McDougall v. Lamm

delivered the opinion of the Court.

In this appeal, we are asked to consider whether a pet owner should be permitted to recover for emotional distress caused by observing the traumatic death of that pet. Asserting that pets have achieved an elevated status that makes them companions in the lives of human beings, plaintiff Joyce McDougall asks this Court to hold that pets should no longer be considered to be mere personal property. With that fundamental shift in the way that pets are seen in the eyes of the law as her backdrop, plaintiff asks *207us to permit her to recover for the emotional distress she endured after she watched her dog as it was shaken to death by a larger dog.

The basis in our law for recovering emotional distress damages arising out of observing the traumatic death of another was first expressed by this Court in Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). Since that time, the doctrine has been narrowly applied and we have carefully limited the circumstances in which such relief is available. In considering potential expansions of the relief permitted under Portee, we have never concluded that it can be applied to the observation of a death, however traumatic, by one who did not share a close familial relationship or intimate, marital-like bond with the victim.

The question that we confront today is whether a bond with a pet meets that carefully circumscribed criteria. Although we recognize that many people form close bonds with their pets, we conclude that those bonds do not rise to the level of a close familial relationship or intimate, marital-like bond. We therefore decline to expand the traditionally and intentionally narrow grounds established in Portee to include claims arising from the death of a pet.

We reach this conclusion for three essential reasons. First, we do so because expanding the cause of action recognized in Portee to include pets would be inconsistent with the essential foundation of the Portee claim itself. Second, creating a cause of action based on observing the death of a pet would result in an ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings. Third, creating a new common law cause of action of this type would conflict with expressions of our Legislature found in both the statutory cause of action designed to address wrongful death of humans and in the statutes that govern rights and responsibilities of dog owners.

The bond shared between humans and animals is often an emotional and enduring one. Permitting it to support a recovery *208for emotional distress, however, would require either that we vastly expand the classes of human relationships that would qualify for Portee damages or that we elevate relationships with animals above those we share with other human beings. We conclude that neither response to the question presented would be sound.

I.

The essential facts were developed in the course of a bench trial during which only plaintiff testified. Because plaintiffs claim for emotional distress had been dismissed prior to trial, that proceeding was limited to the receipt of evidence about the events that led to the dog’s death and the value of plaintiffs dog. Nonetheless, the evidence is sufficient to permit us to evaluate the basis for plaintiffs appeal to this Court.

On June 7, 2007, plaintiff was walking along a street in Morris Plains with her dog Angel, a nine-year old “maltipoo.”1 According to plaintiff, a large dog, belonging to defendant Chariot Lamm, ran out from defendant’s house. That dog, which was growling and snarling, stopped and sniffed plaintiffs dog, then looked at her and paused. After a moment, the larger dog grabbed plaintiffs dog by the neck, picked it up and shook it several times before dropping it and returning to defendant’s yard. According to plaintiff, she screamed and tried to figure out if she could help *209the dog before attempting to telephone for help. She later learned that her dog had died.

Plaintiff bought the dog in 1997 from a neighbor whose maltese had been bred to a poodle and who had previously sold such puppies to others in the neighborhood. Plaintiff testified that she paid $200 for the dog as a puppy and she was permitted to testify that she believed, based on her research on the internet, that a new puppy would cost an average of $1,395.

At the time plaintiff acquired the dog, she lived with her husband and three sons. Plaintiff and her husband later separated and her three children all grew to adulthood and moved out of the home, at which point plaintiff lived alone with the dog. Plaintiff described the dog as a “friendly, lively, energetic dog” that loved children. She also described the dog as being highly trained and capable of performing many tricks that it had been taught by plaintiff and her family. Plaintiff also testified that she has not replaced the dog since the incident that led to the dog’s death.

Because of the limited focus of the trial, plaintiff did not offer evidence about the nature or extent of her emotional distress, but she did testify about her relationship with the dog. According to that testimony, the dog was very happy to see her when she came home, the dog slept in a bed near hers in the bedroom, and the dog was with her much of the time because she did not work outside of the home.

Plaintiffs complaint alleged in its first count that defendant was negligent in maintaining her dog and demanded compensatory damages. In the second count of the complaint, plaintiff alleged that, as a result of witnessing the events up to and including the dog’s death, she suffered significant and continuing emotional distress and discomfort and demanded damages for that emotional distress.

Defendant moved for partial summary judgment, seeking dismissal of plaintiffs emotional distress claim. In ruling on that *210motion, the court noted that the law categorizes dogs as a foi’m of personal property. Although expressing sympathy to plaintiff for the loss she felt, the court observed that there is no cause of action in New Jersey that permits an emotional distress claim based on the loss of property. For those reasons, the court dismissed plaintiffs emotional distress claim and limited plaintiffs claim for damages to the dog’s intrinsic value.

Thereafter, defendant stipulated to liability and both parties waived their right to a jury trial. At the close of the evidence, the court placed its findings and conclusions on the record. In determining the appropriate measure of damages, the court considered the original and replacement costs for the dog as well as the value of the extent of the dog’s training and the tricks it could perform. In particular, the court recognized that “the loss and [plaintiffs] expectation of having the benefit of these ... tricks and desirable behaviors in a companion over the course of many years,” was relevant to the quantum of damages. Taking these factors into account, the court found that it would be inappropriate to limit the award of damages to the dog’s replacement cost because that would not compensate plaintiff for the loss of a well-trained pet. After weighing these considerations, the court awarded plaintiff $5,000 in compensatory damages.

Plaintiff appealed the dismissal of her emotional distress claim, arguing that although New Jersey does not permit a pet owner such as plaintiff to recover for emotional distress, the better rule would be to recognize the cause of action for the loss of a companion dog. In opposition, defendant argued that the law is clear that only economic damages can be recovei'ed for the loss of a pet. Defendant urged the appellate panel not to permit plaintiffs claim to proceed, warning that it would set a dangerous precedent to expand the scope of bystander recovery to non-humans.

The Appellate Division affirmed the judgment of the trial court in an unpublished opinion, holding that plaintiffs damages are limited to the lost value of the dog. In reaching its decision, the *211panel began with its observation that the parameters that govern any claim for a bystander’s recovery for emotional distress, first set forth by this Court in Portee, have been strictly limited. Turning to the framework established for determining whether it is appropriate to recognize a new cause of action, see Kelly v. Gwinnell, 96 N.J. 538, 544-45, 476 A.2d 1219 (1984), the panel concluded that none of the factors that make up that framework would support recognizing the claim that plaintiff sought to pursue.

In its evaluation, the appellate panel observed that the nature of the risk of an attack by another dog and the need to control other dogs are addressed by statutes governing dogs. In addition, the panel concluded that an evaluation of whether there are societal interests that militate in favor of creating a remedy of the type plaintiff requests as a deterrent to irresponsible pet owners is more appropriately addressed by this Court or the Legislature. As a result, the appellate panel declined to expand the existing emotional distress claim to permit plaintiff to proceed on that count of her complaint.

II.

Plaintiff raises three arguments in support of her request that bystander recovery for negligent infliction of emotional distress be expanded to include a dog owner who witnesses the death of a companion dog.

First, plaintiff argues that an owner’s relationship with a companion dog or other pet should be considered to be a close familial relationship of the kind this Court recognized was essential to the cause of action in Portee. She contends that pets should no longer be considered to be mere personal property and that a person’s relationship with a pet is of a higher order than any relationship with inanimate property. She asserts that pets are therefore entitled to different treatment in tort law. Plaintiff contends that if a person suffers a serious emotional response to witnessing an *212accident in which a loved one is killed, the identity of the loved one should be of no consequence to the right to recover.

Second, plaintiff argues that the decisions in other jurisdictions that have not allowed a claim of emotional distress for the death or serious injury of a pet are easily distinguished from the framework established by this Court in Portee, supra, 84 N.J. at 98, 417 A.2d 521. She urges this Court to adopt the logic and policy rationale found in the eases in which other jurisdictions have recognized a cause of action for emotional distress relating to the death of a pet, asserting that they represent the sounder reasoning and the better approach to the question.

Finally, plaintiff argues that public policy concerns about a potential flood of litigation that will overload already burdened courts are unwarranted, and asks this Court to reject them as lacking in merit.

Defendant raises four arguments in opposition to plaintiffs position and in support of the assertion that the Appellate Division properly held that plaintiffs damages are limited to the monetary value of the dog.

First, defendant argues that New Jersey law treats pets, including companion dogs, as chattel, which limits the measure of compensatory damages to the value of the dog. Defendant explains that monetary recovery for pecuniary losses does not permit consideration of such factors as sympathy or other intangible elements and that permitting the cause of action sought by plaintiff would do so.

Second, defendant argues that the Court should not consider creating a new emotional distress claim for pet owners because it would be inconsistent with the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 to -6. Because that statutory cause of action limits recovery for the death of a human to economic loss and does not permit recovery for mental illness, grief, or loss of companionship, see, e.g., Carey v. Lovett, 132 N.J. 44, 67-68, 622 A.2d 1279 (1993); Gangemi v. Nat’l Health Labs., Inc., 291 N.J.Super. 569, *213575-76, 677 A.2d 1163 (App.Div.1996), defendant argues that the Court should not create a more expansive standard for the death of a pet.

Third, defendant argues that public policy considerations weigh against creating the requested cause of action for emotional distress. She points out that the Legislature has already addressed the societal interest in encouraging dog owners to control their animals through statutes governing dogs.

Finally, defendant argues that the Court’s decision in Portee, supra,, 84 N.J. at 98, 417 A.2d 521, was concerned solely with the relationships between humans and that it was intentionally limited to emotional distress claims arising from personal relationships with other people. She warns that creating a new cause of action will cause a dramatic increase in litigation in part because it will be difficult, if not impossible, to articulate the elements of such a claim, leaving too many questions for future cases and threatening to overly expand Portee to include all types of property.

III.

We begin our consideration of the issue raised on appeal with an explanation of the historical developments relating to the Portee doctrine, following which we consider the role that pets play in the lives of their owners and whether recognizing the cause of action plaintiff requests would be consistent with Portee.

A.

Historically, plaintiffs could only recover for emotional anguish arising from a defendant’s negligence if the plaintiff suffered some form of physical injury in addition to the emotional injury. See Jablonowska v. Suther, 195 N.J. 91, 102, 948 A.2d 610 (2008) (citing Ward v. W. Jersey & Seashore R.R. Co., 65 N.J.L. 383, 384, 47 A. 561 (Sup.Ct.1900)). The requirement that emotional injury be accompanied by a physical injury arose in part from a policy concern that emotional injuries could be more “ ‘easily feigned *214without detection.’ ” Ibid, (quoting Ward, supra, 65 N.J.L. at 386, 47 A. 561).

The historical physical injury requirement was eventually replaced by a requirement that the plaintiff be within the “zone of risk,” but this was only a permissible substitute if accompanied by the risk of substantial bodily injury or sickness. See Caputzal v. Lindsay Co., 48 N.J. 69, 76-77, 222 A.2d 513 (1966) (holding that water softener manufacturer could not be held liable for plaintiffs heart attack, which resulted from his anxiety that his tap water had poisoned him); Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965) (permitting recovery if plaintiff placed in reasonable fear of personal injury).

The evolution in the requirements for an emotional distress claim culminated in this Court’s decision in Portee, supra, 84 N.J. at 97-98, 417 A.2d 521. The facts that the Court considered in Portee give context to the decision and illustrate the reasons that supported it. Plaintiffs son was trapped between the outer door of an elevator and the wall of the elevator shaft and was dragged between floors. Id. at 91, 417 A.2d 521. Police attempts to rescue the child continued for four and one-half hours, during which plaintiff heard her son moan and cry out and saw him as he flailed his arms. Eventually, she watched helplessly as her child died. Ibid. After her son’s death, the plaintiff became severely depressed and self-destructive. Id at 91-92, 417 A.2d 521.

Among other claims, the plaintiff in Portee filed suit seeking to recover damages for her mental and emotional distress. Id. at 92, 417 A.2d 521. Although both the trial and appellate courts dismissed plaintiffs claims, this Court reversed, holding that she had stated a claim for negligent infliction of emotional distress. Id. at 98-99, 417 A.2d 521. Relying on a decision of the California Supreme Court, id. at 97-101, 417 A.2d 521 (citing and discussing Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968)), this Court identified four elements that a plaintiff must prove to recover for emotional distress as a bystander: “(1) the death or serious physical injury of another caused by defendant’s *215negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress.” Id. at 101, 417 A.2d 521. In the three decades since Portee was decided, the four-element test has remained in place as the framework for a bystander’s emotional distress claim in New Jersey.

The four elements were intentionally designed to create a narrow class of claimants who could be readily identified, to fix criteria that could not be easily feigned, and to identify those who were foreseeable plaintiffs. See id. at 97-101, 417 A.2d 521; see also J. Mark Appleberry, Note, Negligent Infliction of Emotional Distress: A Focus on Relationships, 21 Am. J.L. & Med. 301, 309-10 (1995) (discussing relationship of Dillon elements to foreseeability). Therefore, “recovery for negligent infliction of emotional harm requires that it must be reasonably foreseeable that the tortious conduct will cause genuine and substantial emotional distress or mental harm to average persons.” Decker v. Princeton Packet, Inc., 116 N.J. 418, 430, 561 A.2d 1122 (1989).

Because this appeal only requires consideration of whether a pet can fulfill Portee’s requirement that the relationship qualify as “a marital or intimate[ ] familial” one, Portee, supra, 84 N.J. at 101, 417 A.2d 521, we focus only on that element. In Portee, this Court described the existence of an intimate familial relationship as the “most crucial” of the four inquiries. Id. at 98-99, 417 A.2d 521. We explained that “the presence of deep, intimate, familial ties between the plaintiff and the physically injured person ... makes the harm to emotional tranquility so serious and compelling.” Ibid. We held that an intimate familial relationship is “an essential element of a cause of action for negligent infliction of emotional distress.” Id. at 99, 417 A.2d 521.

Four years after Portee was decided, the Appellate Division considered the degree of the relationship necessary to recover as a bystander under the Portee theory. See Eyrich ex rel. Eyrich v. Dam, 193 N.J.Super. 244, 255-59, 473 A.2d 539 (App.Div.), certif. *216denied, 97 N.J. 583, 483 A.2d 127 (1984). The plaintiffs in Eyrich asserted that they had a close relationship with their five-year-old neighbor and that they viewed him as the son they never had. Id. at 247-48, 473 A.2d 539. The question was whether that relationship sufficed for Portee purposes after they saw the child attacked and mauled by a circus animal. Id. at 251-52, 473 A 2d 539. In concluding that it did not, the appellate panel drew a distinction between the two plaintiffs. The court permitted Mr. Eyrich’s claim to proceed because he attempted to save the child, thus entitling him to the status of rescuer that served as an independent ground for recovery. Id. at 255-59, 473 A.2d 539. The Appellate Division barred Mrs. Eyrich’s claim, however, because she was not involved in the rescue and because she was “not bound to the child by intimate family ties,” thus precluding her from bystander recovery. Id. at 259-61, 473 A.2d 539.

This Court thereafter considered the scope of relationships that meet the test of an “intimate familial” one in a claim for emotional distress by plaintiff who witnessed the death of her flaneé. Dunphy v. Gregor, 136 N.J. 99, 103-14, 642 A.2d 372 (1994). We recognized that New Jersey courts had applied the Portee elements restrietively, id. at 106, 642 A.2d 372, but concluded that a plaintiff who was engaged to and cohabiting with the victim had a sufficiently close relationship to proceed with her claim. Id. at 115, 642 A.2d 372. We did so in part because we declined to draw an arbitrary line between married and unmarried persons, id. at 108, 642 A.2d 372, but we left it to the jury to decide whether the particular relationship sufficed, id. at 111-12, 642 A.2d 372. Even so, we were careful to explain the evaluation of the relationship must be considered in light of the degree of intimacy required. Id. at 112, 642 A.2d 372. We stressed that

this critical determination must be guided as much as possible by a standard that focuses on those factors that identify and define the intimacy and familial nature of such a relationship. That standard must take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and ... ‘whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, *217and the manner in which they related to each other in attending to life’s mundane requirements.’

[Ibid, (quoting Dunphy v. Gregor, 261 N.J.Super. 110, 123, 617 A.2d 1248 (App.Div.1992)).]

Ultimately, we concluded that persons engaged to be married and living together may fall into the category of relationships that are deep, enduring, and genuinely intimate, and that therefore the relationship could be one that would meet Portee’s requirement that the harm to the bystander be foreseeable. Id. at 109-10, 417 A.2d 521.

Our most recent discussion of the Portee doctrine came in the context of our analysis of a plaintiffs effort to recover for emotional distress arising from an automobile accident in which she witnessed her mother’s injury, suffering and death as they were trapped in their vehicle. See Jablonowska, supra, 195 N.J. at 95-97, 948 A.2d 610. There, we considered the interplay between plaintiffs’ conceded lack of a sufficient physical injury to meet the verbal threshold requirement found in the Automobile Insurance Cost Reduction Act of 1998, N.J.S.A. 39:6A-8(a), and the eognizability of a Portee claim, Jablonowska, supra, 195 N.J. at 105-12, 948 A.2d 610. Our conclusion that the Portee claim was independent of the verbal threshold requirements did not require us to consider the sufficiency of the familial relationship.

As these precedents make plain, our analysis of the nature of the relationship between the claimant and the decedent has been carefully limited; not even all humans are engaged in a relationship that is sufficiently close to support such an award. The question, then, is whether plaintiff has identified good and sound reasons to extend the scope of the Portee claim to pets.

B.

We begin with an analysis of the essential underpinnings on which plaintiff bases her request that we recognize this cause of action. Those points, for our analytical purposes, include her contentions about the role that pets play in the lives of their *218owners and the principles identified in the decisions reached by-other jurisdictions that have confronted the question now before this Court.

Plaintiffs arguments concerning the expansion of the Portee cause of action rest on the assertion that pets play a role in the lives of their owners that cannot be equated with property and that the loss of a pet therefore cannot be fairly compensated by resort to property loss principles. Fundamental to this aspect of her argument is the implicit assumption that there is a class of animals, referred to as companion animals, see Debra Squires-Lee, Note, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L.Rev. 1059, 1059 & n. 2 (1995) (explaining genesis and implications of companion animal designation), with which an owner, referred to as an animal guardian, id. at 1062, interacts in a manner akin to a relationship with other humans, id. at 1062-63.

Those underlying presumptions, in turn, give rise to the argument that courts must abandon the historical legal categorization of pets as a form of property and permit compensation commensurate with the special status to which their role in the lives of humans is entitled. Ibid. In attempting to define the features by which courts can identify companion animals, and thereby distinguish between them and any other kind of animals with which people interact, the commentators on this subject have suggested that we look to

the relationship that they share with their guardians. Humans and companion animals share their lives; daily emotional and social interactions establish a bond and a connection. “With companion animals it is the relationship itself which is important to the owner-.’ Each relationship depends on the personalities and nature of the individuals involved.

[Id. at 1065 (citation omitted).]

Although plaintiff does not expressly ask this Court to embrace this theory or the definitions it proposes, her arguments on appeal require us to recognize this underlying premise as part of our analysis of whether plaintiffs proposed cause of action comports *219with our existing Portee jurisprudence and how adopting it would work in practice.

Plaintiff does expressly invite this Court to find persuasive the reasoning of those jurisdictions that have permitted recovery in circumstances similar to her own, while rejecting the reasoning of the majority of other jurisdictions that have declined to do so. Numerous other jurisdictions have considered whether to permit recovery for emotional distress for pet owners witnessing the death or injury of their pet. See Jay M. Zitter, Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals, 91 A.L.R. 5th 545, [3] (2012) (collecting cases).

The majority of jurisdictions that have considered whether pet owners should be permitted to recover for emotional distress arising from the death of the pet have declined to authorize the cause of action. See, e.g., Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 279 (Ariz.Ct.App.2009) (holding that “we are unwilling to expand Arizona common law to allow a plaintiff to recover emotional distress or loss of companionship damages for a pet negligently injured or killed”); Nichols v. Sukaro Kennels, 555 N.W.2d 689, 691-92 (Iowa 1996) (electing to follow majority of jurisdictions in denying recovery for mental distress); Koester v. VCA Animal Hosp., 244 Mich.App. 173, 624 N.W.2d 209, 211-12 (2000) (declining to recognize cause of action); Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884, 892 (1999) (denying recovery for emotional damages for death of animal); Jason v. Parks, 224 A.D.2d 494, 638 N.Y.S.2d 170, 170 (N.Y.App.Div.1996) (same); Strawser v. Wright, 80 Ohio App.3d 751, 610 N.E.2d 610, 612 (1992) (same); Miller v. Peraino, 426 Pa.Super. 189, 626 A.2d 637, 640 (1993) (same); Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181, 187 n. 4 (2006) (collecting cases that decline to recognize cause of action because animals are deemed personal property); Pickford v. Masion, 124 Wash.App. 257, 98 P.3d 1232, 1235 (2004) (denying recovery for loss of companionship); Carbasho v. Musulin, 217 W.Va. 359, 618 S.E.2d 368, 371 (2005) (denying recovery for emotional damages for death of