Posts Tagged ‘civil code’

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

In what seems to be a trend of new cases expanding the rights of pet owners, the Court of Appeal for the Second District recently ruled that the usual standard of recovery for a dead or injured pet (market value) is inadequate when applied to injured pets.

The recent case, Martinez v. Robledo, (2012) 2012 Cal. App. LEXIS 1098, which was actually the consolidation of two similar cases, presented the legal issue: What is the measure of damages for the wrongful injury of a pet?

In both of the consolidated cases, the trial court ruled that the measure of damages would be limited to the market value of the injured dogs.

On Appeal, the Court held that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

The Court reasoned:

“There can be little doubt that most pets have minimal to no market value, particularly elderly pets. As amicus notes, while people typically place substantial value on their own animal companions, as evidenced by the large sums of money spent on food, medical care, toys, boarding and grooming, etc., there is generally no market for other people’s pets.   We agree that the determination of a pet’s value cannot be made solely by looking to the marketplace. If the rule were otherwise, an injured animal’s owner would bear most or all of the costs for the medical care required to treat the injury caused by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases be minimal, no matter how horrific the wrongdoer’s conduct or how gross the negligence of a veterinarian or other animal professional.”

Using the notion that tort law was designed such that injured parties are to be “made whole,” the Court held, “that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.”

Thus, with this ruling, those who have the misfortune of having their pets injured by another are no longer constrained to the mere market value of their fuzzy friends.  Instead, owners may now recover reasonable costs incurred for the treatment and care of the pet which arose as a result of the injury.

As an animal lover, I believe this ruling is long since overdue and I am pleased to see the Court recognizing that pets have some intrinsic value beyond their mere market or replacement price.

NOT IN MY CAR: WHY THE REPAIR SHOP WILL BE LIABLE FOR A JOY RIDE

June 20, 2012

By Sara B. Morgan, Esq.

A coffee-run to my local Starbucks (Brockton and Arlington) prompted my last article about the liability of an automotive repair or service shop for damage to a vehicle left in its care. Since posting my last article, I am happy to report that I have not seen any other mechanics using customer’s cars to pick up coffee.

Garages and other vehicle repairers would be wise to heed the warning, however. As previously discussed, a vehicle repairer is fully liable to the car owner for any damage which occurs when the vehicle is used without the customer’s consent. Civil Code, Sections 1835 and 1836. Presumably, this would include using a customer’s car to take a joy ride to get coffee at Starbucks. In these situations, the vehicle repairer bears the burden of proof to demonstrate it was free from fault or negligence. Downey v. Martin Aircraft Serv. (1950) 96 Cal. App. 2d 94.

Finally, the law prevents a customer from signing away this protection. In Gardner v Downtown Porsche Audi (1986) 180 Cal. App. 3d 713, the court held that an automobile repair garage may not limit its liability for negligent care of the vehicles entrusted to it by having customers sign a written disclaimer. The Gardner court relied on the premise that contractual clauses which purport to exculpate repair garages for liability for negligence violate Civil Code, Section 1668 and are invalid as contrary to public policy.

In most circumstances, the vehicle repairer’s liability for its negligence, or the negligence of its employees, is limited to the value of the vehicle left in its care. Civil Code, Section 1840. However, exceptions exist which may involve fraud or misrepresentation. If you believe you are the victim of wrongful conduct and have suffered damages or injuries, it is important to consult with an experienced, knowledgeable attorney.

The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

NOT IN MY CAR: WHY THE TEST DRIVE SHOULD BE LIMITED TO TESTING

June 13, 2012

By Sara B. Morgan, Esq.

One recent morning while leaving my local Starbucks drive-thru, I waited while two men wearing mechanic uniforms crossed the parking lot to what I assumed was their vehicle. I thought nothing more of this until, several days later, I saw the same men, again clad in uniforms, only this time walking to a different vehicle. This time, I noticed the fluorescent writing on the rear window, and suddenly realized these were auto service or repair men who were using customer vehicles to get their morning coffee!

A vehicle repairer to whom a vehicle is delivered has the usual duty of ordinary care and liability of a bailee for hire. Civil Code, Section 1852. The vehicle may not be used for any purpose without the customer’s consent, and the vehicle repairer is responsible for any damage which occurs when the vehicle is used without the customer’s consent. Civil Code, Sections 1835 and 1836.

Now, being the daughter of a mechanic, I appreciate the importance of the post-service test drive. However, I doubt that those customers anticipated the extra risks these men were taking in exposing their vehicles to the small, busy, bustling shopping center, particularly at the height of the Starbucks morning rush. Nor is it likely they would anticipate the vehicle repairer’s employees consuming food and beverages inside their vehicles. Thus, in addition to liability for any fender-benders, the vehicle repairer would also arguably be liable for any stains or cleaning fees in order to restore the vehicle to the condition it was in at the time the customer left it with the repair shop.

Slander Conviction Being Appealed by Knox

February 7, 2012

By Sara B. Morgan, Esq.

Recent reports indicate that former exchange student, Amanda Knox, has filed an appeal of her conviction in Italy for slander (click link here). It is alleged that Knox slandered an Italian bar owner during the course of the investigation into the murder of Meredith Kercher, for which Knox was convicted but later freed. Apparently, Knox falsely accused the Italian bar owner of involvement in the murder.

The laws defining slander vary from jurisdiction to jurisdiction. For instance, in California, slander can be defined as:

“a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

Civil Code, Section 46. It is distinguished from libel, which is essentially slander in writing, based on the way it is communicated. See Civil Code, Section 45.

The validity of a potential slander claim varies based on the circumstances in which it arises, and it is important to discuss the details of any situation with a well-qualified attorney as soon as possible. At Heiting & Irwin, we have in excess of 35 years representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.