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For Dockets See 2013-P-0450
Appeals Court Of Massachusetts.
Irina DERESH and Arkady Degtiarov d/b/a Boston Kennels, Appellants,
v.
Marcia IRWIN and John Irwin, Appellees.
No. 2013-P-0450.
2013.
On Appeal from a Judgment of the District Court, Appellate Division
Brief of Appellant
Joseph C. Lerman, BBO # 294580, 17 Main Street, Suite 204, Watertown, MA 02472, 617-926-1635, Counsel for
Appellants Marcia Irwin and Arkady Degtiarov d/b/a Boston Kennels.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... i
STATEMENT OF THE ISSUES ... 1
STATEMENT OF THE CASE ... 1
STATEMENT OF FACTS ... 3
ARGUMENT ... 4
I. THE APPELLATE DIVISION ERRED IN HOLDING THAT A COMPANION ANIMAL IS “SPECIAL
PROPERTY” AND THEREFORE DAMAGES WERE NOT LIMITED TO THE FAIR MARKET VALUE OF THE
PROPERTY ... 4
II. THE APPELLATE DIVISION ERRED IN AFFIRMING THE DAMAGES AWARDED BY THE DISTRICT
COURT WHERE THERE WAS NO EVIDENCE THAT THE COST OF RESTORING THE IRWIN'S DOG TO ITS
PRIOR HEALTH WAS REASONABLE. ... 10
CONCLUSION ... 14
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APPENDIX
*i TABLE OF AUTHORITIES
Authority
22 American Jurisprudence, 2d, Damages, § 282 ... 5
Baer v. Tyler, 261 Mass. 138 (1927) ... 4
Bangert v. Osceola, 456 N.W. 2d 183, 190 (Iowa 1990) ... 7
Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341 (1983) ... 13
Daughen v. Fox, 539 A.2d 858 (Pa.Super. 1988) ... 7
Gillett v. Western Railroad Corporation, 90 Mass. 560 (1864) ... 7,8
Krasnecky v. Meffen, 56 Mass. App. Ct. 418 (2002) ... 11, 12,13
Massachusetts General Laws, Chapter 140, Section 155 ... 4-5
Massachusetts Port Authority v. Sciaba Construction Corporation, 54 Mass. App. Ct. 509 (2002) ... 5, 11
Naples v. Miller, Not Reported in A. 2d, 2009 WL 1163504 (Del. Super. 2009) ... 7
Newton Girl Scout Council, Inc. v. Massachusetts Transportation Authority, 335 Mass. 189 (1956) ... 6
*ii Nichols v. Sukaro Kennels, 555 N.W. 2d 689 (Iowa 1996) ... 7
Restatement, 2d, Torts, § 928 ... 5
Souceck v. Banham, 524 N.W. 2d 478(Minn.App. 1994) ... 7
Tandy Corp. v. Boston Pet Supply, Inc., 49 Mass. App. Ct. 393 (2000) ... 5
Trinity Church in the City of Boston v. John Hancock Mut. Life Ins. Co., 399 Mass. 43 (1987) ... 6,11
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Uhlein v. Cromack, 109 Mass. 273 (1872) ... 4
*1 STATEMENT OF THE ISSUES
1. Are veterinary bills for injuries suffered by a companion animal, beyond the fair market value of that companion
animal, properly included in a damages award where liability for those injuries has been established against a party?
2. If the answer to Number 1 is in the affirmative, is the party seeking such damages required to show that veterinary
bills incurred in the treatment of said injuries were reasonable?
STATEMENT OF THE CASE
This is an appeal from an award of damages made by the Newton District Court that included veterinary expenses in
the amount of Eight Thousand Six Hundred Eight and 05/100. ($8,608.05) Dollars incurred by the Appellees, Marcia
and John Irwin (hereinafter “Plaintiffs”), in treating their pet dog Peppermint. (See Appendix, pg. A20, A23).
A bench trial was held on this matter in the Newton District Court on June 7, 2011. (A20). At trial, a veterinary witness
testified as to the necessity of *2 the procedures performed in order to save Peppermint's life, and as to the fairness of
the price charged. (Transcript, pp. 38-57). On the same date as the bench trial the Court issued its Findings, Rulings
and Order that granted damages to the Plaintiffs in the amount of Eight Thousand Six Hundred Eight and 05/100
($8,608.05) Dollars. (A20-23).
The Defendants, Irina Deresh and Arkady Degtiarov (hereinafter “Defendants”) filed a timely Notice of Appeal, and
after receiving an extension for filing, proceeded with an Expedited Appeal to the Appellate Division of the District
Court. (A5). On July 11, 2012, the Appellate Division issued its Decision and Order, affirming the District Court
Judgment in all respects. (A70-74). Judgment for the Plaintiffs entered on July 30, 2012, and Defendants filed a timely
Notice of Appeal to the Appeals Court on July 31, 2012. [FN1] (A6-7).
FN1. Defendants did file a subsequent Motion to amend the computation of interest on the Judgment of July
31, 2012, which was allowed. Final Judgment entered on September 19, 2012.
*3 STATEMENT OF THE FACTS
On the afternoon of February 17, 2007, Plaintiff John Irwin was walking his pet Bishon Frise dog, Peppermint. (A21).
While in Irwin's front yard, Peppermint was attacked by an unleashed German Sheppard owned by the Defendants.
(A20-21). Plaintiff Marcia Irwin shortly thereafter transported Peppermint to Veterinary Emergency & Specialty
Center of New England in Waltham, MA. (A21).
The dog was treated for internal injuries, external bruising and multiple dog bites. (A21). Plaintiff introduced a list of
invoices as evidence that the cost for the veterinary treatments was Eight Thousand Six Hundred Eight and 05/100
($8,608.05) Dollars. (Trans. pp. 46-52). No evidence was introduced at trial as to the market value of a Bishon Frise
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dog (Trans., p. 71).
4ARGUMENT
I. THE APPELLATE DIVISION ERRED IN HOLDING THAT A COMPANION ANIMAL IS “SPECIAL
PROPERTY” AND THEREFORE DAMAGES WERE NOT LIMITED TO THE FAIR MARKET VALUE
OF THE PROPERTY.
The Appellate Division's Decision improperly applied the legal doctrine of “special purpose property” to the damages
suffered by the Plaintiffs in reaching its conclusion that the Plaintiffs were entitled to recover veterinary expenses as a
part of their damages award. This same extension of the “special purpose property” doctrine has been rejected in other
jurisdictions to consider the matter, and is contrary to Massachusetts case law that limits damages for injury to an
animal to the fair market value of the animal.
It has long been held at common law that a pet dog is property, and an owner may maintain an action against another
for the damage or destruction of that property. Baer v. Tyler, 261 Mass. 138, 138 (1927); UHLEIN V. CROMACK, 109
Mass. 273 (1872). For damage to property caused by a defendant's pet dog, Massachusetts General Laws Chapter 140,
Section 155 provides that “if any dog shall do any damage to *5 either the body or property of any person, the owner or
keeper shall be liable for such damage.” G.L. Ch. 140, § 155.
Generally, where a defendant tortiously damages the personal property of another, the measure of damages is the
difference between the fair market value of the property before and after the injury. Restatement, 2d, Torts, § 928. If
the property is completely destroyed, the measure of damages is the fair market value of the property at the time of
destruction. 22 Am.Jur.2d, Damages, § 282; see also Tandy Corp. v. Boston Pet Supply, Inc., 49 Mass. App. Ct. 393,
394-395 (2000).
Where diminution in market value is unavailable or unsatisfactory to address the loss suffered by the owner, courts
have awarded the cost of restoring the property as an appropriate measure of damages, but resort is typically made to
this valuation where there is no market for the property damaged or the property is peculiarly situated as to have some
special intrinsic value or serve a special purpose. See Massachusetts Port Authority v. Sciaba Construction Corporation, 54 Mass. App. Ct. 509, 513-16 (2002) *6 (damage to pier that was uniquely situated to meet owner-port authority's legislatively directed need for park location was not properly assessed using diminution in value approach).
This alternative formula for assessing damages is much more prevalent in the real property context, presumably based
on the axiomatic legal principle that real property is inherently unique, and the fact that certain pieces of real property
often have special characteristics that cannot be recreated. See id; see also Trinity Church in the City of Boston v. John
Hancock Mut. Life Ins. Co., 399 Mass. 43, 48-49 (1987) (stating restoration approach used for “special property”, such
as property of non-profit, charitable, or religious organization where there is not generally an active market to determine fair market value); Newton Girl Scout Council, Inc. v. Massachusetts Transportation Authority, 335 Mass.
189, 196 (1956) and cases cited (eminent domain taking of land particularly suited for girl scout camp).
Massachusetts cases in which the cost of restoration, rather than diminution in value, has been applied to personal
property are either limited or *7 non-existent, but other jurisdictions have restricted the application to instances where
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the personal property serves some special purpose. See i.e. Bangert v. Osceola, 456 N.W. 2d 183, 190 (Iowa 1990)
(intrinsic value to owner of trees recognized where evidence showed that beyond mere sentimental attachment, trees
held special environmental, wildlife, and landmark qualities). In the context of pet dogs, several jurisdictions have
expressly refused to recognize a dog as “special property”. See Nichols v. Sukaro Kennels, 555 N.W. 2d 689, 691-92
(Iowa 1996) (distinguishing pet animals with ascertainable market value from “special property”) Naples v. Miller,
Not Reported in A. 2d, 2009 WL 1163504 (Del. Super. 2009) (Refusing to award veterinary expenses in excess of
ascertainable market value); Souceck v. Banham, 524 N.W. 2d 478, 481 (Minn.App. 1994) (recognizing that damages
for death of dog are limited to fair market value); Daughen v. Fox, 539 A.2d 858, 864 (Pa.Super. 1988)(holding sentimental attachment of owner's to pet dog did not make dog “unique chattel” under the law).
A Massachusetts case particularly relevant to the case at bar is that of *8Gillett v. Western Railroad Corporation, 90
Mass. 560 (1864). In Gillett, Defendants were found liable for injuries suffered by the Plaintiff's horses that resulted
from an obstruction in a public way. Gillett, 90 Mass at 562. Plaintiffs were awarded damages based on the diminution
in value of their horses, their costs in attempting to cure the horses of the injuries that they had suffered, and the loss of
use of the horses. Id. at 563. Defendants' appealed based on the Superior Court Justice's jury instructions as they
related to damages to the horses. Id.
The SJC affirmed the judgment, stating the following with respect to the damages instruction:
The Plaintiffs were entitled to recover their reasonable expenses in curing the horses, because thereby they had diminished the extent of the injuries, and the amount of damages which the defendants would otherwise have been liable
to pay. It does not appear that the expenses of curing the animals were unreasonable, or that they exceeded in
amount the benefit which was thereby done in diminishing the injurious effects caused by the negligence of the
defendants.
Id. Despite the age of the SJC's decision in Gillett, it remains good law on the point at issue, to wit: damages for injury
to a domestic animal may not exceed the animal's value. Id.
*9 The Appellate Division erred in affirming the District Court's damages award in excess of the market value of a
Bishon Frise dog. As in Gillett, the Irwin's were entitled to compensation for expenses incurred in attempting to cure
Peppermint of the harms for which Defendants were found liable, but only to the extent that they did not exceed the
market value of a Bishon Frise. In Gillett, the Plaintiffs were entitled to the equivalent of veterinary expenses because
those expenses lessened the decrease in value of their horses and thereby mitigated damages. Although - as pointed out
by Defendants' counsel in his motion for a directed verdict - there was no evidence introduced as to the market value of
a Bishon Frise dog, presumably the Irwin's expenditure of over eight thousand dollars far exceeded the diminution in
value or replacement cost of such a dog.
The Appellate Division's reliance on “special purpose property” decisions was misplaced. Massachusetts Port Authority and Trinity Church both dealt with unique pieces of real property that served some special governmental or
charitable function. Furthermore, the Appellate Court of Illinois's *10 decision in Leith, holding that domestic animals
do not have a fair market value, is directly contradictory to the law of the Commonwealth as established by the SJC in
Gillett.
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Under the law of Massachusetts, a dog is considered personalty, and accordingly an award of damages for injury to a
pet dog is capped at the market value of such a dog. Accordingly, the Appellate Division erred in affirming the award
of damages including veterinary expenses where there was no evidence as to fair market value of Peppermint introduced at trial to establish the extent of liability.
II. THE APPELLATE DIVISION ERRED IN AFFIRMING THE DAMAGES AWARDED BY THE DISTRICT COURT WHERE THERE WAS NO EVIDENCE THAT THE COST OF RESTORING THE IRWIN'S DOG TO ITS PRIOR HEALTH WAS REASONABLE.
Even applying the “special purpose property” doctrine to pet animals - which Defendants maintain is contrary to
Massachusetts law - Plaintiffs failed to establish that the cost of restoring Peppermint to her *11 prior health was
reasonable. As there was insufficient evidence as to the reasonableness of the decision to restore Peppermint to her
prior health, the Appellate division erred in affirming the damages award.
In the rare instances in which the Courts of the Commonwealth have invoked the “special purpose property” doctrine,
they have required the plaintiff to show that the cost of replacement or restoration is reasonable. Massachusetts Port
Authority, 54 Mass. App. Ct. at 516. “Not only must the cost of replacement be necessary, the replacement or reconstruction itself must be reasonably necessary.” Trinity Church, 399 Mass. At 49-50. Furthermore, courts should be
hesitant to extend liability beyond that which has been established through careful consideration and prior case law.
See Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 422-23 (2002).
Plaintiffs failed to introduce sufficient evidence at trial that the decision to restore their dog to health was reasonable.
Although their veterinary witness testified that the procedures performed were reasonably necessary to save the dog,
there was no evidence submitted that the decision to *12 expend $8,608.05 to save their pet was reasonable. Surely,
based on their attachment to Peppermint, the Irwin's believe the medical treatment was worth every penny. Nevertheless, it was their decision to pay that amount for the treatment. They cannot force that decision upon Defendants, at
least without sufficient evidence that a reasonable man would have done the same.
This Court's recent decision in Krasnecky is enlightening with respect to the issues on appeal. In that case, Defendants
dogs had attacked and killed Plaintiffs' pet sheep. 56 Mass. App. Ct. at 419. Plaintiffs' refused to submit evidence
showing the fair market value of sheep, as they considered the sheep members of their family and believed assigning a
market value to their family members was morally unacceptable. Id. By failing to introduce evidence as to the market
value of the sheep, Defendants limited the damages component of their claims to emotional distress caused by the
Defendants' negligence, and loss of companionship and society. Id. at 421. The Trial Court determined that Plaintiffs
lacked a cognizable claim for emotional distress damages, and *13 judgment entered for the Defendants on five of
Plaintiff's six claims. Id. at 420.
On appeal, with respect to the claims for emotional distress, the Court refused to extend liability for emotional
damages in the context presented. Id. at 422-23. The Court recognized that there are instances in which damages must
be limited “to prevent an unreasonable expansion of liability for the multitude of injuries that could fall within the bare
principle of reasonable foreseeability. Id.citing Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341(1983).
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Certainly there are people in the world that would expend the same amount as the Iriwins or considerably more to save
their pet dog, or perhaps even a beloved goldfish. That does not make the decision to do so reasonable, and such
considerations underscore the need for a showing of reasonableness where there is deviation from the traditional rules
of compensation for damage to property. Accordingly, as there was insufficient evidence introduced at trial as to the
reasonableness of restoring Peppermint to prior health, even under the erroneously applied “special *14 purpose
property” doctrine, it was error by the Appellate division to affirm the award.
CONCLUSION
A pet dog is personal property under Massachusetts Law, and as such damages for injury to a pet dog are limited to the
value of such a dog. Accordingly, the judgment in this matter must be overruled.
Irina DERESH and Arkady Degtiarov d/b/a Boston Kennels, Appellants, v. Marcia IRWIN and John Irwin, Appellees.
2013 WL 1899777 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
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