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Superior Court of California
West Justice Center
8141 13th Street
Westminster, CA 92683
Small Claims Case No. 01WS05885
Filed: December 04, 2001
Plaintiff:
Higgins, Andrew
Defendant:
Rooks, Robert L.
All-Care Animal Referral Center
Plaintiff's Claim:
Defendant owes me the sum of $5,000.00, not including court costs,
because defendant through negligence lost and destroyed the remains of my pet
dog, Tango.
Trial date: 01/14/2002
NOTICE OF ENTRY OF JUDGMENT
Judgment was entered on 02/14/2002.
Defendant Rooks, Robert L. & All-Care Animal Referral Center shall pay
plaintiff Higgins, Andrew $500.00 plus costs of $80.00.
Judges Comments:
Higgins v. Animal Critical Care
Case submitted
The court denies the request to consolidate. It finds that the
cross-complaint served on plaintiff arises from the same set of facts. There is
no compulsory cross-complaint in small claims matters. The court believes that
the cross-complaint is filed against the plaintiff simply for the purposes of
delay and in order to allow defendants discovery which is unavailable in a small
claims action.
The court finds as follows:
Defendant misplaced and lost the ashes of Rottie named Tango.
The plaintiff has proven an ownership interest in the dog. The defendant is
liable to plaintiff under the following theories of liability.
Breach of contract
Negligence
Negligent infliction of emotional distress
The court finds that plaintiff suffered emotional distress as a result of the
negligently lost ashes of his dog. The court finds that these damages are
recoverable under the law based on the following cases.
Windeler v. Scheers Jewelers (1970) 8 Cal. App. 3d 844. This case
involves emotional distress recovery arising from the loss of rings with
sentimental value. The court found that emotional distress was a foreseeable
result of the breach of contract. Similarly, here the loss of Tango's ashes, a
dog which the owner spent thousands of dollars to keep alive, was foreseeable to
the defendant.
The court also notes the numerous cases in which morticians have been held
liable for emotional distress arising from mishandling of corpses. See e.g. Allen
v. Jones (1980) 104 Cal. App. 3d 207.
The courts finds that the plaintiff suffered severe emotional distress over
the loss of Tango and Tango's ashes. It notes that plaintiff's last bill in
excess of $500 has been forgiven by defendants. The court believes that
plaintiff's grief is primarily due to the loss of his dog and plaintiff has not
received any medical treatment for the loss.
The court awards plaintiff the amount of $500.
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