Your Pet: 'One of the family' ... Until He Gets Hurt?
Marcy LaHart, J.D. is a colleague of sorts. Ms. LaHart is a lawyer who attempts to keep those who would treat animals in a less-than-appropriate way in line — legally, that is.
Some may brand her an "activist," and among those for whom tort reform would serve a viable purpose, but I say check out her "guest post" and decide for yourself.
Central Bark Doggy Day Care: Where your dog is one of the family ... until we let him get hurt … then he is just chattel
May 18, 2010
According to Central Bark's website, "There are those who give their dogs food and shelter, and those who give them so much more. You know who you are." Central Bark knows who you are too, because you are the clients that shell out big bucks for their services; services like doggy day-care, doggy "sleepovers," and doggy birthday parties.
So would it surprise you that Central Bark's lawyer stood up in a Broward County courtroom and repeatedly argued that dogs are just property, and that if your dog gets hurt on Central Bark's premises, even if it is Central Bark's fault, Central Bark should not have to pay your vet bills if the bills are more than your dog's fair market value?
Almost three years ago, Kiki Perrin dropped off her dog Bettis, a rescued chocolate Labrador Retriever, at Central Bark's Fort Lauderdale location. Bettis was placed in a temporary holding area enclosed by a short picket fence. Bettis, being the sociable guy that he is, attempted to jump over the fence so that he could join the fun, but unfortunately did not clear the fence. His back leg got caught. He required orthopedic surgery. His recovery was slow and difficult. He had to be crated almost constantly for months while he healed. Bettis still limps and will require special care for the rest of his life.
Central Bark flatly refused to reimburse a penny of the veterinary expenses Kiki incurred, claiming that the waiver Kiki signed when she enrolled Bettis immunized them from any liability. Never mind that the waiver talks mostly about the risk of dog fights and fails to mention that Central Bark also disclaims any liability for their employee's negligence.
Frustrated by Central Bark's callous response to Bettis's injury, which was essentially, "you signed a waiver so too bad," Kiki hired an attorney to try to work things out. That would be me.
Central Bark continued to claim that they had no responsibility whatsoever for Bettis's injuries, so we filed suit in county court asking that Kiki be compensated for her expenses in treating Bettis's injury. The law suit is hardly cutting edge. It does not ask for damages for Bettis' pain and suffering. It does not ask that Kiki be compensated for "emotional distress." All she wants is some compensation for her vet bills and for the future veterinary care and supplements Bettis will require for the rest of his life because of his injury.
Central Bark's lawyer's first response to the complaint was to try to have the case dismissed based upon the waiver Kiki had signed. She later amended her motion, asking the judge to strike the claim for damages for the veterinary bills because Kiki had committed "economic waste" by electing to spend more on Bettis' surgery than he is worth.
The associate from Cole, Scott & Kissane, the law firm defending Central Bark, asserts that because Bettis is "property under the law," Kiki's damages may not exceed Bettis's fair market value. According to Central Bark, whatever someone else would pay for Bettis if Kiki were to sell him on the lucrative used dog market is the maximum amount of money Kiki is entitled to, even if his injury was Central Bark's fault.
A good measure of his "fair market value" is the $80 you would spend to adopt a dog from Broward County Animal Services, or even the $250 adoption fee Labrador Retriever Rescue of Florida would charge for a dog like Bettis. Incidentally, $250 is less than what two weeks of "day care" at Central Bark would cost, weekends not included.
There are no reported cases in Florida in which a court has ruled that veterinary expenses are not recoverable when your pet is injured by someone's negligence. I have found only one case in which a Florida court has considered the issue at all, and that court said yes, reasonable veterinary expenses are recoverable because, after all, "we are not just talking about a car, a piece of land, or a database." According to Central Bark's attorney, that case should be ignored, because it is just a circuit court's unpublished opinion (all circuit court opinions are unpublished).
My opposing counsel kept citing cases regarding whether a pet owner is entitled to emotional distress damages when a pet's death is caused by veterinary malpractice, which is not even an issue in this case, and repeated that, "in Florida, your honor," dogs are property under the law. As if that somehow makes Florida unique. Companion animals are property in every state in the nation.
Our hearing was set to begin at 3:30 p.m. At 11:46 a.m. my opposing counsel e-mailed me a list of five cases she had not cited in her motion but was now, having read my response to her motion, intending to rely upon, including a 1931 case from Texas and a 1940 case from Iowa. The way people view dogs has changed since the 30s and 40s, which is why businesses like Central Bark Doggy Day Care exist.
After 45 minutes of heated argument, the seemingly befuddled judge denied Central Bark's motion to dismiss based upon the waiver, and much to both attorneys' frustration, declined to rule on the issue of damages one way or the other.
I recognize that Central Bark's lawyer is just doing her job, and I don't sense that she is overjoyed at the position she is stuck arguing. She conceded that her argument was "insensitive." Insensitive is an understatement. How can a business solicit customers by claiming on its website, "our pups are friends, companions and family members," and then argue in court that "our pups" are worth no more than their initial purchase price at most?
Central Bark claims to be "a leader in the industry" that "sets the standard for excellence in canine care," but they want to have it both ways. Open up your pocketbook to pay for their services, including birthday parties and "doggy sleepovers," but when your dog gets hurt as a result of their oversight, Central Bark would apparently rather open up their pocketbook and pay Cole, Scott & Kissane to argue that your dog should not be viewed any differently than your toaster. That, rather than do the right thing and pay your reasonably incurred veterinary expenses.
If the judge eventually sides with Central Bark, it would certainly mean less pressure and incentive for Central Bark to keep your dog safe. I wonder how many people would keep taking their dogs to Central Bark if they knew how duplicitous Central Bark is about "our pups"?
End of "guest post." What's your take? And how different would this be if we were talking veterinarians instead of "day-care" providers? (None, methinks.)
Dr. Patty Khuly