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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mitchell v Heinrichs (07/20/2001) sp-5436

Mitchell v Heinrichs (07/20/2001) sp-5436

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

JENNIFER S. MITCHELL,         )
                              )    Supreme Court No. S-8937
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-97-1497 CI
                              )
SUSAN TUCCIO HEINRICHS,       )    O P I N I O N
                              )
             Appellee.        )    [No. 5436 - July 20, 2001]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje J. Steinkruger, Judge.


          Appearances:  Thomas R. Wickwire, Fairbanks,
for Appellant.  Susan Tuccio Heinrichs, pro se, Fairbanks,
Appellee.


          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          FABE, Chief Justice.


I.   INTRODUCTION
          Susan Heinrichs shot and killed Jennifer Mitchell's dog. 
Mitchell sued, seeking compensatory damages for the dog's value, as
well as damages for her mental anguish and punitive damages.  Upon
making a threshold determination that Heinrich's conduct was not
outrageous, the superior court granted summary judgment to
Heinrichs on Mitchell's claims for intentional infliction of
emotional distress and punitive damages.  The court also limited
compensatory damages to the dog's fair market value and then
dismissed Mitchell's claim because she conceded that her adult dog
had no market value.  Mitchell appeals these decisions.
II.  FACTS AND PROCEEDINGS
          On May 29, 1997, Susan Tuccio Heinrichs noticed two dogs
running loose on her property.  Heinrichs recognized one of the
dogs, a MacKenzie River husky, as a dog that had been on her
property repeatedly, without permission, over the previous two
months.  According to Heinrichs, she had unsuccessfully attempted
to find the owner in the past and did not know at that time that
Jennifer Mitchell owned the husky.
          Heinrichs saw the dogs running near her livestock pen,
which contained chickens and goats.  One of the goats had just
given birth to two kids and it was still bloody from the birth. 
Heinrichs perceived that the dogs were excited by the smell of the
blood and were threatening her livestock.
          Heinrichs grabbed her shotgun, left her house, and walked
toward the dogs, which were about twenty-five to thirty feet away. 
After she walked a few feet, the dogs turned their attention to
Heinrichs.  Maintaining that she felt threatened for her own
personal safety, Heinrichs shot Mitchell's dog.  Immediately after
the shooting, Heinrichs walked back into the house.  Ten to fifteen
minutes later, Mitchell discovered her dead pet.  She confronted
Heinrichs and then removed her dog from Heinrichs's property.
          On July 15, 1997, Mitchell filed a complaint against
Heinrichs seeking compensatory damages for the loss of her dog, as
well as damages for her emotional distress and punitive damages. 
In October Heinrichs sent a letter to Mitchell, apologizing for the
incident and offering $250 so that Mitchell could buy a new dog. 
Mitchell did not accept the offer.
          Heinrichs then moved for summary judgment, seeking to
dismiss Mitchell's claims of conversion, [Fn. 1] intentional
infliction of emotional distress, and punitive damages.  Superior
Court Judge Niesje J. Steinkruger granted summary judgment in favor
of Heinrichs on the intentional infliction of emotional distress
and punitive damages claims.  Judge Steinkruger denied summary
judgment on the conversion claim, but limited compensatory damages
on that claim to the fair market value of the dog.
          Heinrichs filed a second motion for summary judgment,
arguing that Mitchell had failed to establish any compensatory
damages for loss of the dog.  Relying on Mitchell's statement that
"the value of her dog, just before the time it was shot, was zero,
because other people are not interested in buying someone else's
dog," Heinrichs requested dismissal of Mitchell's conversion claim
based on the failure to prove any damages.  The superior court
granted the motion and dismissed the conversion cause of action
"with prejudice upon the merits."  On appeal Mitchell challenges
each of these determinations.
III. DISCUSSION
     A.   Standard of Review
          This court reviews a trial court's decision granting
summary judgment de novo and will affirm if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. [Fn. 2]  The question of whether
Mitchell presented sufficient evidence to support a prima facie
case for intentional infliction of emotional distress or punitive
damages is a threshold question to which this court applies an
abuse of discretion standard. [Fn. 3]
     B.   The Superior Court Properly Dismissed Mitchell's
Intentional Infliction of Emotional Distress and Punitive Damage
Claims.

          In Richardson v. Fairbanks North Star Borough, we
recognized a cause of action for intentional infliction of
emotional distress for the intentional or reckless killing of a pet
animal. [Fn. 4]  For such claims, the trial court must "make a
threshold determination whether the severity of the emotional
distress and the conduct of the offending party warrant a claim of
intentional infliction of emotional distress." [Fn. 5]  The
challenged conduct must have been "so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." [Fn. 6]
          We also recognized in Richardson that a plaintiff could
recover punitive damages for the killing of a pet. [Fn. 7]  We
concluded that the offensive conduct warranting punitive damages is
similar to the conduct that would sustain an intentional infliction
of emotional distress claim. [Fn. 8]  The plaintiff must produce
evidence that the defendant's conduct was outrageous, such as
evidence that the acts were performed with malice, bad motive, or
reckless indifference to the rights or interests of another. [Fn.
9]  Punitive damage claims also require the trial court to make a
threshold determination whether there is "evidence that gives rise
to an inference of actual malice or conduct sufficiently outrageous
to be deemed equivalent to actual malice." [Fn. 10]
          Here, the superior court granted summary judgment on
Mitchell's claim of intentional infliction of emotional distress,
concluding, after considering the evidence in the light most
favorable to Mitchell, that Heinrichs's conduct did not go "beyond
all bounds of decency."  Although the superior court conceded that
Heinrichs "might have acted in a less drastic manner to the
intruder on her property," it concluded that "the defendant's
conduct, even when considered in the light most favorable to the
plaintiff, [was] not 'outrageous.'"  The superior court also
rejected Mitchell's claim for punitive damages, determining that
Heinrichs had not acted in a malicious or recklessly indifferent
manner.
          In light of the dog's increasingly bold behavior and the
threat to the livestock, the trial court concluded that Heinrichs's
shooting of the dog was not an outrageous, malicious, or utterly
intolerable act.  Oregon courts have denied punitive damages in two
cases in which a person shot and killed a dog that was harassing or
threatening livestock. [Fn. 11]  Moreover, under the Fairbanks
North Star Borough Code of Ordinances, the intentional killing of
an animal is justified if the person acted "in reasonable defense
of person or property." [Fn. 12]  Because Mitchell presented no
material facts to dispute that Heinrichs acted in a manner
justified under the community standards embodied in the municipal
ordinance, the superior court did not abuse its discretion in
making the threshold finding that Heinrichs's conduct did not
support a prima facie case of either intentional infliction of
emotional distress or punitive damages. 
     C.   The Trial Court Did Not Err in Concluding that Damages
for the Loss of a Pet May Not Include Sentimental Value or
Companionship Value.
     
          Mitchell asks this court to revisit its ruling in
Richardson that the damage award for the loss of a pet is limited
to its fair market value.
          In Richardson, we affirmed a trial judge's determination
that the proper measure of damages was limited to the dog's fair
market value or replacement cost:
          The superior court correctly held that the
Richardsons' subjective estimation of [the dog's] value as a pet
was not a valid basis for compensation.  Since dogs have legal
status as items of personal property, courts generally limit the
damage award in cases in which a dog has been wrongfully killed to
the animal's market value at the time of death.  In cases involving
working dogs, especially those of mixed lineage without a
marketable pedigree, courts have based the damage award on the
dog's utility.  However, a minority of jurisdictions have
recognized that these limited damage awards are not commensurate
with the loss suffered by an owner when a pet is maliciously
killed.[ [Fn. 13]]

          In the more recent case of Landers v. Municipality of
Anchorage, [Fn. 14] we recognized that the value to the owner,
rather than the fair market value, is the proper measure of damages
"where the destroyed or lost property has no real market value or
where the value of the property to the owner is greater than the
market value." [Fn. 15]  We applied this measure to Landers's lost
photographs and videotapes, concluding that damages under this
standard would include the cost of purchasing and developing the
film and purchasing blank videotapes. [Fn. 16]  In Landers, we also
reaffirmed that damages for a chattel's subjective emotional or
sentimental value to the owner were generally unavailable,
concluding that such considerations were limited to the context of
intentional infliction of emotional distress claims. [Fn. 17]
          Richardson and Landers are generally consonant with the
modern case law in other jurisdictions that have addressed the
valuation of pet dogs.  The majority rule holds that the proper
measure of recovery for the killing of a dog is the dog's fair
market value at the time of its death. [Fn. 18]  But other courts
have recognized that the actual value to the owner, rather than the
fair market value, may sometimes be the proper measure of the dog's
value. [Fn. 19]  Commentators suggest that the standard calculation
of damages, typically fair market value, may not adequately
compensate the pet owner for the loss. [Fn. 20]
          We agree with those courts that recognize that the actual
value of the pet to the owner, rather than the fair market value,
is sometimes the proper measure of the pet's value.  In determining
the actual value to the owner, it is reasonable to take into
account the services provided by the dog [Fn. 21] or account for
zero market value. [Fn. 22]  Where, as here, there may not be any
fair market value for an adult dog, the "value to the owner may be
based on such things as the cost of replacement, original cost, and
cost to reproduce." [Fn. 23]  Thus, an owner may seek reasonable
replacement costs -- including such items as the cost of purchasing
a puppy of the same breed, the cost of immunization, the cost of
neutering the pet, and the cost of comparable training.  Or an
owner may seek to recover the original cost of the dog, including
the purchase price and, again, such investments as immunization,
neutering, and training.  Moreover, as some courts have recognized,
it may be appropriate to consider the breeding potential of the
animal, and whether the dog was purchased for the purpose of
breeding with other purebreds and selling the puppies. [Fn. 24] 
But while these damages may more accurately reflect the animal's
actual value to the owner, Mitchell may not recover damages for her
dog's sentimental value as a component of actual value to her as
the dog's owner.  Therefore, the trial court did not err in
prohibiting Mitchell's claims for damages of emotional and
sentimental value.  Mitchell's concession that her adult dog had no
resale value does not, however, prohibit her from recovering for
her loss.
IV.  CONCLUSION
          The superior court here dismissed Mitchell's intentional
infliction of emotional distress and punitive damages claims on
summary judgment.  We AFFIRM these rulings.  While the superior
court refused to grant summary judgment on the conversion claim, it
limited compensatory damages under this claim to the dog's fair
market value.  It then dismissed the claim because the fair market
value of Mitchell's adult dog was zero.  Because we recognize that
a pet's actual value to the owner may exceed its fair market value
and include the original cost to the owner or full reasonable
replacement costs, we REVERSE the superior court's dismissal of the
case and REMAND to the superior court for trial on the conversion
claim and determination of damages based on the principles set out
in this opinion.


                            FOOTNOTES


Footnote 1:

     The superior court analyzed Mitchell's claim under the rubric
of "trespass to chattels."  But destruction of chattels, as
occurred in this case, rather than mere damage to chattels, gives
rise to liability for the tort of conversion.  See McKibben v.
Mohawk Oil Co., Ltd., 667 P.2d 1223, 1228 (Alaska 1983);
Restatement (Second) of Torts sec. 226 (1965).  We herein refer to
the
tortious killing of a pet animal as conversion.


Footnote 2:

     See Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 735 (Alaska
1999).


Footnote 3:

     See Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 636-37 (Alaska
1999) (punitive damages); Hawks v. State, Dep't of Pub. Safety, 908
P.2d 1013, 1015-16 (Alaska 1995) (intentional infliction of
emotional distress); Richardson v. Fairbanks North Star Borough,
705 P.2d 454, 456 (Alaska 1985).


Footnote 4:

     705 P.2d at 456.


Footnote 5:

     Id.


Footnote 6:

     Hawks, 908 P.2d at 1016 (quoting Oaksmith v. Brusich, 774 P.2d
191, 200 (Alaska 1989)).


Footnote 7:

     705 P.2d at 456 n.1.


Footnote 8:

     See id. at 456.


Footnote 9:

     See Wal-Mart, 990 P.2d at 636.


Footnote 10:

     Id. at 637 (quoting Chizmar v. Mackie, 896 P.2d 196, 210
(Alaska 1995)).


Footnote 11:

     See Green v. Leckington, 236 P.2d 335, 339 (Or. 1951);
Williams v. Spinola, 622 P.2d 322, 325 (Or. App. 1981); see also
Robin Cheryl Miller, Annotation, Damages for Killing or Injuring
Dog, 61 A.L.R. 5th 635, 703 (1998) (hereinafter Miller).


Footnote 12:

     Fairbanks North Star Borough Code of Ordinances
6.24.040(B)(7).  See also AS 11.61.140 (limiting cruelty to animals
misdemeanor to infliction of severe pain or prolonged suffering,
failure to care for animals, or killing by use of decompression
chamber).  In response to a complaint by Mitchell, the Division of
Animal Control concluded that "according to our ordinance,
[Heinrichs] was within her rights."  See generally AS 03.55.030
(making it lawful to kill a dog that "habitually annoys" livestock
and other animals, provided that the dog owner, "if known or
reasonably identifiable," is first notified and given reasonable
opportunity to restrain the dog).


Footnote 13:

     705 P.2d at 456 (citations omitted).


Footnote 14:

     915 P.2d 614 (Alaska 1996).


Footnote 15:

     Id. at 618.


Footnote 16:

     See id. at 618-20.  


Footnote 17:

     See id. at 619.     


Footnote 18:

     See generally Miller, supra note 11; see also Richardson, 705
P.2d at 456.


Footnote 19:

     See Miller, supra note 11, at 656-59; see also Landers, 915
P.2d at 618.


Footnote 20:

     See Debra Squires-Lee, Note, In Defense of Floyd: 
Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev.
1059, 1081-83 (1995).  In contrast to Alaska case law, a small
minority of jurisdictions has recognized that the value of a pet
dog may include sentimental or companionship value.  See Miller,
supra note 11, at 659-62.  For example, a New York court has held
that the loss of companionship is an element of a dog's actual
value.  See Brousseau v. Rosenthal, 443 N.Y.S.2d 285, 286-87 (N.Y.
Civ. 1980).  An Illinois appellate court analogized a pet to items
such as photographs that have no market value and thus warrant
damages assessed under the "actual value to the owner" standard. 
Jankoski v. Preiser Animal Hosp., 510 N.E.2d 1084, 1086-87 (Ill.
App. 1987).  The court then held that the "concept of actual value
to the owner may include some element of sentimental value in order
to avoid limiting the plaintiff to merely nominal damages."  Id. at
1087.  These cases quite obviously conflict with Richardson and
Landers, in which we expressly rejected damages based on
sentimental value for the loss of personal property.


Footnote 21:

     See Demeo v. Manville, 386 N.E.2d 917, 918-19 (Ill. App.
1979); Quave v. Bardwell, 449 So. 2d 81, 84 (La. App. 1984); Paguio
v. Evening J. Ass'n, 21 A.2d 667, 668 (N.J. 1941) (cited in
Richardson); McDonald v. Ohio State Univ. Veterinary Hosp., 644
N.E.2d 750, 751 (Ohio Ct. Cl. 1994); Zeid v. Pearce, 953 S.W.2d
368, 369 (Tex. App. 1997).


Footnote 22:

     See Wilcox v. Butt's Drug Stores, 35 P.2d 978, 979 (N.M.
1934); Green v. Leckington, 236 P.2d 335, 337 (Or. 1951) (cited in
Richardson at 456).


Footnote 23:

     Landers, 915 P.2d at 618.


Footnote 24:

     See Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. - Houston
1994); see also Quave v. Bardwell, 449 So. 2d 81 (La. App. 1984).