Recovering Emotional Distress Damages for Loss or Injury to a Pet?

Any attorney practicing animal law in California should be familiar with the case McMahon v. Craig (176 Cal. App 4th 222). In civil litigation the case comes up routinely in demurrers or motions to strike because it bears directly on the issue of whether or not emotional distress damages can be recovered in cases brought after an animal has been injured or killed. It is the go-to case for defense attorneys and therefore plaintiff’s attorneys should understand when McMahon actually applies and when it doesn’t.

McMahon itself was a veterinary malpractice case. Tootsie, a purebred Maltese dog, was undergoing corrective surgery at the hands of veterinarian defendant Craig. Despite advising plaintiff that the biggest risk Tootsie faced after the corrective surgery was aspiration pneumonia and informing plaintiff that she would take all the necessary precautions with Tootsie to prevent aspiration pneumonia, defendant was negligent. She gave Tootsie food too soon after the surgery, which unsurprisingly caused an aspiration pneumonia. Then defendant failed to properly monitor or treat Tootsie and the she died shortly after the corrective surgery. To top it off, defendant lied about the care she had given to Tootsie in order to cover her tracks.

Plaintiff filed suit seeking damages for, among other things, intentional infliction of emotional distress. The California Court of Appeal concluded that plaintiff could not recover damages for emotional distress because she was not a bystander or direct victim of defendant’s conduct. The court also noted that it did not want to impose a duty on veterinarians to avoid causing emotional distress to the owner of an animal being treated. So in cases of veterinary malpractice based on negligence, McMahon indeed makes it very difficult for a plaintiff to recover damages for emotional distress.

However, defendants routinely try to use McMahon in any case involving an animal to limit a plaintiff’s potential recovery and that’s why plaintiff’s attorneys need to be well-versed in the case. The first thing to remember is that McMahon is only a negligence case. In McMahon the Court of Appeal did not rule on whether a plaintiff can recover emotional distress damages for a defendant’s intentional conduct. Therefore, any plaintiff should make that distinction clear when a defendant attempts to use McMahon to limit a plaintiff’s potential recovery when the defendant’s conduct was intentional.

Second, because the court focused on the fact that the plaintiff in McMahon was not a bystander or direct victim, it follows that McMahon does not clearly apply if a plaintiff is a bystander to or direct victim of defendant’s conduct. The defendant’s negligence in McMahon occurred when the plaintiff was not present. In a negligence case where the plaintiff was a witness to defendant’s misconduct, a plaintiff can then make a strong argument that their case is distinguishable from McMahon.

So while it’s critical for attorneys bringing civil litigation cases in animal law to understand that McMahon may limit their recovery in a veterinary negligence situation, it’s also important to remember that McMahon only applies under narrow circumstances. When a defendant tries to contort the facts of their case so that it is governed by McMahon, a plaintiff should make the distinctions between their case and McMahon clear in order to obtain the best possible recovery for their client.