Opinion
Case No. 1:01-CV-117
July 23, 2001
OPINION
This matter is before the Court on Defendant's Motion to Dismiss Complaint or, in the Alternative, Motion for Summary Judgment. Defendant argues that Michigan law does not allow for the recovery of emotional distress damages from the loss of his dog. The Court grants the Motion.
BACKGROUND
On February 13, 1998, agents of the Immigration and Naturalization Service ("INS") visited Plaintiff's home because INS agents believed that Mario Reyes, a convicted felon, was at Plaintiff's home. Three officers from the Grand Rapids Police Department ("Department") accompanied the INS agents.
Two INS agents and an officer from the Department approached the front of the house, while two other INS agents and an officer from the Department approached the side of the house. INS Agent Adducci and Officer Duke went to the rear of the house. Plaintiff answered a knock on his front door, and told INS agents that Mario Reyes was living with him. Marion Reyes then invited the agents into the house.
The Mario Reyes living with Plaintiff was a different person than the Mario Reyes for whom INS was looking.
While this happened, Agent Adducci and Officer Duke placed a chair directly in front of the back door in effort to slow down anyone attempting to exit the house through the rear door. An officer from the side of the house yelled to Adducci and Duke that someone was moving quickly toward the back door. When the back door opened, Plaintiff appeared with only his right side exposed to the officers. Duke yelled "Grand Rapids Police" and Adducci also shouted "police." Duke ordered Plaintiff to put his hands in the air, and Plaintiff raised only his right hand. Duke ordered Plaintiff to raise both hands, and Plaintiff did so.
As Plaintiff stood in the doorway, the door flung open, and a Rottweiler dog jumped over the chair and into the backyard. The dog leapt at Duke's throat, and Duke raised his left hand to block his face and neck and to knock the dog off of him. As Duke backed up, the dog continued to run toward him. While backing away from the dog, Duke hit the dog in the head with his flashlight. The dog continued to approach Duke. Finally, the dog jumped at Duke's face, and both Duke and Adducci fired their guns at the dog. The shots proved fatal. During this, Plaintiff remained in the doorway of his house. He did not call the dog, nor did he attempt to restrain him.
Plaintiff also states that he answered the door with the dog on a collar and "choke chain." Plaintiff also states that the officer could see Plaintiff and the dog heading to the back yard, but no one made efforts to inform the officer in the back of the house. Plaintiff claims that he told the officers that the dog did not bite and that he could not raise both of his hands because he was holding onto the dog. Plaintiff further claims that the officers shot his dog because she ran to "her spot" in the back yard. In addition, Plaintiff claims that one of the shots came close to him.
Based on these facts, Defendant moves to dismiss Plaintiff's claims or, in the alternative, for summary judgment.
LEGAL STANDARDS Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a claim for "failure to state a claim up on which relief can be granted . . ." Rule 12(b) further states that "[i]f on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the [C]ourt, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
Rule 56
In reviewing a motion for summary judgment, this Court will only consider the narrow question of whether there are "genuine issues as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A motion for summary judgment requires that the Court view the "`inferences to be drawn from the underlying facts . . . in the light most favorable to the party opposing the motion.'" Matsushita Electric Ind Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The opponent, however, has the burden of showing that a "rational trier of fact [could] find for the non-moving party [or] that there is a `genuine issue for trial.'" Matsushita, 475 U.S. at 587. "The mere existence of a scintilla of evidence in support of plaintiff's position[, however,] will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).
ANALYSIS
In the instant case, Plaintiff filed suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., which states that the United States may be liable
for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b). Thus, for Defendant to be liable, a cause of action must arise under Michigan law, which is where the event occurred. See Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957); Sellers v. United States, 870 F.2d 1098, 1101(6th Cir. 1989). If Plaintiff's Complaint fails to state a tort claim under Michigan law, the Court has no jurisdiction to hear the claim. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994); Myers v. United States, 17 F.3d 890, 898-99 (6th Cir. 1994).
Michigan law does not allow for recovery of emotional distress damages resulting from the loss of personal property, and Michigan law has long held that pets are personal property. Ten Hopen v. Walker, 96 Mich. 236, 239 (1893).
In Koester v. VCA Animal Hospital, 244 Mich. App. 173 (2000), the Michigan Court of Appeals considered whether to award damages for emotional distress associated with the loss of a pet. In Koester, plaintiff left his dog at defendant's kennel. Id. at 174. When the plaintiff returned, he noticed that the dog's neck was swollen. Defendant drained an enlarged gland in the neck area and bandaged the dog's head and neck. Later, the plaintiff discovered his dog was dead. Id.
The plaintiff then filed a negligence action and pled damages including the plaintiff's pain and suffering, extreme fright, shock, mortification, and loss of the companionship of his dog. Id. The defendants filed a motion for summary disposition for failure to state a claim on which relief cant granted. Id. at 175.
After discussing the elements of a negligence claim, the Koester court acknowledged that pets are personal property in Michigan. Koester, 244 Mich. App. at 176. The Koester court further stated that no Michigan precedent permits the recovery of damages for emotional injuries allegedly suffered as a consequence of property damage. The court admitted it was sympathetic to plaintiff's position but deferred to the Legislature to create a remedy for pet owners as an independent cause of action for loss of companionship when a pet is negligently injured. Id. The Koester court then granted the defendant's motion and dismissed the case. Id. at 177.
This Court will not create an action that a Michigan Court has specifically left to the Legislature. Michigan does not allow for emotional distress damages resulting from the loss of a pet, and Plaintiff's claim must fail.
Furthermore, Plaintiff cannot recover for negligent infliction of emotional distress. Michigan courts have followed the principle set forth in the Restatement (Second) of Torts and refused to provide a remedy for individuals who claim damages for emotional distress caused by a defendant's negligence where the plaintiff has not suffered a definite and objective physical injury. See Rest.2d Torts, § 436A; Swickard v. Wayne Count. Med. Exam'r, 438 Mich, 536, 552 (1991).
Michigan law recognizes two kinds of claims for negligent infliction of emotional distress: a bystander claim, see Wargelin v. Sisters of Mercy Health Corp., 149 Mich. App. 75 (1986), and a "direct victim" claim, see Daley v. LaCroix, 384 Mich. 4 (1970). In a bystander claim, a plaintiff must establish: (1) the injury threatened of inflicted upon the third person was a serious one; (2) the shock resulted in actual physical harm; (3) the plaintiff is a member of the immediate family of the injured person; and (4) the plaintiff was present at the time of the accident, or at least suffered shock "fairly contemporaneous" to the accident. See Wargelin, 149 Mich. App. at 81. In a direct victim claim, a plaintiff can recover if a physical injury is produced as a result of emotional distress approximately caused by defendant's conduct. See Daley, 384 Mich. at 12. To recover on a direct victim claim, the plaintiff must show that (1) he suffered emotional distress as a result of defendant's negligent conduct; (2) the emotional distress manifested itself in a definite and objective physical injury; and (3) the emotional distress is about an occurrence with a reasonable basis." See Stites v. Sunstrand Heat Transfer, Inc., 660 F. Supp. 1516, 1526 (W.D.Mich. 1987) (citations omitted). Furthermore, general claims of physical distress, pain, and suffering are insufficient. See Meyerhoff v. Turner Constr. CO., 202 Mich. App. 499 (1994).
Even reading Plaintiff's Complaint in a light most favorable to him, it is clear that he fails to allege any physical injuries. In fact, the only related allegations are that Plaintiff "cried out in anguish," and the Defendant's actions frightened Plaintiff and caused him "emotional distress." This is simply not enough to sustain a motion for summary judgment as the Complaint does not allege a "definite and objective" physical injury.
Moreover, Plaintiff's Brief in Opposition fails to address the proper issue. In his Brief, Plaintiff states that a trial must occur to establish the actual "market value" of his pet. Plaintiff also argues that his claim is analogous to a bystander claim, but fails to state how the two are similar. Plaintiff spends the bulk of his time arguing that the trend in law is to allow Plaintiff's recovery. To support this argument, Plaintiff relies mostly on cases from other states, none of which are mandatory or even persuasive authority. Plaintiff completely misses the mark. The argument to be made was how Michigan law recognizes the recovery for emotional distress damages resulting from the loss of a pet, or personal property. Plaintiff failed to sufficiently argue this, indeed, because Michigan law does not recognize such recovery.
Like the Koester court, this Court is sympathetic to Plaintiff's loss of his dog. Also like the Koester court, however, this Court will not expand Michigan tort law but defers to the Michigan Legislature.
For these reasons, Defendant's Motion to Dismiss is granted, and Plaintiff's claims are dismissed. An Order consistent with this Opinion is forthcoming.
JUDGMENT
In accordance with an Opinion entered this day,
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Complaint or, in the Alternative, Motion for Summary Judgment (Dkt. No. 4) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with PREJUDICE.