By Michael Reiter, Attorney at Law
A new case in the First District Court of Appeals, Division 1, Kimes v. Grosser (May 31, 2011), 2011 WL 2128649:
“Under Civil Code section 3333 plaintiff may present evidence of the bills incurred to save the cat’s life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat. Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.” Id. at *4.
The Court gives the background of the case is:
Plaintiff Kevin Kimes alleges as follows: His pet cat Pumkin was shot with a pellet gun on October 28, 2005, while perched on a fence between his property and that of defendants Charles Grosser et al. Emergency surgery costing $6,000 saved Pumkin’s life, but left Pumkin partially paralyzed, and plaintiff incurred an additional $30,000 in expenses caring for Pumkin because of the injury. Plaintiff contends the shot that wounded Pumkin was fired from defendants’ backyard, and defendants Charles or Joseph Grosser were responsible for the “willful[ ] and malicious[ ]” shooting.
Plaintiff filed this suit to recover amounts paid for Pumkin’s care as a result of the shooting, and punitive damages. Defendants filed motions in limine to exclude evidence of plaintiff’s expenses caring for Pumkin, a cat they described as “an adopted stray of very low economic value,” on the theory that their liability was limited to the amount by which the shooting reduced Pumkin’s fair market value. When the court granted the motions at the outset of the trial, plaintiff declined to proceed, effectively conceding that Pumkin had no market value that justified the expenses of trial. Plaintiff’s appeal is from the judgment of dismissal entered on his failure to prosecute. Id. at *1
The dismissal was reversed by the Court. The takeaway from this decision is that animals will not be treated exactly like other property.
I once argued in the alternative that the value of an animal was limited to its fair market value. That dog was a German Shepherd named Woman. The dog attacked the police officers during a neighborhood evacuation when an unexploded bomb was found nearby. Non-lethal force (mace) was used before the dog was shot, and the dog survived for another year before being put down.
Unlike the case with Pumkin, the judge ruled that Woman’s shooting was within the discretionary immunity under the Government Code, and because the officers were immune, the City of San Bernardino was immune. Judgment was entered in favor of my client, the City of San Bernardino. There is a saying that “this case is a real dog” and sometimes, it is true.
In my time as an attorney, I’ve come across a variety of pet names. The City of San Bernardino had an arson dog named Cinder. Another Deputy City Attorney had an appeal of a determination to destroy a dog named Biscuit (who was later absolved because there was a “counterfeit Biscuit” running around the neighborhood, causing the mayhem attributed to Biscuit). Dangerous dog hearings and appeals are the less glamorous side of municipal law.
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Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California 