CBA Record February-March 2019

YLS Special Issue– Diversity of Opportunity

was granted. On appeal, the 1st District reversed the dismissal, noting that the measure of damages, or “the ‘value to the owner’ (actual value) is left largely to the discretion of the trier of fact.” Even the decades-earlier 1st District case of Jankoski (discussed in Anzalone ), while noting that such damages had been severely circumscribed, recognized that pets have no market value and that a plaintiff is allowed to demonstrate the animal’s value as circumstances permit. Jankoski, 157 Ill. App. 3d 818, 820 (1st Dist. 1987). Actual value is also recognized in cases where veterinary care is required to bring an injured animal back to health. Leith v. Frost, 387 Ill. App. 3d 430 (4th Dist. 2008). Where plaintiffs’ dog was injured but not killed as a result of defendant’s negligence, the appellate court rejected application of “market value,” which would have prevented recovery of the veterinary expenses incurred by plaintiffs in bringing their injured dog back to health. The Leith court explained: Even if it were true that anyone would pay $200 for a 7 1/2-year-old dachshund that is not a show dog, the reality is that Molly had merely nominal value at the time of the injury. A reasonable person in defen- dant’s position should have reason- ably foreseen that if his dogs escaped from their enclosure and injured plaintiffs’ family pet, plaintiffs would feel compelled to pay consider- ably more than a nominal amount for veterinary care. It is common

knowledge that people are prepared to make great sacrifices for the well- being and continued existence of their household pets, to which they have become deeply attached. They feel a moral obligation toward these animals. Emotionally, they have no choice but to lay out great expen- ditures when these animals suffer a serious physical injury. Leith, 387 Ill. App. 3d at 436 (emphasis added). “Loss of companionship” and/or other emotion-based damages are not indepen- dent causes of action arising from the negligent loss of a companion animal, but they have been recognized as elements of the loss in several cases. This was also discussed in Anzalone: On the other hand, Brousseau, upon which Jankoski relied, specifically considered the “loss of companion- ship,” although not as an independent cause of action, but as an element of damages in the negligent death of a widow’s eight-year-old dog. Brous- seau, 110 Misc. 2d at 1055-57, 443 N.Y.S.2d at 286-87. See Anzalone v. Kragness, 356 Ill. App. 3d 365, 371 (1st Dist. 2005) (emphasis added). Although the Anzalone trial (following remand) did not result in the amounts plaintiff sought, the jury instructions included the following language: The damage to property, [is] deter- mined by the actual value to the owner immediately before the occur-

rence. This may include loss of com- panionship and loss of sentimental value. You may consider the length of time the plaintiff owned the property before it became damaged. You may exclude the purchase price as a basis for valuation, if the sum does not really reflect the value of the destroyed property. Whether any of these elements of damages has been proved by the evidence is for you to determine. See Anzalone v. Kragness, Case No. 05 L 5887, Jury Instructions (Given), April 24, 2007. “Actual value” it is not a true valuation of the grief, mental distress, and other emotional suffering incurred in the death of a companion animal, but “actual value” does at least expand the available damages beyond traditional property valuation. For the animal industry leaders who seek “market” valuation for all companion animal cases, animal cloning has more recently posed an interesting dilemma. Facilities now exist in the United States and Korea offering to clone a companion animal at the market rate of $25,000 - $100,000 per animal. Viagen Pets, Dog Cloning in the US, https://viagenpets. com/dog-cloning/; My Friend Again - The Dog Cloning Company, https://myfriend- Where industry defendants have in the past argued for the “replacement” cost of a given animal in the form of a newly purchased dog or cat, it is now possible– not just to replace with a similar breed

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