The Smiths sued the Foglias under the Wisconsin statute pertaining to dog owner liability. Liability was not a significant issue, but the parties disputed damages.

The Smiths argued that they were entitled to recover all veterinary expenses and related expenses totaling over $12,000. The Smiths contended that the attacking dog's owners had notice that the dog had previously caused injury and, therefore, the Smiths' full damages were subject to doubling under WIS. STAT. § 174.02(1)(b).

The Foglias' insurers sought a declaratory ruling. The insurers argued that, under Wisconsin law, a plaintiff's recovery for damage to a dog was no different than recovery for damage to any other property. As such, according to the insurers, the Smiths' maximum recovery under the circumstances was the lesser of the dog's “cost of repair” and the dog's pre-injury fair market value.

The parties agreed that a replacement puppy of the same breed would cost $2,695, and the insurers argued that this amount was the best estimate of pre-injury fair market value. Thus, the insurers argued that $2,695 was the limit on damages. The insurers conceded that, because of the dangerous dog notice provision in Section 174.02(1)(b), that amount could be doubled.

The trial court agreed with the insurers' argument. Accordingly, it limited the Smiths' damages to $2,695, an amount that was doubled to $5,390 pursuant to the doubling provision.

The Smiths appealed, arguing that family pets were like heirlooms, keepsakes, and family pictures that had greater emotional and sentimental value than the value the property had on the open market and that just as the law allowed more than fair market value damages when it came to heirlooms and keepsakes, it should do the same for family pets.

Wisconsin Law

Wisconsin law imposes liability on a dog's owner:

for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.

WIS. STAT. Section 174.02(1)(a) (emphasis added).

The Wisconsin Appellate Court's Decision

The court affirmed.

In its decision, the appellate court rejected the Smiths' argument that a special damages rule should be applied to pets.

It explained that, as the Smiths conceded, under Wisconsin law, dogs were “personal property.” Generally speaking, the court continued, the general rule for damaged personal property that was repairable was that recovery was limited to the lesser of (1) the diminution in value, and (2) the cost of repair, but that, in any event, recovery was limited to pre-injury fair market value.

The appellate court then declined to extend Wisconsin's “keepsakes” rule – under which, when determining value, consideration may be given to “the description of the article, its original cost, and facts relative to its association with the owner or his family, as well as the opinion of the owner” – to pets.

The appellate court stated that there were “obvious and significant differences between an unrepairable and lost forever keepsake” and an “injured” but “repairable” pet.

The appellate court specifically rejected the Smiths' claim for damages that they argued were not property damages, including the cost of a pet crate ($84.39), a pet pen ($65.40), mileage for repeated trips of significant distance between the Smiths' home and the location of veterinary care ($1,242), lost wages for missing work to attend to the dog's care ($810), and “nominal” damages that Cary Smith suffered in missing her stepson's high school graduation ($500). As to the crate, pen, mileage, and missed work, the appellate court agreed with the insurance companies that these were “property damages subject to the property damage limitation” and were “expenses incurred by the Smiths to facilitate 'repairing' their dog.” The appellate court concluded that, with respect to the $500 in alleged “nominal” damages, there was no authority to add that amount to their damages.

The case is Smith v. Wisconsin Mutual Ins. Co., No. 2015AP1499 (Wisc. Ct.App. April 7, 2016).

FC&S Legal Comment

States appear to be somewhat divided on the issue.

For example, Kansas and California cases authorize damages for reasonable veterinary care and treatment but do not limit such damages to the market value of the pet. See Martinez v. Robledo, 147 Cal.Rptr.3d 921, 922, 925-26 (Cal. Ct.App. 2012); Burgess v. Shampooch Pet Indus., 131 P.3d 1248, 1252-53 (Kan. Ct.App. 2006).

Other states, such as Minnesota and Ohio, essentially apply the damages rule applied by Wisconsin courts. See Soucek v. Banham, 524 N.W.2d 478, 481 (Minn. Ct.App. 1994); Sokolovic v. Hamilton, 960 N.E.2d 510, 513-14 (Ohio Ct.App. 2011).