Sunday, April 01, 2007

Pet losses from tainted food unlikely to result in big recoveries, at least in Illinois

Image captured from Wonkette

There's been a lot of news about pet food recalls and there's always the chance that pet deaths associated with tainted food may prompt an inquiry from a grieving pet owner.

There's no question that our society cherishes pets. Recently, the Illinois legislature amended the Trusts and Trustees Act by adding §15.2 recognizing the validity of trusts set up for the benefit of "designated domestic or pet animals." (760 ILCS 5/15.2, eff. Jan. 1, 2005.)

But that does not mean that a pet owner can hope to have his grief assuaged by a large damage award against a pet food company that served up tainted kibbles.

The leading case on the value of an animal destroyed by tortious conduct of a third party is probably Jankoski v. Preiser Animal Hospital, 157 Ill.App.3d 818, 510 N.E.2d 1084 (1st Dist. 1987). The case concerned the death of a dog, but the court made the point that a dog is valued as any other item of personal property.

Where personal property is destroyed, the measure of damages is generally the difference "between the market value of the property before the injury and the value of the wreckage." Trailmobile Division of Pullman, Inc. v. Higgs, 12 Ill.App.3d 323, 297 N.E.2d 598, 600 (5th Dist. 1973). However, there is a special rule that applies in cases where the lost property has no market value.

Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 327 N.E.2d 346 (1st Dist. 1975), illustrates that rule that applies in this unusual circumstance.

When Rubloff fired Arthur Long, the firm kept a file that Long had accumulated over the years of 'leasing data.' Long testified at trial that the file was around six inches thick and contained leasing information on 40 or 50 buildings including "the names of tenants, their lease-expiration dates, the name of the contact, the number of square feet occupied, the amount paid per square foot, whether the tenant contemplated expanding, and similarly pertinent information." (27 Ill.App.3d at 1016-17). (Long had been compiling this information since 1960, long before he'd become associated with Rubloff; Rubloff insisted that this data became its property when Long became its employee. The Appellate Court, however, stated that it was "unaware of any rule which would deprive an employee of his personal property merely because its use during the employment relationship accrued to the benefit of the of the employer." 27 Ill.App.3d at 1025.) In any event, the relevant question on appeal was the measure of damages that Long could recover because of Rubloff's refusal to surrender the file to him upon termination.

The Long court stated that the proper way to measure damages in a case like this would be to determine the "actual value to plaintiff" of the purloined file.

However, the court reversed the damage award in Long's favor. Long's highly subjective opinion "was insufficient to establish damages." To recover, Long would have had to produce "testimony. . . to show what value the leasing data had been to the plaintiff in the past, what commissions, if any, were made by use of the data, or other testimony to show how possession of the book economically benefitted plaintiff." (27 Ill.App.3d at 1026.) The burden of proving value is on the plaintiff "and the evidence must afford some reasonable and proper basis for ascertaining value. At a minimum, it must rise to the dignity of proof, and supply such elements or standards for measuring value to enable the trier of fact to exercise its judgment." (27 Ill.App.3d at 1026.)

The dog owners in the Jankoski case admitted that their lost dog had no particular market value (they expressly stated at one point that the dog had no value as property), so the court found, citing Long, that the proper measure of damages for the dog's loss was the "actual value to [the] plaintiff." However, "damages must be ascertained in some rational way from such elements as are ascertainable." (157 Ill.App.3d at 820.) In the case of the lost dog, the court acknowledged the possibility that some element of sentimental value might be properly considered "in order to avoid limiting the plaintiff to merely nominal damages." The Jankoski case stands for the proposition that damages in a case "where the object destroyed has no market value. . . while not merely nominal, are severely circumscribed." (157 Ill.App.3d at 821.)

The law knows how to value the diamonds in your mother's engagement ring -- but it has no good way to evaluate the sentimental value of that ring. So it is also with dogs.

The fearless prediction here: There will be no boxcar numbers awarded by Illinois courts to Illinois pet owners... no matter how far the tainted pet food scandal spreads.

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