabideau's claim of intentional infliction of emotional
distress. Four elements must be established for a plaintiff to maintain
such a claim. A plaintiff must demonstrate (1) that the defendant's conduct
was intentioned to cause emotional distress; (2) that the defendant's conduct
was extreme and outrageous; (3) that the defendant's conduct was a cause-in-fact
of the plaintiff's emotional distress; and (4) that the plaintiff suffered
an extreme disabling emotional response to the defendant's conduct. Alsteen,
21 Wis. 2d at 359-60; Wis JI--Civil 2725. We agree with the court of appeals'
conclusion that summary judgment is warranted here.
|||¶34. The first Alsteen element requires the plaintiff to demonstrate that
the defendant acted with the intent to cause emotional harm. "One who
by extreme and outrageous conduct intentionally causes severe emotional
distress to another is subject to liability for such emotional distress
and for bodily harm resulting from it." Id. at 358 (emphasis omitted).
In this case, there is no material issue of fact in the record that suggests
that Officer Jacobi acted for the purpose of causing Rabideau emotional
|||¶35. Rabideau argues that she need only show that Officer Jacobi acted
intentionally when he shot Dakota. She contends that by shooting Dakota
while she was present, Officer Jacobi would have known that his act would
cause her severe emotional distress. Rabideau argues that such knowledge
is tantamount to intentionally causing severe emotional distress because
"a person is presumed to intend 'the natural and probable consequences
of his acts voluntarily and knowingly performed.'" Haessley v. Germantown
Mut. Ins. Co., 213 Wis. 2d 108, 118, 569 N.W.2d 804 (Ct. App. 1997) (quoting
State v. Gould, 56 Wis. 2d 808, 814, 202 N.W.2d 903 (1973)).
|||¶36. The presumption cited by Rabideau from Haessley is generally applied
in criminal cases. See Hawpetoss v. State, 52 Wis. 2d 71, 80, 187 N.W.2d
823 (1971). Rabideau's application in this case of the general rule that
an accused is presumed to intend the natural and probable consequences of
his act obfuscates what is required by the first element of this cause of
action. The plaintiff must establish that the purpose of the conduct was
to cause emotional distress. There is no question that Officer Jacobi intended
to fire his weapon at Dakota. However, there is no evidence to indicate
he did so to cause emotional distress to Rabideau. Certainly that was a
by-product, but that is insufficient standing alone. This is a limitation
upon the cause of action for the intentional infliction of emotional distress.
Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 694-95, 271 N.W.2d 368
(1978). There must be something more than a showing that the defendant intentionally
engaged in the conduct that gave rise to emotional distress in the plaintiff;
the plaintiff must show that the conduct was engaged in for the purpose
of causing emotional distress. While intent may be evidenced by inferences
from words, conduct or the circumstances in which events occurred, in the
present case there is no asserted fact as to this element. Accordingly,
we are not persuaded by Rabideau's argument, and we affirm the court of
appeals' grant of summary judgment.
|||¶37. Although we affirm the court of appeals' decision as to Rabideau's
claims for damages based upon emotional distress, we hold that the court
erred in its conclusion that Rabideau's claim did not seek damages for lost
property. A claim for damages for property loss as the result of Officer
Jacobi's action is the most conventional claim Rabideau could have brought,
and is without doubt the most widely recognized claim that arises when an
animal is killed. See 1 Dan B. Dobbs, Law of Remedies § 5.15(3), at 898
(2d ed. 1993); Robin Cheryl Miller, Annotation, Damages for Killing or Injuring
Dog, 61 A.L.R.5th 635 (1998). We therefore hold that Rabideau's complaint,
liberally construed, also encompassed a demand for damages for property
loss. We decline to further address the proper means to measure this property
loss or whether other elements, such as veterinary expenses incurred in
treating a companion animal's injuries, may be recovered. These issues were
not thoroughly briefed by both parties. See State v. Bodoh, 226 Wis. 2d
718, 737, 595 N.W.2d 330 (1999) (issues not raised or considered in the
trial court will not be considered for the first time on appeal unless the
new issue is a question of law that the parties have thoroughly briefed,
and there are no disputed issues of fact regarding the new issue).
|||¶38. The next issue we consider concerns the circuit court's grant of
summary judgment on the basis of Wis. Stat. § 174.01. As an affirmative
defense, the City asserted that Officer Jacobi was privileged to shoot and
kill Dakota pursuant to this statute. Section 174.01 provides as follows:
|||(1) Killing a dog. (a) Except as provided in par. (b), a person may intentionally
kill a dog only if a person is threatened with serious bodily harm by the
|||1. Other restraining actions were tried and failed; or
|||2. Immediate action is necessary.
|||(b) A person may intentionally kill a dog if a domestic animal that is
owned or in the custody of the person is threatened with serious bodily
harm by the dog and the dog is on property owned or controlled by the person
|||1. Other restraining actions were tried and failed; or
|||2. Immediate action is necessary.
|||(2) Inapplicable to officers, veterinarians and persons killing their
own dog. This section does not apply to an officer acting in the lawful
performance of his or her duties under s. 29.931 (2)(b), 95.21, 174.02(3)
or 174.046(9), or to a veterinarian killing a dog in a proper and humane
manner or to a person killing his or her own dog in a proper and humane
|||(3) Liability and penalties. A person who violates this section:
|||(a) Is liable to the owner of the dog for double damages resulting from
|||(b) Is subject to the penalties provided under s. 174.15; and
|||(c) May be subject to prosecution, depending on the circumstances of the
case, under s. 951.02.
|||¶39. The court of appeals concluded that the circuit court improperly
applied summary judgment procedures when determining whether Officer Jacobi
was privileged to shoot Dakota under Wis. Stat. § 174.01. However, the court
of appeals further determined that the issue was moot because it determined
that even if Officer Jacobi's actions were not privileged, Rabideau could
not recover damages pursuant to her complaint. Rabideau, No. 99-3263, unpublished
slip op. at 9-10 (Wis. Ct. App. June 7, 2000).
|||¶40. Based upon our examination of the record we agree that summary judgment
on this issue was improper because material facts pertaining to the statute
are in dispute. For example, although the City asserts that Dakota and Jed
were fighting, Rabideau contends that they were not in a fight. Rabideau
asserts that Dakota was not threatening Officer Jacobi, his wife or his
child. The City disagrees. Rabideau claims Dakota was on the curb; the City
contends the dogs were in Officer Jacobi's yard.
|||¶41. We also note that the exemption for police officers provided in Wis.
Stat. § 174.01(2) requires that the officer is acting pursuant to one of
a variety of statutes. However, the record does not establish that Officer
Jacobi was acting under any of the enumerated statutory provisions.
|||¶42. We disagree with the court of appeals' conclusion that the granting
of summary judgment on the basis of this statute was moot. Wisconsin Stat.
§ 174.01(3) provides that an individual who intentionally kills a dog in
violation of the statute is liable to the owner for double damages. Therefore,
because material facts are in dispute, the circuit court's order of summary
judgment pursuant to § 174.01(1) is reversed.
|||¶43. Finally, Rabideau asserts that the circuit court erred by finding
her claim frivolous and awarding attorney fees and costs to the City of
Racine. We agree.
|||¶44. The circuit court made a finding of frivolousness grounded upon Wis.
Stat. § 814.025(3)(b).*fn10 The circuit
court noted that in this case two identical small claims complaints were
filed. One complaint was signed by Julie Rabideau and date stamped July
28, 1999, at 3:30 p.m. A second complaint was signed by her attorney and
date stamped July 28, 1999, at 3:33 p.m. The circuit court held that the
attorneys for Rabideau were to be responsible for all costs and fees incurred
by the City. Under § 814.025(3)(b), costs for frivolous claims may be awarded
upon a finding that the party or attorney "knew, or should have known"
that the claim was "without any reasonable basis in law or equity."
|||¶45. Courts tread carefully when considering a claim of frivolous action,
for the "ingenuity, foresightedness and competency of the bar must
be encouraged and not stifled." Radlein v. Industrial Fire & Cas.
Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). The statute reflects
this policy by requiring the court to consider whether the party or attorney
knew the action was without any reasonable basis in law, and could not be
supported by a good faith argument for an extension, modification or reversal
of existing law. *fn11 As to this second
step, the circuit court is to consider each of the alternative possibilities
of a good faith argument, that is, was the existing law ready for an extension,
modification or reversal. If the law is not ready for an extension, modification
or reversal, the court is to consider whether the argument for the change
was made in good faith. Id. at 612.
|||¶46. An analysis of frivolousness under Wis. Stat. § 814.025(3)(b) presents
a mixed question of fact and law. State v. State Farm Fire & Cas. Co.,
100 Wis. 2d 582, 601-02, 302 N.W.2d 827 (1981). A determination of what
the party knew or should have known is a question of fact. Id. A conclusion
as to whether what was known, or should have been known, warrants a finding
of frivolousness is a question of law which we review de novo. Stern v.
Thompson & Coates, Ltd., 185 Wis. 2d 220, 241, 517 N.W.2d 658 (1994).
In this case, the fundamental facts were sufficiently established to render
our analysis here to be solely a question of law. This analysis is based
upon an objective standard: "'whether the attorney knew or should have
known that the position taken was frivolous as determined by what a reasonable
attorney would have known or should have known under the same or similar
circumstances.'" Id. (quoting Sommer v. Carr, 99 Wis. 2d 789, 799,
299 N.W.2d 856 (1981)). All doubts on this issue are resolved in favor of
the party or attorney. Zinda v. Krause, 191 Wis. 2d 154, 176, 528 N.W.2d
55 (Ct. App. 1995); In re Paternity of James A.O., 182 Wis. 2d 166, 184,
513 N.W.2d 410 (Ct. App. 1994).
|||¶47. In this review, we have concluded that Rabideau's complaint, liberally
construed, encompassed a claim for property loss. Additionally, we have
concluded that Rabideau's complaint for damages for the intentional infliction
of emotional distress was properly brought, although the elements for that
claim were not satisfied. Finally, as to Rabideau's claim for damages based
upon the negligent infliction of emotional distress, her brief to the court
of appeals, as well as her arguments before this court, adequately defended
her position. We conclude that she has set forth a substantial argument
in good faith for an extension, modification or reversal of existing law.
As a result, we reverse the circuit court's finding of frivolousness.*fn12
|||By the Court. -- The decision of the court of appeals is affirmed in part,
reversed in part, and the cause remanded to the circuit court.
|||¶48. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).
|||I agree with the majority opinion's conclusions about intentional infliction
of emotional distress, negligent infliction of emotional distress, property
damage, and the issue of frivolousness. The only cause of action in this
case is for property loss.
|||¶49. I wish to emphasize that this case is about the rights of a pet owner
to recover in tort for the death of her dog. Scholars would not classify
this case as one about animal rights.
|||¶50. Professor Martha Nussbaum has pointed out that one's love of a pet
should not be mistaken for concern about the ethical rights of animals.*fn13
Professor Nussbaum explains this error as follows:
|||Commonly, we conflate two sorts of people: animal lovers and people who
are sensitive to the ethical rights of animals. This conflation is a great
error. In human life, we can easily take its measure: men may be genuine
lovers of women while treating them extremely badly. . . . Even people who
treat well the particular women they love may not care at all about women's
|||¶51. Professor Nussbaum further explains the difference between animal
lovers and proponents of animal rights by noting that while many of us have
affectionate relationships with animals such as dogs and cats and horses,
we also eat meat and eggs and wear leather, and we do not concern ourselves
with the conditions under which these goods are produced.*fn15
|||¶52. For purposes of recovery for negligent infliction of emotional distress,
this court treats the death of a dog the same as it treats injury to or
death of a best friend, a roommate, or a non-marital partner: It allows
|||¶53. Having concluded that the plaintiff's only remedy is for loss of
property, the majority opinion declines to give guidance to the circuit
court and litigants about damages for the death of the dog. This issue was
not briefed. At least one state has enacted a law that allows up to $4,000
recovery for non-economic damages such as loss of the reasonably expected
companionship, love, and affection of a pet resulting from the intentional
or negligent killing of the pet.*fn16
Such a statute allows the legislature to make a considered policy judgment
regarding the societal value of pets as companions and to specify the nature
of the damages to be awarded in a lawsuit.*fn17
|||¶54. For the reasons set forth, I write separately.
|||*fn1 Rabideau v. City of Racine, No.
99-3263, unpublished slip op. (Wis. Ct. App. June 7, 2000), was decided
by one judge pursuant to Wis. Stat. § 752.31(2)(a)(1997-98).
|||*fn2 See Campbell v. Animal Quarantine
Station, 632 P.2d 1066, 1071 n.5 (Haw. 1981) ("The law clearly views
a dog as personal property. Thiele v. City and County of Denver, 135 Colo.
442, 312 P.2d 786 (1957); Smith v. Costello, 77 Idaho 205, 290 P.2d 742
|||*fn3 This argument concerning the distinction
between companion animals and goods owned primarily for their economic value
is set forth fully in Steven M. Wise, Recovery of Common Law Damages for
Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful
Death of a Companion Animal, 4 Animal L. 33, 69-70 (1998).
|||*fn4 Bowen v. Lumbermens Mut. Cas. Co.,
183 Wis. 2d 627, 657, 517 N.W.2d 432 (1994).
|||*fn5 Kleinke v. Farmers Coop. Supply
& Shipping, 202 Wis. 2d 138, 144-45, 549 N.W.2d 714 (1996).
|||*fn6 All references to the Wisconsin
Statutes are to the 1997-98 version unless noted otherwise.
|||*fn7 The City filed a motion to dismiss
for failure to state a claim upon which relief could be granted. We agree
with the court of appeals that because the circuit court considered matters
outside the pleadings, the case should be treated as a review of a grant
of summary judgment pursuant to Wis. Stat. § 802.06(3) Rabideau, No. 99-3263,
unpublished slip op. at 3 (Wis. Ct. App. June 7, 2000).
|||*fn8 Bowen, 183 Wis. 2d at 657.
|||*fn9 At least one other court has adopted
a different approach. Hawaii permits recovery for mental distress occurring
as a result of the negligent destruction of property. Campbell, 632 P.2d
at 1071 (citing Rodrigues v. State, 472 P.2d 509 (Haw. 1970)). Based upon
this principle of Hawaiian tort law, in Campbell the Hawaii Supreme Court
allowed recovery for serious mental distress resulting when the plaintiffs'
dog died of heat prostration after being loaded into an unventillated van
on a hot afternoon, and the van was exposed directly to the sun.
|||*fn10 The circuit court based its
finding of frivolousness solely upon Wis. Stat. § 814.025. We need not address
the City's contention that standards utilized for finding frivolousness
under Wis. Stat. § 802.05 apply to § 814.025.
|||*fn11 Wisconsin Stat. § 814.025 provides
in relevant part: (1) If an action . . . is found, at any time during the
proceedings or upon judgment, to be frivolous by the court, the court shall
award to the successful party costs determined under s. 814.04 and reasonable
attorney fees. (3) In order to find an action . . . frivolous under sub.(1),
the court must find one or more of the following: . . . (b) The party or
the party's attorney knew, or should have known, that the action, special
proceeding counterclaim, defense or cross complaint was without any reasonable
basis in law or equity and could not be supported by a good faith argument
for an extension, modification or reversal of existing law.
|||*fn12 At oral argument counsel for
Rabideau raised for the first time the issue of recovering damages for loss
of companionship. Because this issue was neither raised in the petition
for review nor argued in the briefs, we do not address it.
|||*fn13 See Martha C. Nussbaum, Book
Review: Animal Rights: The Need for a Theoretical Basis, reviewing Steven
M. Wise, Rattling the Cage: Toward Legal Rights for Animals, 114 Harv. L.
Rev. 1506 (2001).
|||*fn14 Id. at 1544.
|||*fn15 Id. at 1509-10.
|||*fn16 See Tenn. Code Ann. § 44-17-403
|||*fn17 See 1 Dan B. Dobbs, Law of Remedies
§ 5.15(3), at 898-900 (2d ed. 1993) (discussing courts' varied approaches
toward damage awards in cases involving injuring or killing of a pet).
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