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C7EE-Urge Florida Legislature Rights For Pets Beyond Their Current Common Law -·,.:'I ' "' ' i ~' Be D,·,--H Lt \\__. OFFICE OF THE CITY ATTORNEY JOSE SMITH, CITY ATTORNEY COMMISSION MEMORANDUM TO: MAYOR MATTI HERRERA BOWER MEMBERS OF THE CITY COMMISSION CITY MANAGER JIMMY MORAL FROM: CITY ATTORNEY JOSE S DATE: OCTOBER 16, 2013 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA URGING THE FLORIDA LEGISLATURE TO CONSIDER AND ENACT LEGISLATION THAT WOULD RECOGNIZE LEGAL RIGHTS FOR PETS BEYOND THEIR CURRENT COMMON LAW STATUS AS PERSONAL PROPERTY AND TO PROVIDE FOR THE RECOVERY OF NON-ECONOMIC DAMAGES FOR HARM TO PETS TO COMPENSATE PET OWNERS FOR THEIR EMOTIONAL AND PSYCHOLOGICAL PAIN AND SUFFERING RESULTING FROM SUCH HARM. Pursuant to the request of Commissioner Michael Gongora, the attached Resolution is submitted for consideration by the Mayor and City Commission. Also, attached is a copy of the Kennedy v. Byas case which sets forth the current state of the law in Florida with regard to owners recovering non-economic damages for injuries to their pets. In the Kennedy case, the First District Court of Appeal declined to recognize damages where the conduct resulting in the pet's injuries was due to veterinary malpractice and not malicious behavior. 462 Agenda Item C 7 E t= Date /O-Jf:r/3 MIAMI BEACH OFFICE OF THE MAYOR AND COMMISSION TO: FROM: DATE: Jimmy Morales, City Manager ~~ Michael G6ngora, Commissioner~ October q1 2013 MEMORANDUM SUBJECT: Discussion Item for October 16 Commission Meeting Please place on the October agenda as a discussion item regarding enacting a resolution to urge the Florida Legislature to consider and enact legislation that would recognize legal rights for pets beyond their current common law status. If you have any questions please feel free to contact my aide Diana Fontani at ext 6087. MG/df 463 867 So.2d 1195, 29 Fla. L. Weekly D564 (Cite as: 867 So.2d 1195) H Distrlct Cotut of Appeal ofFlorida, First District. Robert Bruns KBNNEDY, Petitioner, v. Dr. Albert BYAS, d/b/a Agape Animal Hospital, Respond\1nt. No. 1003-3234. March 4, 2004. llnckground: Dog owner filed petiUon for writ of certiorari, seeking review of the transfer of his ac- tion for vetel'inmy malpractice from circuit comt tn county court for failure to satisfy the jurisdictional limits. Holding: The District Court of Appeal, Wolf, C.J., held lhllt impact rule precluded dog owner fi·om re· covering dam11ges for emotional distress. Affirmed. West Hendnotes !II Certiornri 73 ~5(1) 73 Certiorari 731 N<lt\lre and Grounds 73k5 Existence of Remedy by .Appeal or Writ of Error 73k5(1) k. ln General. Most Cited Cases An order of the circuit court transfelTing all fmther jurisdiction j\·om the circuit COUit to the county court is reviewuble by petition for certiorari because nbsent this remedy, petitioner would be de- prived of any rigbt of review of L11e circuit court's order. 121 Damagos 115 ~57.38 I 15 Damages 1151 II Grounds and Subjects of Compensatory Damages Page 2 of 14 Pttge I IISIII(A) Direct or Remote, Contingent, or Prospective Consequenoes or Losses 115lll(A)2 Mental Suffering and Emo- tional Distress 115k57.36 lnjmy to Property or Prop- erty Rights 115k57.38 k, Pets and Other Anim- als. Most Cited Cases {Formerly 115k55) Impact rule precluded dog owner fi·om recover- ing damages for emotional distress nrislng out of al- leged veterina1y malpractice in treatment of dog; 1\ililllul~ were personal propetty, Jlot fnmlly m~m· bers, Md expanding the familial rell!tionships ex- ception to the Impact rule to include pets would place an \Uillecessaty burden on courts' case loads. 131 Damages 115 ~57.10 115 Damages l15III Grounds and Subjects of Compensatory Dmnages ll5Uf(A) Direct or Remote, Contingent, ot Prospective Consequences or Losses 115lll(A)2 Mental SuJfering nnd Emo- tional Distrcs~ l15k57 .8 Nalure of Injllly or Tbrent in GoneJ'al 115k57 .I 0 k. Physical Illness, lm- pnct, or lnjwy; Zone of Danger. Most Cited Cases (Formerly 115k50) The "impact rule'' requires some physlcal im- , pact pl'ior to the recovery of damage~ for emotional distress. 141 Animals 28 t£;;::;:;>J.5(4) 28 Animals 28k 1.5 Animals as Propel'ty; Status 2Bkl.5(4) k. Dogs. Most Cited Cases (Formerly 28kl) While a dog may be considered by many to be ~ member O( the famiJy, Ulld()l' !'lorida laW animnis nre considered to be personal property. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. llttp :1 /web2. west law .com/print/prilttstream.aspx?utid=3 &prft=HTMLE&vr=2.0&destinatio... 1 0/4/201 3 464 867 So.2d 1195, 29 Fla. L. Weekly D564 (Cite ns: 867 So.2d 1195) *1196 Clayton R. Syltou, of Syfrett & Kykes Law Otiices, P.A .• Ptmama City, for petitioner. B, Richatd Yollng and Imz:ilieth A. ParsOlJM, of Yotmg, Bill, Fugett & Roumbo~. PA, Pensacola, for respondent. WOLF. C.J. Robert Kennedy, the plaintiff ln the trial court, hns filed a petition ror Writ of CertioJ'Ilri asking us to qua.~h an order granting the respondent's motion to transfer petitioner's action from circuit c-outt to county court. Petitionet' contends that the circuit judge's ordct dcterminit'lg thHt he could not collect emotional distre.~s damages based on vcterinnry malpractice in the treatment of his basset hound constituted a departure fl·om tl1e essential require- ments of law. We disagree, deny the petition, Md certify conflict with the Third District Court of Ap- peal's decisions in Johnson v, Wander, 592 So.2d 1225 (Fh'i. 3d DCA ] 992), and Knm~/e,\' Animal lfosp., Inc. 1'. Wilts, 360 So.2d 37 (Fla. Jr.! DCA 1978). The pctilioucr filed a two count complaint against his veterinarian, Dr. Byai!, seeking damages for votel'inary malpl'actice in the treatment of his basset hound. In count l, petitioner alleged negli- gence and emotional distress; in count IJ, the poti· tioner alleged fraud. Dr. Byas filed <l motion for partial summary judgment. The defense motion tor partial summmy judgment was gr!\llted with re~pect to Kennedy's claim fot' emotional distr\lss damug(;l.~, finding that, even if nil nlleg~tiolis were proven, the petitioner' could not recover for emotional distre~s, mental paln <md sutf-ering, or mental anguish. The court clcniod tha;J rnolion with respect to the thmd claim. After discovery, Dr. Byas l'iled a motion to transfer venue fl'om circuit cot1rt to county court, asserting that discovety had l'ovealed that without the clulm of damages for emotional distress the only damages remaining in litigation were $350 al· leged as the value of the basset hound and $50 for Page 3 of 14 Pnge2 the arilount of the bill over which an allegation of fraud had boon raised.1'111 The *1197 clrctilt court entered an order granting Dr. Byas' motion to trans· fer becattse the jurisdictional limits of thc circuit court had not been satisfied. J1N I. In his objection to the motion to transfer the case to county cou11:, the 'j)t;tl- tioner acknowledged that without the claim for mental anguish the remaining dmnuges did not meet the threshold requirement for circuit court. r 1] An order of the circuit CO~Il't lrnnsfcrrh:g all fU!ther jurisdiction from the circuit cotlrt to the county court Is reviewable by petition tor certloruri because absent this remedy, petitioner would be de- prived of any t·ight of review of the circLiit court's order. See Easley v. Ganim Sancrumy, 120 So.2d 59 (Fin. 2d DCA 1960). We detennine, however, that petllioner hns failed to demonstrate a depmturc from the essential requirements of law. John.I'0/'1 v. Wander, 592 So.2d 1225 (Fla. 3d DCA 1992), is n veterinary m~:~lpractice case vvher·e, as here, the trial court entered partial summary judgment on the claims for damngcs for cmotionnl distress m1d .snbsequently granted a motion to change the cnse from circu1t cou1i to county coUl'l due to the lower jurisdictional amount sought in the clalms remaining. Jn that case, the Thh•d Dt({lrict held that 11 .Jtwy qu<:stion was presented on the is- suus of gross negligence and mental pain and s1.1f· ferlng <1S claimed by the dog's owner and the trial cou1i improperly transferred tho case to county cout"t as being a claim for less than the circuit coutt jurisdJctiona1 amount. fn Knowles Animal Hosp., Ina. v. Wills. 360 So.2d 37 (Fin. 3d DCA 1978), the Third District specifically hdd that 11 dog ow11cr wus entitled to collect for emotional damages in a veterinary Jnalpt'act!ce case. We det~rminc that the "impact rllle" precludes such recovery. See Ze/1 v. Meek, 665 So.2d 1048 (Fla.l995). f2][3) The ''[mpact rule'.' requires some physlc- el lmpnct prior to the recove1y of dnmages for em'll- © 20 l 3 Thom~on Reuters. No Claim to Orig. US Gov. Works. 11t!'p://wcb2. westlaw.com/print/printstream.aspx?utid=3&prft=HTMLE&vr=2.0&destinaLio. .. 1 0/4/2013 465 .I i ! 867 So.2d 1195, 29 Fla. L. Weekly D564 (Cite as: 867 So.2d 1195) tionul distt·css. Jd. at 1050. Petit loner requests thnt we abandon the "impact mle" in thi_s case and allow 1he recovc1y for emotional distress in cases In- volving veterinruy malpractice. In Wrdktil' v. 8. Baplist Hosp. of Fla., Inc., 864 So.2d 1 173 (Fla. lsl DCA 2004), this court recognized that the impact rule is no\ an unyielding inilexible rule of law and in some cases damag~s for emotional distress may be recovered absent. physical impact. We identified those types of cases where ail exception to the im· p<tct rule was likely to be npplled: There exist common threads in all of the forego- ing case~ in which tlte comt established excep- tions to the impact rule. In all, the likelihood of emotional injury was clearly foreseeable; the emotional injury was likely to be significant; the issue of cAusation was relatiwly straightforward; and it wns unlikely that ~;reari11g en exception to the rule wmild resuli in a flood of fictitious OJ" speculative claims. !d. [ 4] One area thai was identified a$ having lhe gravity of emotional injury and lack of countervail- ing policy concerns to justify exceptions to the im- pnct rule iiwolves familial relationships, such as in• jury to n child a~ n reHult oF molpractkc. See W~lk" r<r. We decline to cxltmd this exception to malprac- tice cases involving animals. As we stated in Ben- neff v. BrmnrJf/, 655 So.2d 109, l JO (Fla. 1st DCA 1995), "While a dog may be considcfed by many to be n member of the family, und~r Flol'lda law anim- als are c0nsidered to be pers<~nal property." In making this polnt we have not ovel"lcoked the decisioL1 of the Florida Supreme Court in Let l'ilNe v. As:weiated lndaps., inc., 163 So.2d 267, 269 (Fla. I 964), where the supreme c0~1rl stated, ''Without dlscussing"1.198 lhe affmity between 's~;ntimentul VO:lhte and mentul suftbring' we feel thnt the nffection of a master for his dog is a very real thlng and that the mallciou.~ dcstwction of the pel provides un eleinent of damage for which the owner should recover." (Emphasis supplied). La Page 4 of14 Page 3 Pm•Jrt, however, may be distinguished from the in- stant case. In Ltt f>ol'te, the defendant's behavior was mulicious-tlw defendant tlwew a gat·bagc can at the p laintlfrs pet; in the lnstnnt case we arc dealing with nn nllcgation of Bimplc neg!igcmt behavior by a veterintwian who was trying to provide treatment. See Nfc:hoiJ• v. Sukaro K(mnels, 555 N. W.2d 689, 691 (lowa 1996) (distioguishing La Porte on the basis that their case involved negligence rnther than maUciLms behavior). We acknowledge there is a split of authority on whether damages tbr emotional distress may be col- lected for the negligent provision of' veterinary ser- vices. See Jay M. Zitter, Annotation, Recovery of Damages for Emorional Disll'e-ss Due to Truatmem 1.ij Pets, 2001 WL 1042542, 91 A.L.R. 5111 545, §§ 3 and 4. We find ourselves in agreement, however, with the New York cou1ts which recognize that while pet owners may consider pets as part of lhe fmnlly, ullowlng rccovlny for these types of cases would place an unnecessary llurden on 1I:e eve1' bur- geoning ca!:leload IJ f courts in resolving serious toM claims for individnals. Jnhn.wn v. Douglas, 187 Mlsc.2d 509, 723 N.Y.S.2d 627 (N.Y.Sup:Ct.), a.fj'd, 289 A.D.2d 202, 734 N.Y.S.2d 847 (2001). We decline to earve out an exception to tho impact mle fo1· cusos involving vete!'inary mnlpractice. Petition denied. ALLEN and DAVIS, JJ., CONCUR. Fla.App. 1 Dist.,2004. Ke1medy v. By as 867 So.2d ~ ~95, 29 Fla. L. Weekly D564 END OF DOCUMENT © 2013 Thomson Reuter'S. No Claim to Orig. OS Gov. Works. http:/ /web2. westlaw.com/printlptintstt·eam.aspx?utid=3&prft::::HTMLE&vr=2. O&de::;tinatio.,. 10/4/2013 466 RESOLUTION NO.-------- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA URGING THE FLORIDA LEGISLATURE TO CONSIDER AND ENACT LEGISLATION THAT WOULD RECOGNIZE LEGAL RIGHTS FOR PETS BEYOND THEIR CURRENT COMMON LAW STATUS AS PERSONAL PROPERTY AND TO PROVIDE FOR THE RECOVERY OF NON-ECONOMIC DAMAGES FOR HARM TO PETS TO COMPENSATE PET OWNERS FOR THEIR EMOTIONAL AND PSYCHOLOGICAL PAIN AND SUFFERING RESULTING FROM SUCH HARM. WHEREAS, under the common law, domesticated animals and pets have been considered property and, generally, the legal system's focus for reimbursement for harm to pets has been limited to economic damages and not for the pain and suffering associated with such harm; and WHEREAS, as modern society has evolved, domesticated animals and pets have increasingly enjoyed a strong relationship with their owners and are often deemed members of the family; and WHEREAS, the bond between humans and their pets contributes significantly to the well- being of individuals whose pets are trusted and loved companions, protectors, and household members; and WHEREAS, according to a 2011-2012 survey conducted by the American Pet Products Association, 62% of households in the United States have a pet; and WHEREAS, pets not only have a vital and important place in our homes, but they also contribute significantly to society when utilized by police as rescue animals and for crime solving, assist in national defense efforts, are therapy animals for the elderly and infirm, and are service animals for disabled persons; and WHEREAS, over the past decade, the importance of animals in our lives has been recognized by the American Bar Association, The Florida Bar, and many local and state bar associations that have developed Animal Law Sections to address and consider the rights of animals and pets in our society; and WHEREAS, the Mayor and the City Commission of the Miami Beach recognize the importance of domesticated animals and pets in our society and that laws should be enacted to recognize their legal rights beyond their mere economic replacement value. NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission of the City of Miami Beach hereby urge the Florida Legislature to recognize the important contributions that domesticated animals and pets make to our society by considering and enacting legislation to recognize legal rights for pets beyond their current status as personal property and to provide for the recovery of non-economic damages for harm to pets to compensate pet owners for their emotional and psychological pain and suffering resulting from such harm. PASSED and ADOPTED this ___ day of ________ , 2013. ATTEST: RAFAEL E. GRANADO, CITY CLERK F:IA'ITO\TURNIRESOS\pcts-domesticatcd animals.docx 467 MATTI HERRERA BOWER, MAYOR ~Pr'f)!lVE[l as TO l