Morrison Law Journal


The Morrison Law Journal September 2012 Volume VII, Edition 9 Guard That Dog: Court of Appeal Rules That Dog Owner May Recover Damages For Emotional Distress In Trespass To Chattel Claim After Neighbor Intentionally Hit Pet With Baseball Bat By: Edward F. Morriso n, Jr., Esq. Larry A. Schwartz, Esq.
In a decision that could impact recovery of emotional distress damages involving intentional trespass to chattel, the California Court of Appeal, Fourth Appellate District, ruled in the case Plotnik v. Meihaus (2012) DJDAR 12394 (“Plotnik case”), that a dog owner may recover damages for emotional distress for intentional trespass to chattel after a neighbor intentionally hit the plaintiffs’ pet with a baseball bat. The facts of the Plotnik case are unfortunately all too familiar. The Plotnik case involved a longstanding neighbor-to-neighbor dispute involving, among other things, fencing separating their properties. In that regard, plaintiffs David Plotnik and Joyce Plotnik moved with their children into a home in Laguna Niguel in 2003. The rear portion of the Plotniks' home slopes upward, abutting the property owned by John Meihaus, Jr. and his wife. Mr. and Mrs. Meihaus also had two adult children in their 20’s, Greg Meihaus and John Meihaus, III, who occasionally visited them (Mr. Meihaus and his sons are generally referred to herein as the “Meihaus family”). The Plotniks then built a six foot fence along the common boundary with the Meihaus family property. The Meihaus family then filed a lawsuit against the Plotniks, as well as the community association, which was settled by way of a written agreement in 2007. As relevant to the Plotnik case, numerous disputes occurred in 2008 and through April 2009, when the various disputes between the families came to a head. At that time, among other things, John Meihaus, Jr. is alleged to have taken a baseball bat and injured the Plotniks' family dog, Romeo, a 12 inch tall miniature pinscher. The dog required surgery to a leg at a cost of in excess of $2,600.00. The Plotniks then sued alleging various claims involving breach of contract, negligent infliction of emotional distress and intentional trespass to chattel. At trial, the jury awarded by way of special verdicts to David Plotnik $154,100.00 against John Meihaus, Jr., $12,000.00 against Greg Meihaus, and $9,500.00 against John Meihaus III, for a total recovery of $175,600.00. Joyce 1 Plotnik was awarded $255,209.53 against John Meihaus, Jr. The defendants then moved for a new trial, asserting the damage awards were excessive. The trial court conditionally granted the motion, but after plaintiffs accepted the remittitur, an amended judgment was entered reducing the overall awards by $30,000.00 as to David Plotnik and $50,000.00 as to Joyce Plotnik. The defendants still appealed. As relevant to this article, the Plotniks had sought damages from John Meihaus, Jr. on a cause of action for trespass to personal property and various negligence theories arising from Mr. Meihaus injuring the Plotniks' dog Romeo (by striking the dog with a baseball bat). In its opinion, which affirmed in part and reversed in part the lower court’s rulings, the Court of Appeal agreed that there could not be any award of emotional distress damages based on the negligence based claims. However, the Court of Appeal ruled that the plaintiffs could recover emotional distress damages under a trespass to personal property cause of action for emotional distress they suffered resulting from the defendants injuring the Plotniks' dog by striking the dog with a baseball bat. In that regard, after reviewing California case law, the Court of Appeal ruled that, while dogs are considered personal property, a recovery of damage for emotional distress under the circumstances of that case was permitted. The Court of Appeal distinguished negligence based cases denying emotional distress damages, ruling that, due to intentional trespass to personal property, emotional distress damages could be awarded. The Court of Appeal, however, went to some pains in explaining that its ruling which permitted the recovery of emotional distress damages was limited to intentional trespass to chattel and reversed all prior rulings awarding emotional distress damages based on negligence theories. The Plotnik case, although very fact intensive, will likely have an impact on tort awards, at least involving personal property. However, it should be noted that the award of emotional distress damages in the Plotnik case is limited to intentional trespass to chattel, and any award for emotional distress damages on a negligence theory will not likely stand. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to 2 have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or andusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 3

In a decision that could impact recovery of emotional distress damages involving intentional trespass to chattel, the California Court of Appeal, Fourth Appellate District, ruled in the case Plotnik v. Meihaus (2012) DJDAR 12394 (“Plotnik case”), that a dog owner may recover damages for emotional distress for intentional trespass to chattel after a neighbor intentionally hit the plaintiffs’ pet with a baseball bat.

The facts of the Plotnik case are unfortunately all too familiar. The Plotnik case involved a longstanding neighbor-to-neighbor dispute involving, among other things, fencing separating their properties. In that regard, plaintiffs David Plotnik and Joyce Plotnik moved with their children into a home in Laguna Niguel in 2003. The rear portion of the Plotniks' home slopes upward, abutting the property owned by John Meihaus, Jr. and his wife. Mr. and Mrs. Meihaus also had two adult children in their 20’s, Greg Meihaus and John Meihaus, III, who occasionally visited them (Mr. Meihaus and his sons are generally referred to herein as the “Meihaus family”). The Plotniks then built a six foot fence along the common boundary with the Meihaus family property. The Meihaus family then filed a lawsuit against the Plotniks, as well as the community association, which was settled by way of a written agreement in 2007.

As relevant to the Plotnik case, numerous disputes occurred in 2008 and through April 2009, when the various disputes between the families came to a head. At that time, among other things, John Meihaus, Jr. is alleged to have taken a baseball bat and injured the Plotniks' family dog, Romeo, a 12 inch tall miniature pinscher. The dog required surgery to a leg at a cost of in excess of $2,600.00.

The Plotniks then sued alleging various claims involving breach of contract, negligent infliction of emotional distress and intentional trespass to chattel. At trial, the jury awarded by way of special verdicts to David Plotnik $154,100.00 against John Meihaus, Jr., $12,000.00 against Greg Meihaus, and $9,500.00 against John Meihaus III, for a total recovery of $175,600.00. Joyce

Plotnik was awarded $255,209.53 against John Meihaus, Jr. The defendants then moved for a new trial, asserting the damage awards were excessive. The trial court conditionally granted the motion, but after plaintiffs accepted the remittitur, an amended judgment was entered reducing the overall awards by $30,000.00 as to David Plotnik and $50,000.00 as to Joyce Plotnik. The defendants still appealed.

As relevant to this article, the Plotniks had sought damages from John Meihaus, Jr. on a cause of action for trespass to personal property and various negligence theories arising from Mr. Meihaus injuring the Plotniks' dog Romeo (by striking the dog with a baseball bat).

In its opinion, which affirmed in part and reversed in part the lower court’s rulings, the Court of Appeal agreed that there could not be any award of emotional distress damages based on the negligence based claims. However, the Court of Appeal ruled that the plaintiffs could recover emotional distress damages under a trespass to personal property cause of action for emotional distress they suffered resulting from the defendants injuring the Plotniks' dog by striking the dog with a baseball bat. In that regard, after reviewing California case law, the Court of Appeal ruled that, while dogs are considered personal property, a recovery of damage for emotional distress under the circumstances of that case was permitted. The Court of Appeal distinguished negligence based cases denying emotional distress damages, ruling that, due to intentional trespass to personal property, emotional distress damages could be awarded. The Court of Appeal, however, went to some pains in explaining that its ruling which permitted the recovery of emotional distress damages was limited to intentional trespass to chattel and reversed all prior rulings awarding emotional distress damages based on negligence theories.

The Plotnik case, although very fact intensive, will likely have an impact on tort awards, at least involving personal property. However, it should be noted that the award of emotional distress damages in the Plotnik case is limited to intentional trespass to chattel, and any award for emotional distress damages on a negligence theory will not likely stand.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to

have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or andusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.