[Cite as Rego v. Madalinski, 2016-Ohio-7339.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Jamie Rego Court of Appeals No. L-16-1030
Appellant Trial Court No. CVF-15-04492
v.
Shawn Madalinski DECISION AND JUDGMENT
Appellee Decided: October 14, 2016
*****
David L. Rice, for appellant.
Todd J. McKenna, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} This action commenced on April 1, 2015, with appellant, Jamie Rego, filing
a complaint for damages against appellee, Shawn Madalinski. The complaint alleged,
and the parties do not dispute, that on November 23, 2014, and on appellee’s property
where appellant’s dog was visiting, appellee’s dog attacked and seriously injured
appellant’s dog. At the filing of the complaint, the veterinary bills were in excess of
$10,000.
{¶ 2} On January 28, 2016, the Toledo Municipal Court granted appellee’s motion
for summary judgment finding that because dogs are legally classified as personal
property, compensatory damages were capped at the market value of the animal.
Appellant was then awarded $400, the agreed-upon value, plus court costs. This appeal
followed with appellant raising the following assignment of error:
1. The trial court erred in holding that damages for veterinary
expenses incurred for the treatment of a dog attacked and injured by
another dog are limited to the market value of the injured dog.
{¶ 3} Appellant argues in her sole assignment of error that the trial court
improperly limited recovery to the dog’s market value. Appellant contends that the
veterinary bills incurred following the attack should have also been awarded.
{¶ 4} We first note that it is undisputed that Ohio classifies dogs as personal
property. R.C. 955.03 provides:
Any dog which has been registered under sections 955.01 and
955.04 of the Revised Code and any dog not required to be registered under
such sections shall be considered as personal property and have all the
rights and privileges and be subject to like restraints as other livestock.
{¶ 5} Further, R.C. 955.28 provides:
(B) The owner, keeper, or harborer of a dog is liable in damages for
any injury, death, or loss to person or property that is caused by the dog,
unless the injury, death, or loss was caused to the person or property of an
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individual who, at the time, was committing or attempting to commit
criminal trespass or another criminal offense other than a minor
misdemeanor on the property of the owner, keeper, or harborer, or was
committing or attempting to commit a criminal offense other than a minor
misdemeanor against any person, or was teasing, tormenting, or abusing the
dog on the owner’s, keeper’s, or harborer’s property. * * *.
{¶ 6} Damages for loss or injury to personal property, including dogs, is generally
limited to the fair market value of the property. Davison v. Parker, 11th Dist. Lake No.
2013-L-098, 2014-Ohio-3277, ¶ 11-13. In support of appellant’s argument, appellant
relies on Saratte v. Schroeder, 7th Dist. Belmont No. 08-BE-18, 2009-Ohio-1176. In
Saratte, the appellant was walking her dog on a leash when it spotted appellee’s dog, a
smaller animal, in its yard. Id. at ¶ 2. The dog broke free from appellant, ran into the
yard and grabbed and injured appellee’s dog. Id. The dog ultimately died from its
injuries. Id. at ¶ 3. Following a trial on the matter, the court awarded appellee $2,263
which included the value of the dog and veterinary expenses. Id. at ¶ 6.
{¶ 7} On appeal, the appellant contended that the court awarded excessive
damages where it found that the value of the dog was only $200 and that because the
veterinarian suggested euthanasia, appellee failed to mitigate damages. Id. at ¶ 12-13.
The court first acknowledged that the general measure of damages is the difference in fair
market value immediately before and immediately after the loss. Id. at ¶ 16.
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{¶ 8} Finding that the trial court did not abuse its discretion in awarding damages
for veterinary fees, the court cited the following three cases which awarded veterinary
bills: Oberschlake v. Veterinary Assoc. Animal Hosp., 151 Ohio App.3d 741, 2003-Ohio-
917, 785 N.E.2d 811 (2d Dist.); Pacher v. Invisible Fence of Dayton, 154 Ohio App.3d
744, 2003-Ohio-5333, 798 N.E.2d 1121 (2d Dist.); Lewis v. Hendrickson, 4th Dist. Gallia
No. 02CA18, 2003-Ohio-3756. We will examine each in turn.
{¶ 9} In Oberschlake, the court affirmed the damages award for veterinary
malpractice; specifically, the costs associated with an improper surgery. The crux of the
appeal, however, was the issue of noneconomic damages, i.e., negligent infliction of
emotional distress and consortium which the court rejected. Id. at ¶ 15. Next, in Pacher,
the trial court awarded damages for breach of contract and negligence when a family’s
dog was burned from the use of an invisible fence. Again, the appeal, authored by the
same judge in Oberschlake, was premised on the court’s denial of noneconomic damages
and was rejected. The fence company appealed the negligence and breach of contract
findings. The court found that the company had a duty to conduct its business without
causing injury to its customer’s property. Id. at ¶ 40. Further, the court agreed that the
company breached its promise to rectify the containment issues. Id. at ¶ 58. Finally, in
Lewis, supra, reviewing an evidentiary issue, the Fourth Appellate District affirmed a
trial court’s award of veterinary expenses in a veterinary malpractice case.
{¶ 10} Other than Saratte, we acknowledge that Ohio cases that have awarded
damages beyond fair market value and including the cost of veterinary expenses, have
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based their award on evidence of special characteristics of the animal, i.e., pedigree,
training, or breeding income. See McDonald v. Ohio State Univ. Veterinary Hosp., 67
Ohio Misc.2d 40, 644 N.E.2d 750 (Ct. of Cl.1994); Reed v. Vickery, S.D.Ohio No. 2:09-
cv-91, 2009 U.S. Dist. LEXIS 102151 (Oct. 9, 2009). However, we cannot ignore the
growing number of courts outside of Ohio which have awarded veterinary expenses for
injuries caused by attacks from other dogs, see Leith v. Frost, 899 N.E.2d 635
(Ill.App.2008) and Irwin v. Degtiarov, 8 N.E.3d 296 (Mass.App.2014) and grooming or
kennel injuries, Burgess v. Shampooch Pet Industries, 131 P.3d 1248 (Kan.App.2006)
and Barking Hound Village v. Monyak, 787 S.E.2d 191 (Ga.2016). Further, some states
have enacted statutes allowing recovery for economic damages such as veterinary
expenses for injured pets. See Md.Code Ann. 11-110; Nev.Rev.Stat.Ann. 41-740. In
addition, various courts and law review articles have discussed the plausibility of
reclassifying companion animals under a “semi-property” classification suggesting such
terms as companion property, or sentient property. See, generally, William C. Root,
Note, 47 Vill.L.Rev. 423 (2002); Lauren M. Sirois, Comment, 163 U.Pa.L.Rev. 1199
(2015).
{¶ 11} We agree with and acknowledge that pets do not have the same
characteristics as other forms of personal property, such as a table or sofa which is
disposable and replaceable at our convenience. Accordingly, additional factors should be
considered in fashioning an appropriate economic damages award due to loss or injury.
Such factors include fair market value, age of the pet, pedigree, training, breeding
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income, recommendation of the treating veterinarian, circumstances of the injury, and
anticipated recovery. The overriding consideration is the reasonableness of the expenses
and is fact specific. Irwin v. Degtiarov, 8 N.E.3d at 301 (Mass.App.2014). Importantly
we note that
[a]lthough the owner’s affection for the animal may be considered in
assessing the reasonableness of the decision to treat the animal, the owner
cannot recover for his or her own hurt feelings, emotions, or pain. Nor is
the owner entitled to recover for the loss of the animal’s companionship or
society. Id. at 302.
{¶ 12} Based on the foregoing, we find that fact issues remain as to the damages
beyond fair market value to which appellant is entitled to recover. Accordingly, we find
that appellant’s assignment of error is well-taken.
{¶ 13} On consideration whereof, we find that substantial justice was not done the
party complaining and the judgment of the Toledo Municipal Court is reversed, in part,
and the matter is remanded for a damages hearing. Pursuant to App.R. 24, appellee is
ordered to pay the costs of this appeal.
Judgment reversed, in part.
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Rego v. Madalinski
C.A. No. L-16-1030
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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