Dog's life has 'intrinsic value,' New York judge finds.

Finding that a dog "is somewhere between a person and personal property," a New York trial court said a pet owner whose dog died following unauthorized surgery may seek damages beyond the purchase price of the animal.

In 1989, Herbert Erwin took his five-year-old registered mastiff to the Animal Medical Center in the Bronx for treatment of an infected callus on the dog" leg. The veterinarian told Erwin the callus could be surgically removed or it could be treated by draining it. Erwin opted for the latter, explicitly rejecting surgical treatment, according to court documents.

Erwin left his dog with the veterinarian for treatment. Instead of draining the sore, the veterinarian anesthetized the dog and surgically removed the callus. The dog died the next day due to complications from the anesthesia.

The dog owner asked another veterinarian in the office to perform an autopsy, and he asked that the dog's body be retained so he could collect it. No autopsy was performed, however, and the body had been disposed of by the time Erwin came to pick it up.

Erwin sued the veterinary practice for negligence, breach of warranty, and loss of companionship. He also sought emotional distress damages since the veterinarian failed to perform the autopsy and disposed of the body despite his wishes. (Erwin v. Animal Medical Center, No. 2603/95B (N.Y. Civ. Ct. Aug. 21, 1996).)

Bronx County Civil Judge Karen Smith threw out all but the negligence claims. No trial date was set to resolve them.

Smith ruled that New York's warranty statute applies to "goods," not rendered services and that loss of companionship and emotional distress damages cannot be claimed for the loss of personal property, which a dog is considered under New York law.

On the negligence claims, the defendant argued that, if damages are awarded, they must be limited to the fair market value of the dog. The court disagreed, citing previous cases where a pet's "intrinsic value" may be considered.

"[A dog] is not an inanimate thing that just receives affection; it also returns it," the court wrote, citing Corso v. Crawford, 97 Misc. 2d 530 (N.Y., Queens County Civ. Ct. 1979).

Smith, referring to still other cases, said a jury may also consider the dog's age, health, breed, training, usefulness, and any special traits of value, such as its guarding ability, when setting damages. "Depreciation," however, cannot be considered because "a good dog's value increases rather than fails with age and training," the court held.