Julie L. Rabideau v. City of Racine
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2001 WI 57 SUPREME COURT OF WISCONSIN Case No.: 99-3263 Complete Title of Case: Julie L. Rabideau, Plaintiff-Appellant-Petitioner, v. City of Racine, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 238 Wis. 2d 96, 617 N.W.2d 678 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: June 12, 2001 February 28, 2001 Circuit Racine Allan B. Torhorst ABRAHAMSON, C.J., concurs (opinion filed). For the plaintiff-appellant-petitioner there were briefs by Alan D. Eisenberg and Law Offices of Alan D. Eisenberg, Milwaukee, and oral argument by Alan D. Eisenberg. For the defendant-respondent there was a brief and oral argument by W. Scott Lewis, assistant city attorney. 2001 WI 57 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-3263 STATE OF WISCONSIN : IN SUPREME COURT FILED Julie L. Rabideau, Plaintiff-Appellant-Petitioner, JUN 12, 2001 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI City of Racine, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. Affirmed in part, reversed in part and remanded. ¶1 WILLIAM A. BABLITCH, J. Racine police officer. Dakota was shot by a City of He subsequently died from the injury. Dakota lived with Julie Rabideau (Rabideau), who witnessed the events leading to his death. Rabideau subsequently claim for damages against the City of Racine (the City). filed a Racine County Circuit Court Judge Allan B. Torhorst granted summary judgment to the City, and the court of appeals affirmed.1 1 Rabideau v. City of Racine, No. 99-3263, unpublished slip op. (Wis. Ct. App. June 7, 2000), was decided by one judge pursuant to Wis. Stat. § 752.31(2)(a)(1997-98). No. 99-3263 ¶2 Rabideau The primary question presented in this case is whether is entitled to damages for emotional distress. Although the question of whether or not a bystander may recover damages after witnessing an accident is a legal question that this court has previously addressed, this particular case is distinguishable from others: Dakota was a dog, a companion to Rabideau. ¶3 At the outset, we note that we are uncomfortable with the law's cold characterization of a dog, such as Dakota, as mere "property."2 Labeling a dog "property" fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.3 A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog. ¶4 The association of dog and human is longstanding. Dogs have been a part of human domestic life since 6,300 B.C. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing 2 See Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1071 n.5 (Haw. 1981) ("The law clearly views a dog as personal property. Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786 (1957); Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955)"). 3 This argument concerning the distinction between companion animals and goods owned primarily for their economic value is set forth fully in Steven M. Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal L. 33, 69-70 (1998). 2 No. 99-3263 Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059, 1064 (1995). Archaeologists have uncovered a 12,000-year-old burial site in which a human being and a dog lay buried together. the person was arranged on the dog's "The arm of shoulder, as if to emphasize the bonds that existed between these two individuals during life." omitted). Id. (internal quotation marks and footnote Dogs are so much a part of the human experience that we need not cite to authority when we note that dogs work in law enforcement, assist the blind and disabled, perform traditional jobs such as herding animals and providing security, and, of course, dogs continue to provide humans with devoted friendship. ¶5 Nevertheless, the law categorizes the dog as personal property despite the long relationship between dogs and humans. To the extent this opinion uses the term "property" in describing how humans value the dog they live with, it is done only as a means of applying established legal doctrine to the facts of this case. ¶6 the Two theories are proffered by Rabideau as grounds for recovery of emotional and damages: intentional negligent infliction infliction of of emotional distress emotional distress. As to the first, as a predicate matter to bringing a claim for damages based upon the tort of negligent infliction of emotional distress the plaintiff must be related to the victim as spouse, parent-child, grandparent-grandchild, 4 or sibling.4 Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 657, 517 N.W.2d 432 (1994). 3 No. 99-3263 Because the relationship between Rabideau and Dakota did not fall within one of these categories, we find that she cannot maintain a claim on this basis. ¶7 claim We further conclude that Rabideau cannot maintain a for recovery for the emotional negligent damage to her property. distress caused by Our decision is based upon well-established public policy criteria.5 We are particularly concerned that were such a claim to go forward, the law would proceed upon a course that had no just stopping point. Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion. ¶8 Rabideau's second theory infliction of emotional distress. appeals that Rabideau's judgment when examined is the upon intentional We concur with the court of complaint within based cannot framework survive of set summary forth in Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963). ¶9 In additional addition issues. to these First, we claims conclude we address that three Rabideau's complaint, liberally read, encompasses a claim for damages for property loss. 5 Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 144-45, 549 N.W.2d 714 (1996). 4 No. 99-3263 ¶10 Second, we find that genuine issues of material fact exist as to whether Officer Thomas Jacobi was entitled as a matter of law to shoot and kill Dakota. (1997-98).6 See Wis. Stat. § 174.01 Accordingly, we reverse the circuit court's grant of summary judgment on the basis of § 174.01. ¶11 court Third, that we this reverse complaint the was determination frivolous. by We the circuit conclude that Rabideau's complaint for damages for the intentional infliction of emotional distress was one that could properly be brought, although the elements for that claim were not satisfied so as to survive a motion for summary judgment. As to Rabideau's claim for damages based upon the negligent infliction of emotional distress, her brief to the court of appeals and this court set forth a good faith argument for an extension of the law. Under these circumstances a finding of frivolousness was erroneous. Standard of Review ¶12 In this case we are reviewing grant of summary judgment to the City.7 of law that we review de novo. the circuit court's This presents a question Strasser v. Transtech Mobile Fleet Serv., 2000 WI 87, ¶28, 236 Wis. 2d 435, 613 N.W.2d 142. 6 All references to the Wisconsin Statutes are to the 199798 version unless noted otherwise. 7 The City filed a motion to dismiss for failure to state a claim upon which relief could be granted. We agree with the court of appeals that because the circuit court considered matters outside the pleadings, the case should be treated as a review of a grant of summary judgment pursuant to Wis. Stat. § 802.06(3) Rabideau, No. 99-3263, unpublished slip op. at 3 (Wis. Ct. App. June 7, 2000). 5 No. 99-3263 Pursuant to Wis. Stat. § 802.08(2), summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "In analyzing whether there are genuine issues of material fact, we draw party." all reasonable inferences in favor of the nonmoving Strasser, 2000 WI 87 at ¶32. Analysis ¶13 We begin our analysis by briefly reviewing the facts. Rabideau and Officer Jacobi were neighbors. Officer Rabideau Jacobi was had just returning Rabideau's truck. returned home as home. well. On March 31, 1999, Across Dakota the street, jumped out of He crossed the street to the Jacobi house where Jed, the Jacobi's Chesapeake Bay retriever, was in the yard. ¶14 There is significant disagreement between the parties concerning what subsequently occurred. The City argued that Dakota came onto the Jacobi property and attacked Jed. Officer Jacobi, it is contended, shouted at Dakota to no effect. The City argues that Officer Jacobi, fearing for the safety of Jed, and for the safety of his wife and child who were nearby, fired a number of shots with his service revolver. Dakota toward the street and turned his head and was snarling. moved Officer Jacobi, believing the dog was about to charge, fired a third time and struck Dakota. ¶15 On the other hand, Rabideau contends that Dakota was sniffing Jed, not biting or acting aggressively. 6 She asserts No. 99-3263 that she called Dakota and was crossing the street to retrieve him when shots rang out. ¶16 Although both parties agree that three shots were fired, Rabideau maintains that Dakota was stepping off the curb toward her when he was hit by Officer Jacobi's second shot. Rabideau asserts that while Dakota was struggling to crawl away, Officer Jacobi fired again and missed. ¶17 Two informed days that after Dakota the shooting died. Upon occurred, hearing Rabideau this news, was she collapsed and was given medical treatment. ¶18 Rabideau which stated: filed a complaint in small claims court, "City of Racine Police Officer Thomas Jacobi shot and killed my dog, Dakota, and caused me to collapse and require medical attention." I ¶19 The determined circuit that court Rabideau's emotional distress. and the complaint court set of forth appeals a claim both for The circuit court addressed this complaint as one asserting a claim of negligent infliction of emotional distress. The court of appeals addressed both negligent infliction of emotional distress and intentional infliction of emotional distress. In this review, we will address both claims. A ¶20 Rabideau argues that the tort of negligent infliction of emotional distress to a bystander should encompass the facts of this case. Our tort law recognizes a claim for damages where 7 No. 99-3263 a bystander suffers great emotional distress after witnessing an accident or its gruesome aftermath involving death or serious injury to a close relative. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). the claim are: "'(1) that the The elements of defendant's conduct [in the underlying accident] fell below the applicable standard of care, (2) that the plaintiff suffered an injury [severe emotional distress], and (3) that the defendant's conduct was a cause-infact of the plaintiff's injury.'" Wis JI Civil 1510 Comment (quoting Bowen, 183 Wis. 2d at 632.) Rabideau's complaint sets forth these elements. ¶21 Nevertheless, elements of liability a even if negligence precluded is claim, by a plaintiff a court public sets may policy forth determine the that considerations. Gritzner v. Michael R., 2000 WI 68, ¶26, 235 Wis. 2d 781, 611 N.W.2d 906. Before a court makes such a determination, it is typically the better practice to submit the case to the jury. Id. If, however, the facts of the case are not complex and the attendant public policy issues are presented in full, then this court may determine before trial if liability is precluded by public policy. Id. Accordingly, we turn next to a consideration of the public policy concerns presented by this issue. ¶22 The Bowen analysis noted that two concerns have historically shaped the development of the tort of negligent infliction of emotional distress. These concerns are (1) establishing that the claim is genuine, and (2) ensuring that 8 No. 99-3263 allowing recovery tortfeasor. ¶23 will not place an unfair burden on the Bowen, 183 Wis. 2d at 655. Where, as in the present case, the issue presented is negligent infliction of emotional distress on a bystander, Bowen identified three public policy factors to be applied in an effort to establish that the claim is genuine, the tortfeasor is not unfairly burdened, and that other attendant public policy considerations are not contravened. victim must have been killed or Id. at 655-58. suffered a First, the serious injury. Second, the plaintiff and victim must be related as spouses, parent-child, grandparent-grandchild or siblings. Third, "the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene." ¶24 Id. at 633. We need not address each of these factors because it is plain that the victim in this case is not related to Rabideau as a spouse, parent, child, sibling, grandparent or grandchild. Accordingly, she cannot maintain a claim for negligent infliction of emotional distress. ¶25 Rabideau urges that we extend this category to include companion animals. In her words, "[a]nyone who has owned and loved agree a pet would that in terms of emotional trauma, watching the death of a pet is akin to losing a close relative." Further, she contends that we need not engage in an analysis of whether companion examine the animals rationale family members. are "family," supporting the but should limitation to instead certain Rabideau argues that the limitation of claims 9 No. 99-3263 to family members is a means of assuring forseeability as well as a reasonable tortfeasor. limitation of the liability of a negligent According to Rabideau, the bond between companion animals and humans is one that is sufficiently substantial to ensure that these concerns are met. ¶26 We agree, as we must, that humans form important emotional connections that fall outside the class of spouse, parent, child, recognized grandparent, this in Bowen,8 grandchild and repeat or sibling. here, that We emotional distress may arise as a result of witnessing the death or injury of a victim who falls outside the categories established in tort law. However, the relationships between a victim and a spouse, parent, child, embedded in grandparent, the emotional loss negligent death grandchild organization experienced or injury of by a of our or law sibling and bystander one of who these are deeply society. The witnessed the categories of individuals is more readily addressed because it is less likely to be fraudulent and is a loss that can be fairly charged to the tortfeasor. The emotional harm occurring from witnessing the death or injury of an individual who falls into one of these relationships recognition. ¶27 is serious, compelling, and warrants special Id. at 657. We concluded in Bowen that for the present time these tort claims would be limited; we reach the same conclusion in this case. 8 We note that this rule of nonrecovery applies with Bowen, 183 Wis. 2d at 657. 10 No. 99-3263 equal force to a plaintiff who witnesses as a bystander the negligent injury of a best friend who is human as it does to a plaintiff whose best friend is a dog. ¶28 of her Had Rabideau been a bystander to the negligent killing best friend, However, complete. human as our we negligence have categorizes dogs as property. analysis previously noted would be the law We turn, therefore, to consider whether Rabideau can maintain a claim for negligent infliction of emotional distress arising from property loss. ¶29 In Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 145, 549 N.W.2d 714 (1996), we concluded that under Wisconsin's formulation of tort law, "it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent damage to his or her property." This conclusion was founded upon public policy.9 ¶30 The public policy analysis in Kleinke drew upon the reasoning policy of Bowen. factors In addressed Bowen this by courts court when listed six considering authenticity and fairness of an emotional distress claim. 9 public the These At least one other court has adopted a different approach. Hawaii permits recovery for mental distress occurring as a result of the negligent destruction of property. Campbell, 632 P.2d at 1071 (citing Rodrigues v. State, 472 P.2d 509 (Haw. 1970)). Based upon this principle of Hawaiian tort law, in Campbell the Hawaii Supreme Court allowed recovery for serious mental distress resulting when the plaintiffs' dog died of heat prostration after being loaded into an unventillated van on a hot afternoon, and the van was exposed directly to the sun. 11 No. 99-3263 various public policy considerations set forth in Bowen, and cited in Kleinke, are: (1) Whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or (6) whether allowance of recovery would enter a field that has no sensible or just stopping point. Kleinke, 202 Wis. 2d at 144-45 (quoting Bowen, 183 Wis. 2d at 655). ¶31 In this case we need only examine one of the Bowen - Kleinke factors to conclude that there is no basis for recovery here. enter This factor concerns whether allowance of recovery would a field that has no sensible or just stopping point. Rabideau suggests that limiting liability to the human companion of a companion animal who is killed may satisfy this concern. We find this proposed resolution unsatisfactory. First, it is difficult to define with precision the limit of the class of individuals who fit into the human companion category. particular human companion every family member? record or primary caretaker? a roommate? Is the the owner of Second, it would be difficult to cogently identify the class of companion animals because the human capacity to form an emotional bond extends to an enormous array of living creatures. Our vast ability to form these bonds adds to the richness of life. the public policy concerns relating 12 to However, in this case identifying genuine No. 99-3263 claims of emotional distress, as well as charging tortfeasors with financial burdens that are fair, compel the conclusion that the definition suggested by Rabideau will not definitively meet public policy concerns. ¶32 Based upon all the above, we conclude that Rabideau cannot maintain a claim for the emotional distress caused by negligent damage to her property. B ¶33 Next, infliction of established we consider emotional for a Rabideau's distress. plaintiff to claim Four maintain of intentional elements such a must claim. be A plaintiff must demonstrate (1) that the defendant's conduct was intentioned to cause emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's emotional conduct was a cause-in-fact distress; and (4) that the of the plaintiff plaintiff's suffered an extreme disabling emotional response to the defendant's conduct. Alsteen, 21 Wis. 2d at 359-60; Wis JI Civil 2725. We agree with the court of appeals' conclusion that summary judgment is warranted here. ¶34 The first Alsteen element requires the plaintiff to demonstrate that the defendant acted with the intent to cause emotional harm. intentionally "One causes who by severe extreme emotional and outrageous distress to conduct another is subject to liability for such emotional distress and for bodily harm resulting from it." Id. at 358 (emphasis omitted). In this case, there is no material issue of fact in the record that 13 No. 99-3263 suggests that Officer Jacobi acted for the purpose of causing Rabideau emotional harm. ¶35 Rabideau argues that she need only show that Officer Jacobi acted intentionally when he shot Dakota. She contends that by shooting Dakota while she was present, Officer Jacobi would have known that his act would cause her severe emotional distress. Rabideau argues that such knowledge is tantamount to intentionally person is causing severe presumed to emotional intend 'the distress natural because and "a probable consequences of his acts voluntarily and knowingly performed.'" Haessley v. Germantown Mut. Ins. Co., 213 Wis. 2d 108, 118, 569 N.W.2d 804 (Ct. App. 1997) (quoting State v. Gould, 56 Wis. 2d 808, 814, 202 N.W.2d 903 (1973)). ¶36 The presumption cited by Rabideau generally applied in criminal cases. from Haessley is See Hawpetoss v. State, 52 Wis. 2d 71, 80, 187 N.W.2d 823 (1971). Rabideau's application in this case of the general rule that an accused is presumed to intend the natural and probable consequences of his act obfuscates what is required by the first element of this cause of action. The plaintiff must establish that the purpose of the conduct was to cause emotional distress. that Officer Jacobi intended to fire There is no question his weapon at Dakota. However, there is no evidence to indicate he did so to cause emotional distress to Rabideau. Certainly that product, but that is insufficient standing alone. limitation upon the cause of infliction of emotional distress. 14 action for the was a by- This is a intentional Anderson v. Continental Ins. No. 99-3263 Co., 85 Wis. 2d 675, 694-95, 271 N.W.2d 368 (1978). be something more than a showing that There must the defendant intentionally engaged in the conduct that gave rise to emotional distress conduct in the plaintiff; was engaged in distress. While intent the plaintiff for the purpose may must of be evidenced show that causing by the emotional inferences from words, conduct or the circumstances in which events occurred, in the present case there is no asserted fact as to this element. Accordingly, we are not persuaded by Rabideau's argument, and we affirm the court of appeals' grant of summary judgment. II ¶37 Although we affirm the court of appeals' decision as to Rabideau's claims for damages based upon emotional distress, we hold that the court erred in its conclusion that Rabideau's claim did not seek damages for lost property. damages action for property loss is the most as the conventional result claim of A claim for Officer Rabideau Jacobi's could have brought, and is without doubt the most widely recognized claim See 1 Dan B. Dobbs, Law that arises when an animal is killed. of Remedies Miller, § 5.15(3), Annotation, A.L.R.5th 635 at Damages (1998). 898 (2d for We ed. Killing therefore 1993); or Robin Injuring hold that Cheryl Dog, 61 Rabideau's complaint, liberally construed, also encompassed a demand for damages for property loss. proper means to measure We decline to further address the this property loss or whether other elements, such as veterinary expenses incurred in treating a companion animal's injuries, may be recovered. 15 These issues No. 99-3263 were not thoroughly briefed by both parties. See State v. Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999) (issues not raised or considered in the trial court will not be considered for the first time on appeal unless the new issue is a question of law that the parties have thoroughly briefed, and there are no disputed issues of fact regarding the new issue). III ¶38 The next issue we consider concerns the circuit court's grant of summary judgment on the basis of Wis. Stat. § 174.01. As an affirmative defense, the City asserted that Officer Jacobi was privileged to shoot and kill Dakota pursuant to this statute. Section 174.01 provides as follows: (1) Killing a dog. (a) Except as provided in par. (b), a person may intentionally kill a dog only if a person is threatened with serious bodily harm by the dog and: 1. Other restraining actions were tried and failed; or 2. Immediate action is necessary. (b) A person may intentionally kill a dog if a domestic animal that is owned or in the custody of the person is threatened with serious bodily harm by the dog and the dog is on property owned or controlled by the person and: 1. Other restraining actions were tried and failed; or 2. Immediate action is necessary. (2) Inapplicable to officers, veterinarians and persons killing their own dog. This section does not apply to an officer acting in the lawful performance of his or her duties under s. 29.931 (2)(b), 95.21, 174.02(3) or 174.046(9), or to a veterinarian killing a dog in a proper and humane manner or to a person killing his or her own dog in a proper and humane manner. 16 No. 99-3263 (3) Liability and penalties. A person who violates this section: (a) Is liable to the owner of the dog for double damages resulting from the killing; (b) Is subject to the penalties provided under s. 174.15; and (c) May be subject to prosecution, depending on the circumstances of the case, under s. 951.02. ¶39 The court of appeals concluded that the circuit court improperly applied summary judgment procedures when determining whether Officer Jacobi was privileged to shoot Dakota under Wis. Stat. § 174.01. However, the court of appeals further determined that the issue was moot because it determined that even if Officer Jacobi's actions were not privileged, Rabideau could not recover damages pursuant to her complaint. Rabideau, No. 99-3263, unpublished slip op. at 9-10 (Wis. Ct. App. June 7, 2000). ¶40 Based upon our examination of the record we agree that summary judgment on this issue was improper because material facts pertaining to the statute are in dispute. For example, although the City asserts that Dakota and Jed were fighting, Rabideau contends that they were not in a fight. Rabideau asserts that Dakota was not threatening Officer Jacobi, his wife or his child. The City disagrees. Rabideau claims Dakota was on the curb; the City contends the dogs were in Officer Jacobi's yard. ¶41 We also note that the exemption for police officers provided in Wis. Stat. § 174.01(2) requires that the officer is acting pursuant to one of a variety of statutes. 17 However, the No. 99-3263 record does not establish that Officer Jacobi was acting under any of the enumerated statutory provisions. ¶42 We disagree with the court of appeals' conclusion that the granting of summary judgment on the basis of this statute was moot. Wisconsin Stat. § 174.01(3) provides that an individual who intentionally kills a dog in violation of the statute is liable to the owner for double damages. Therefore, because material facts are in dispute, the circuit court's order of summary judgment pursuant to § 174.01(1) is reversed. IV ¶43 Finally, Rabideau asserts that the circuit court erred by finding her claim frivolous and awarding attorney fees and costs to the City of Racine. ¶44 The circuit court We agree. made a finding grounded upon Wis. Stat. § 814.025(3)(b).10 of frivolousness The circuit court noted that in this case two identical small claims complaints were filed. One complaint was signed by Julie Rabideau and date stamped July 28, 1999, at 3:30 p.m. A second complaint was signed by her attorney and date stamped July 28, 1999, at 3:33 p.m. The circuit court held that the attorneys for Rabideau were to be responsible for all costs and fees incurred by the City. Under § 814.025(3)(b), costs for frivolous claims may be awarded upon a finding that the party or attorney "knew, or 10 The circuit court based its finding of frivolousness solely upon Wis. Stat. § 814.025. We need not address the City's contention that standards utilized for finding frivolousness under Wis. Stat. § 802.05 apply to § 814.025. 18 No. 99-3263 should have known" that the claim was "without any reasonable basis in law or equity." ¶45 Courts tread carefully frivolous action, for the competency of bar must the when considering "ingenuity, be a claim foresightedness encouraged and not of and stifled." Radlein v. Industrial Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). The statute reflects this policy by requiring the court to consider whether the party or attorney knew the action was without any reasonable basis in law, and could not be supported by a good faith argument extension, modification or reversal of existing law. for 11 an As to this second step, the circuit court is to consider each of the alternative possibilities of a good faith argument, that is, was 11 Wisconsin Stat. § 814.025 provides in relevant part: (1) If an action . . . is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees. . . . (3) In order to find an action . . . frivolous under sub.(1), the court must find one or more of the following: . . . (b) The party or the party's attorney knew, or should have known, that the action, special proceeding counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. 19 No. 99-3263 the existing reversal. law If ready the for law an is extension, not ready modification for an or extension, modification or reversal, the court is to consider whether the argument for the change was made in good faith. ¶46 An analysis § 814.025(3)(b) of presents frivolousness a mixed Id. at 612. under question of Wis. fact Stat. and law. State v. State Farm Fire & Cas. Co., 100 Wis. 2d 582, 601-02, 302 N.W.2d 827 (1981). A determination of what the party knew or should have known is a question of fact. Id. A conclusion as have been to whether what was known, or should known, warrants a finding of frivolousness is a question of law which we review de novo. Stern v. Thompson & Wis. 2d 220, 241, 517 N.W.2d 658 (1994). Coates, Ltd., 185 In this case, the fundamental facts were sufficiently established to render our analysis here to be solely a question of law. based upon an objective standard: This analysis is "'whether the attorney knew or should have known that the position taken was frivolous as determined by what a reasonable attorney would have known or should have known under the same or similar circumstances.'" Id. (quoting Sommer v. Carr, 99 Wis. 2d 789, 799, 299 N.W.2d 856 (1981)). All doubts on this issue are resolved in favor of the party or attorney. Zinda v. Krause, 191 Wis. 2d 154, 176, 528 N.W.2d 55 (Ct. App. 1995); In re Paternity of James A.O., 182 Wis. 2d 166, 184, 513 N.W.2d 410 (Ct. App. 1994). ¶47 In this review, we have concluded that Rabideau's complaint, liberally construed, encompassed a claim for property loss. Additionally, we have concluded that Rabideau's complaint 20 No. 99-3263 for damages for the intentional infliction of emotional distress was properly brought, although the elements for that claim were not satisfied. Finally, as to Rabideau's claim for damages based upon the negligent infliction of emotional distress, her brief to the court of appeals, as well as her arguments before this court, adequately defended her position. We conclude that she has set forth a substantial argument in good faith for an extension, result, modification we reverse or the reversal of circuit existing law. court's As finding a of frivolousness.12 By the Court. The decision of the court of appeals is affirmed in part, reversed in part, and the cause remanded to the circuit court. 12 At oral argument counsel for Rabideau raised for the first time the issue of recovering damages for loss of companionship. Because this issue was neither raised in the petition for review nor argued in the briefs, we do not address it. 21 No. 99-3263.ssa ¶48 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). I agree with the majority opinion's conclusions about intentional infliction emotional of emotional distress, frivolousness. distress, property negligent damage, and infliction the issue of of The only cause of action in this case is for property loss. ¶49 I wish to emphasize that this case is about the rights of a pet owner to recover in tort for the death of her dog. Scholars would not classify this case as one about animal rights. ¶50 Professor Martha Nussbaum has pointed out that one's love of a pet should not be mistaken for concern about the ethical rights of animals.13 Professor Nussbaum explains this error as follows: Commonly, we conflate two sorts of people: animal lovers and people who are sensitive to the ethical rights of animals. This conflation is a great error. In human life, we can easily take its measure: men may be genuine lovers of women while treating them extremely badly. . . . Even people who treat well the particular women they love may not care at all about women's rights generally.14 ¶51 Professor Nussbaum further explains the difference between animal lovers and proponents of animal rights by noting that while many of us have affectionate 13 relationships with See Martha C. Nussbaum, Book Review: Animal Rights: The Need for a Theoretical Basis, reviewing Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals, 114 Harv. L. Rev. 1506 (2001). 14 Id. at 1544. 1 No. 99-3263.ssa animals such as dogs and cats and horses, we also eat meat and eggs and wear leather, and we do not concern ourselves with the conditions under which these goods are produced.15 ¶52 For purposes of recovery for negligent infliction of emotional distress, this court treats the death of a dog the same as it treats injury to or death of a best friend, a roommate, or a nonmarital partner: It allows no recovery. ¶53 for loss Having concluded that the plaintiff's only remedy is of property, the majority opinion declines to give guidance to the circuit court and litigants about damages for the death of the dog. This issue was not briefed. At least one state has enacted a law that allows up to $4,000 recovery for non-economic damages such as loss of the reasonably expected companionship, love, and affection of a pet resulting from the intentional or negligent killing of the pet.16 allows the legislature to make a considered 15 Id. at 1509-10. 16 See Tenn. Code Ann. § 44-17-403 (2001). 2 Such a statute policy judgment No. 99-3263.ssa regarding the societal value of pets as companions and to specify the nature of the damages to be awarded in a lawsuit.17 ¶54 For the reasons set forth, I write separately. 17 See 1 Dan B. Dobbs, Law of Remedies § 5.15(3), at 898-900 (2d ed. 1993) (discussing courts' varied approaches toward damage awards in cases involving injuring or killing of a pet). 3 No. 99-3263.ssa 1
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