Recoverable Damages for Killing a Pet

The Court of Appeals was recently faced with a tragic case involving the senseless slaying of a dog and the resulting spirited debate over the interpretation of a statute that addresses damages for the injury or death of a pet.

In Anne Arundel Cty. v. Reeves, No. 68, Sept. Term, 2019 (Md. June 7, 2021), Chief Judge Barbera authored the majority opinion, holding that the statute unambiguously limits compensatory damages to the amount specified by that statute and does not allow recovery of noneconomic compensatory damages for the tortious injury or death of a pet. In a forceful dissent, Judge Hotten urged a broader reading of that statute that would allow recovery of noneconomic compensatory damages for the grossly negligent killing of a pet.

The case arose from an investigation into a series of burglaries in a residential neighborhood. Officer Price of the Anne Arundel County Police went from house to house late one afternoon, trying to learn information about those burglaries. When he went to the Reeves residence, he knocked on the door, and although it appeared that someone was home, no one came to the door. He later testified that he did not believe that any member of that household was involved in the burglaries, nor did he have any “cause for concern” as he approached the house. He was standing outside, writing notes in his notepad, when a Chesapeake Bay Retriever ran from the house. Officer Price later claimed that the dog growled and barked at him, jumped on him, and that he was afraid the dog was about to attack his face. Office Price fired two shots from his gun, striking and killing the dog.

The dog’s owner, Michael Reeves, sued Officer Price and Anne Arundel County, filing a multi-count complaint in the Circuit Court for Anne Arundel County. The central issue in the litigation ultimately involved the interpretation of Md. Code Ann., Cts. & Jud. Proc. (CJP) §11-110, which states that one “who tortiously causes an injury to or death of a pet while acting individually or through an animal under the person’s direction or control is liable to the owner of the pet for compensatory damages.” Pet is defined as “a domesticated animal,” and in the instance of a death, “compensatory damages” means “the fair market value of the pet before death and the reasonable and necessary cost of veterinary care.” At the time of the incident, the statute capped those damages at $7,500, although that cap has since been increased to $10,000.

At trial, four counts were sent to the jury: trespass to chattel; violation of the dog owner’s constitutional rights under Article 24 of the Maryland Declaration of Rights for the unlawful shooting of the dog; violation of the dog owner’s constitutional rights under Article 26 of the Maryland Declaration of Rights for the unlawful seizure of the dog; and gross negligence. The jury ruled for the plaintiff on both constitutional claims, but awarded $0 in damages for each claim. On the trespass to chattel claim, the jury awarded $10,000. As for gross negligence, the jury again found for the plaintiff, awarding $500,000 in economic damages and $750,000 in noneconomic damages. Relying on CJP §11-110’s cap, the trial judge reduced the trespass to chattel award to $7,500. Relying on the Local Government Tort Claims Act, CJP §§ 5-301 et seq., the judge reduced the gross negligence awards to $200,000.

In a divided unreported opinion, the Court of Special Appeals affirmed in part and vacated in part. The majority held that Section 11-110 did not restrict the plaintiff’s “total available damages to the capped amount stated in the statute. The majority reasoned that Brooks v. Jenkins [220 Md. App. 444 (2014)], a reported Court of Special Appeals opinion addressing the fatal shooting of a dog by a police officer, was controlling.” According to the intermediate court’s majority, “Brooks stands for the proposition that CJP §11-110 does not bar recovery for non-economic damages, at least when the tortfeasor has been grossly negligent.” (Presumably, this was why Mr. Reeves pled a count for gross negligence against Officer Price and the County.) The majority also concluded that the evidence was sufficient to support a finding of gross negligence.

Judge Friedman dissented. He read Section 11-110 to limit all compensatory damages, including noneconomic ones, to the amount stated in the statute. He also thought the evidence was not legally sufficient to support a finding of gross negligence.

The Court of Appeals disagreed with the intermediate court, holding “that CJP §11-110 limits the recovery for compensatory damages to the amount specified by the statute and does not allow recovery for noneconomic damages stemming from the tortious injury or death of a pet.” Writing for the majority, Chief Judge Barbera examined the statute’s plain language. Noting that “the expression of one thing is the exclusion of another”—and noting that the legislature’s language choice indicated legislative intent that the list of available damages was exhaustive—the majority concluded that the legislature intended to allow recovery only of specifically defined categories of damages, and noneconomic damages were not among them. The Court also read the statute in connection with other damage caps provisions in Title 11 of Courts and Judicial Proceedings, concluding that allowing recovery of noneconomic damages for injuring or killing a pet would lead to absurd results that were inconsistent with legislative intent.

The Court noted that the gross negligence and trespass to chattel claims arose from the same operative facts, and were “thus alternative legal theories for the same recovery.” Consequently, the plaintiff was entitled to just one recovery. And the sole loss before the Court that permitted a recovery was the death of the dog, “because the jury awarded no damages for the constitutional harms.” This proved to be a significant point, as both the plaintiff and the dissent relied heavily on the Court of Special Appeals’ decision in Brooks. They urged that Brooks allows an uncapped recovery for noneconomic damages where a police officer is grossly negligent in killing a pet.

Yet as the majority noted, the Brooks Court held that Section 11-110 did not cap a recovery for a constitutional tort. Brooks allowed an uncapped recovery of damages where a police officer deprived a pet owner of his or her constitutional rights by killing a pet through grossly negligent conduct. But the jury in the case before the Court had not awarded any damages for the constitutional violations. Thus “the analysis in Brooks is inapposite, and the only injury for which Mr. Reeves can recover is the death of his dog, which is limited to the capped amount in CJP §11-110.” The jury’s failure to award damages for the constitutional harm was crucial.

The majority conducted an exhaustive review of the statute’s legislative history, finding that the history supported its reading of the statute. And the Court also held that the evidence was legally sufficient to support the jury’s finding that Officer Price acted with gross negligence by shooting and killing the dog. The Court concluded: “However, pursuant to the single recovery rule and CJP §11-110, we reduce the total damages award to $7,500, consistent with the statutory cap at the time that this cause of action arose.”

Judge Hotten dissented. She cited the common-law rule that “a plaintiff may not recover emotional or non-economic damages for negligently caused personal or real property loss,” but then noted that fraudulent, malicious, or similarly inspired acts “provide a major exception to this general rule.” (emphasis in original). She noted that “Maryland common law has not clearly specified whether gross negligence is equivalent to ‘fraud, malice, or like motives’ especially in the context of tortious harm to pets.” Arguing that the Court is “bound to interpret statutes that displace common law as narrowly as possible,” Judge Hotten asserted that the Court “should have concluded that pets killed or injured with gross negligence may permit the recovery of emotional damages.”

Judge Hotten also discussed what she saw as several anomalies created by the Court’s holding. She went on to say that the Court’s “decision stands at odds with the modern trend of our sister jurisdictions that have recognized a greater right of recovery for injured or killed pets.” She buttressed that latter point by noting that “Marylanders have strong emotional bonds with their pets, especially their dogs,” and discussing the public policy reasons for expanding the scope of recoverable damages for causing tortious injury or death of a pet.

I think Judge Hotten made powerful and persuasive policy arguments for expanding that scope. I also agree, however, with Chief Judge Barbera that CJP §11-110 currently precludes recovery of those damages. Maybe the legislature will heed Judge Hotten’s call and consider legislation that addresses the special emotional bond between pet owners and their pets.

Brad McCullough represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings. For more information, contact him at 301-657-0734 or jbmcullough@lerchearly.com.