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Emotional Distress Case Analysis

For purposes of the analysis, we can assume that the child did suffer emotional distress, and that it was severe. However, the most likely cause of that distress was the killing of his dog, rather than being chased with dog feces.

Pursuant to Rabideau v. City of Racine, 2001 WI 57, 243 Wis.2d 486, 627 N.W.2d 795, though, a dog is only property, and the negligent destruction of property cannot support a negligent infliction of emotional distress claim.

Thus, this case creates the strange scenario of a lawsuit going forward based on an action far less egregious than actually occurred, because a lawsuit based on the really egregious behavior is barred by public policy.

It is important to note that the court did not hold that public policy does not bar the claim. Because the trial court dismissed the claim, without considering public policy, the court of appeals remanded the case to the trial court for such consideration. Thus, the trial court could still conclude that the claim is barred.

Suppose, however, the trial court concludes that public policy does not bar the suit. This would create very thorny evidentiary issues regarding the evidence concerning the dog.

As noted, we are assuming that the child suffered emotional distress, and that it was severe, but that the distress is caused primarily by the killing of the boy’s dog.

Clearly, because damage to property cannot support the plaintiffs’ claim, allowing evidence concerning the dog would be either irrelevant, or even if relevant, unduly prejudicial to the defendants. However, the evidence (psychiatric or otherwise) is probably incomplete without reference to the dog.

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In the wake of this decision, lower courts will face a difficult task in how to treat evidence of damage to property, when a plaintiff’s emotional distress is the result of both injury to person and damage to property.

It may be that the best resolution to this problem would be a modification to the rule as follows — although damages may not be awarded for emotional distress based on property damage alone, suit can be maintained for all emotional distress if it is the result of a course of action causing damage to both property and person.

This would be a principled basis of preserving the core holding in Rabideau, while allowing recovery for actions that should be viable.

Admittedly, if the Supreme Court were to adopt such a rule, there is the possibility of bootstrapping — the injury to person element is pleaded only to avoid the general rule against claims based solely on damage to property.

But at least such an approach would have the merit of addressing the difficult questions squarely, rather than engaging in what seems a judicial fiction — pretending this child’s trauma is not the result of his dog being killed, but results from being chased around the yard with dog feces.

– David Ziemer

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David Ziemer can be reached by email.

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