• The $36K Pellet
  • June 28, 2011 | Author: Gary A. Watt
  • Law Firm: Archer Norris A Professional Law Corporation - Walnut Creek Office
  • Every now and again an appellate decision comes down the pike with the banner, "they didn't, did they!?"  A recent decision, Kimes v. Grosser, 2011 Cal.App. LEXIS 671, is a notorious example.  Cat lovers, stop reading now.  But those annoyed by a neighbor's cat, dog, or even the neighbors themselves, here's your chance to take a deep breath.

    I don't know how much a box of pellets for a pellet gun costs these days.  But I am pretty confident that each pellet does not cost $36,000.  Yet, that is the minimum that it will probably cost the Grossers in damages for shooting their neighbor's cat.  No, I am not making this up.

    Annoyed by the cat, the Grossers got inspired to try to make a lasting impression on it.  And so, plaintiff alleges, they shot it.  With a pellet gun.  But apparently the cat still had at least one of its nine lives available, and survived, if only barely.  Surgery saved its life, but the cat was paralyzed.  The cat's meds exceed $36K.

    The Grossers moved in limine to exclude evidence of plaintiff's veterinarian expenses because the cat was "an adopted stray of very low economic value."  They contended that damages were limited to the amount by which the shooting reduced the cat's fair market value.  (Think of the old beater that hippie down the street drives, the one with all the rust and dents.  What's one more dent, right?)

    The trial court granted the motion because plaintiff would be unable to prove that the value of this cat exceeded the "cost of repair."  Under the usual rule, a plaintiff is limited to the lesser of the diminution of the property's market value caused by the injury, or the reasonable cost of repairing the property.  But in the case of the cat, the reasonable cost of repairing the property, er cat, far exceeded the cat's market value (before or after the shooting).  And so with no real prospect of proving damages under the general rule, plaintiff refused to go to trial and the court dismissed the case.

    But the Court of Appeal reversed.  The exception for property having little to no market value applied.  The proper measure is "the amount which will compensate for all the detriment proximately caused . . ."  (Civil Code section 3333.)  And so, when it comes to pets with little or no market value in comparison to special damages, costs incurred for care and treatment are admissible and a jury can decide whether such costs are reasonable. 

    Moral?  Avoid those self-help remedies, especially if violent impulses are involved.  And for pet owners, if such tragedy befalls you, then under Civil Code section 3333 the veterinarian's bills are recoverable.  And whether a pet dies or not, punitive damages are also available.  (Civil Code section 3340.)  Let's hope you never need to resort to these provisions.