Walter LOCKETT and Kristin Santose, Appellants, v. Gary HILL, Respondent

Defendant's dogs killed plaintiffs' cat. The trial court found that defendant was negligent and awarded plaintiffs $1,000 in compensatory damages but denied plaintiffs' claims for negligent infliction of emotional distress and loss of companionship. Plaintiffs appeal, arguing that they should be compensated for emotional distress resulting from witnessing the death of their pet. We affirm.

Although defendant's answer denied all of the allegations in plaintiffs' complaint, defendant did not appear at trial to offer any evidence contradicting plaintiffs' testimony or affidavits. Nor did defendant appear on appeal. The trial court found that plaintiffs had made out a prima facie case for negligence; we can therefore infer that the court found the following facts, which are necessary to support that conclusion.

Defendant's two pit bulls, running loose without permission on plaintiffs' property, spotted their pet cat, chased her into a neighbor's yard, and mauled her to death. Plaintiff Santose saw the beginning of the chase and called to her husband, plaintiff Lockett, who ran from their house and attempted to stop the attack. After the dogs dropped the mauled cat on the ground and ran away, Santose picked her up and saw she was gravely injured but still alive. Plaintiffs immediately rushed her to the veterinarian, but she died en route.

In this action, plaintiffs allege that defendant was negligent in keeping and harboring deadly animals in a residential setting and in failing properly to control, train, and restrain them, “conduct which constitutes a clear private nuisance,” as a result of which plaintiffs “suffered significant mental anguish” and “were deprived of [the cat's] future companionship.” They sought $10,000 in damages for emotional distress and $8,760 in damages for loss of companionship. The trial court found that the cat's death was the foreseeable result of defendant's negligence. However, the court held that, as a matter of law, plaintiffs could not recover emotional distress damages and that no precedent in Oregon law allowed damages for the loss of a pet's companionship.

*380 Plaintiffs assign error to the denial of damages for emotional distress and loss of companionship. Their arguments on appeal, however, focus exclusively on the legal standards governing awards of damages for emotional distress. As plaintiffs present no legal argument for reversing the denial of damages for loss of companionship, we affirm that portion of the trial court's judgment without further discussion and address only the “negligent infliction of emotional distress” issue.

Generally, a person cannot recover for negligent infliction of emotional distress if the person is not also physically injured, threatened with physical injury, or physically impacted by the tortious conduct. Hammond v. Central Lane Communications Center, 312 Or. 17, 22-23, 816 P.2d 593 (1991). The rule, however, is not absolute. Under one exception, such recovery may occur if “the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress * * *.” Id.; accord Nearing v. Weaver, 295 Or. 702, 706-08, 670 P.2d 137 (1983). “[T]he term ‘legally protected interest’ refers to an independent basis of liability separate from the general duty **7 to avoid foreseeable risk of harm,” Phillips v. Lincoln County School District, 161 Or.App. 429, 432-33, 984 P.2d 947 (1999), and “the identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury.” Curtis v. MRI Imaging Services II, 148 Or.App. 607, 618, 941 P.2d 602 (1997), aff'd on other grounds 327 Or. 9, 956 P.2d 960 (1998) (citations and footnotes omitted). Further, emotional distress damages cannot arise from infringement of every kind of legally protected interest, but from only those that are “of sufficient importance as a matter of public policy to merit protection from emotional impact.” Hilt v. Bernstein, 75 Or.App. 502, 515, 707 P.2d 88 (1985), rev. den. 300 Or. 545 (1986); accord Meyer v. 4-D Insulation Co., Inc., 60 Or.App. 70, 74-75, 652 P.2d 852 (1982).

Thus, because defendant's pit bulls did not physically injure or even tortiously touch plaintiffs, they must prove that: (1) defendant not only negligently allowed his dogs to run free, thereby foreseeably injuring plaintiffs' cat; (2) in so doing, defendant breached a legal duty to them over *381 and above the general duty to avoid foreseeable harm; and (3) the breach of duty resulted in the invasion of an interest that is sufficiently important to merit, if it is harmed, an award of damages for emotional distress.

Plaintiffs suggest two such legal duties: the duty to avoid inflicting private nuisance and the duty to avoid injuring “constitutive property” such as pets. They do not seriously pursue the argument based on private nuisance, nor would serious pursuit have succeeded. Private nuisance is defined as an “invasion of the individual's interest in the use and enjoyment of land.” Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 418-19, 495 P.2d 1193 (1972). Although defendant's dogs did invade plaintiffs' land, and that particular invasion doubtless affected their enjoyment of it, the interest that lies at the heart of their complaint is not related to their real property but to their cat. Indeed, the action giving rise to emotional distress-the actual attack on the cat and its subsequent death-did not take place on their land but on their neighbor's.

Rather, plaintiffs rely on a theory of constitutive property. That theory is based on the proposition that ownership or possession of certain personal property, like a pet, can become a central aspect of the owner's sense of identity. In support of this proposition, plaintiffs cite Steven M. Wise, Wrongful Death of a Companion Animal, 4 Animal L. 33 (1998). Wise refers to pets, for which he uses the term “companion animals,” as “quasi-children” who “may also be metaphorical extensions of their owners” to the extent that “the wrongful killing of one's companion animal may threaten the way in which an owner constitutes herself: in losing her companion animal, she loses a vital part of herself.” Id. at 67-68. According to plaintiffs, Oregon courts have already identified a person's interest in constitutive property as a legally protected interest. They rely on Mooney v. Johnson Cattle, 291 Or. 709, 717, 634 P.2d 1333 (1981), in which the Supreme Court commented in dictum that “such noneconomic values as personal association, love of a place, and pride in one's *382 work * * * add up to one's sense of identity.” The companionship of a pet, plaintiffs argue, is similar in kind to the “values” named in Mooney.

Plaintiffs then argue that we have the authority to declare that wrongful destruction of such constitutive property is a breach of duty or invasion of an interest on which emotional damages can be based. In support of that argument, plaintiffs cite Meyer, 60 Or.App. at 79, 652 P.2d 852, where we noted that “[e]xtension of the right to recover damages for mental distress in a given case is basically a policy decision.” Plaintiffs, in other words, ask us to acknowledge that people have a legally protectible interest in the integrity of constitutive property and that a companion animal is such property and then to declare that that interest is one the interference with which should support an award of damages for emotional distress.

The fatal flaw in plaintiffs' logic occurs at the first step. Our authority to make policy choices in this context is limited to deciding which independent legally protectible interests are sufficiently important to **8 serve as the foundation for emotional distress damages; it does not extend to creating independent legally protectible interests. See Curtis, 148 Or.App. at 620-21, 941 P.2d 602 (emphasizing two-step process; noting that policy choice applies to second step, i.e., deciding whether the preexisting, legally protectible interest is of sufficient importance to merit protection from emotional impact). No Oregon court has recognized that a person's interest in a sense of identity is legally protectible. The court's passing comment in Mooney served only to illustrate the obvious point that tort law sometimes protects interests beyond commercial or economic well-being. That is a far cry from a sweeping statement that a person's sense of identity is a legally protected interest and an even farther cry from including a person's attachment to a companion animal as necessarily integral to that identity. Thus, plaintiffs have directed us to no authority for the proposition that defendant's negligent conduct breached a duty over and above the duty to avoid foreseeable risk, that is, that defendant's negligent conduct interfered with an interest that is protected by something beyond negligence *383 law. ^FN1 The trial court did not err in denying plaintiffs' claim for damages based on emotional distress.

Affirmed.