There’s an ugly story in the Daily News today about a couple walking their dog in Brooklyn. They turn a corner and startle an off-duty Secret Service agent.
Agent claims dog not on leash. Daily News publishes picture of dead dog with leash. Secret Service decides not to comment further.
“She scared a cop who was walking home,” the visibly shaken dog’s owner said as he covered his eyes. “He shot her and she’s dead.”
I told you it was ugly.
Immediately, on Twitter, if you followed the story, there were folks saying that the owners should sue.
They could sue. But they would lose. Unless you count the value of the dog as winning. Which it isn’t.
In New York, dogs are considered property. And there is no claim for emotional distress to the owner of lost/destroyed property, regardless of whether it is your dog, your bike , or your favorite photo of your Great Aunt Gertie that was burned to a crisp. From the Appellate Division in Fowler v. Town of Ticonderoga:
Regarding plaintiff’s claim for damages for psychic trauma, a dog is personal property and damages may not be recovered for mental distress caused by its malicious or negligent destruction
You can recover the value of the property. That’s it.
If you have a physical injury of some kind (busted arm) you can recover for your emotional damage as well as the physical. Your difficulty cutting a piece of chicken with a busted wing is a loss, as is your difficulty pulling on your pants, fastening a bra, whatever.
But there must be a physical injury to recover for emotional loss. The exceptions are very limited.
One of those exceptions is the Zone of Danger case. Mom and child are crossing street at light. Driver is texting while driving and kills kid. Mom is not physically touched. This is one of the few exceptions. But it applies to immediate family only.
From New York’s top court in Bovsun v. Sanperi:
Where a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries. (emphasis added)
The problem here, of course, is that the dog is not a family member, no matter how much you want to believe it. We have a dog. We love him. We call him Tucker McDoofusPants. But the State of New York has deemed him property.
So. Sometimes there are horrible things that happen. In this case a law enforcement official shooting down your dog perhaps because he’s a panicky little weanie. He then apparently claimed the dog was unleashed, I suppose to justify the shooting.
But the photo that the Daily News has, that I reproduced above, shows otherwise.
In answer to a request from The Daily News to clarify the characterization of “unleashed” since The News has a photo of the dog’s body at the scene with her leash still attached, a spokesman for the Secret Service said it “will not have further comment.”
Take the guy’s gun. Take his badge. Prosecute for a false report if he made one. Make sure he doesn’t carry a gun again.
But a lawsuit won’t go anywhere meaningful.
Update: A new story from law enforcement now claims the dog was wearing a leash but it was not being held. This doesn’t change the analysis that, in New York, a dog’s only value is that of property.