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MADISON — An Onalaska couple is only entitled to the market value of their dog, seriously injured in a fight with another dog, and not special damages for emotional value awarded in lawsuits involving heirlooms and keepsakes, an appeals court ruled Thursday.

In upholding La Crosse County Circuit Judge Elliott Levine, the District IV Court of Appeals rejected Thomas and Cary Smith’s $12,232 damages claim for their 11-year-old West Highland terrier “Ella.” Instead, the Smith’s neighbors, Julie and Aaron Foglia, are liable only for the Ella’s replacement value before she was mauled by the Foglias’ German Shepherd “Maddi.”

The Smiths agreed that the law treating pets as personal property applied to the case but argued they should not be limited to just the normal damages, which is the lesser of the “cost of repairs” or the dog’s market value before the attack.

Levine disagreed and awarded the Smiths Ella’s $2,695 market value and, because Maddi had been involved in a prior attack, doubled the award to $5,390.

The Foglias were dismissed from the suit by stipulation, but their insurers, American Family and Wisconsin Mutual, continued to represent them on appeal.

On appeal, Smith’s attorney, Thomas Horvath, not only sought to recover Ella’s medical costs, but special damages for the sentimental and emotional value awarded in a prior court decision involving family heirlooms and keepsakes. Horvath asked the court to extend that ruling to family pets.

Horvath also argued that there is no market value for mature pets since typically they are not sold but given away if the owner can no longer care for them.

The Foglias’ insurers argued that state law treats damage to a dog no differently from damage to any other property. Since Ella’s medical bills exceeded $9,000, the Foglias were only liable for Ella’s pre-injury market value.

The District IV Court refused to apply the “keepsakes” special damages ruling to pets, finding the situation too unlike the damages that can occur to family photos or other treasured property.

“It seems to us that there are obvious and significant differences between an unrepairable and lost-forever keepsake and an injured but ‘repairable’ pet. For that matter, here, the Smiths are not seeking to measure their damages by looking to the factors listed in (prior case law). They are primarily seeking ‘repair costs,’” the unsigned appeals opinion said.

Whether the law of financial liability for damage to pets should be expanded is a matter for the state’s highest court, according to the opinion.

A call to Horvath for comment on the case was not returned by deadline.

According to a brief filed by Horvath:

The dog fight happen on May 26, 2013, when the Smiths’ two young children were walking Ella on a leash in front of their house. Maddi approached, and circled Ella and the children. Fearing what could happen, Cary Smith ran outside yelling, “No! No! No!” She saw Maddi attack Ella from behind, viciously whipping her back and forth like a chew toy and shaking Ella out of her collar and leash.

The Smith children were screaming and crying, and Ella was covered in blood.

Smith arrived, kicked Maddi until Ella was free of Maddi’s grip and took Ella to Central Animal Hospital.

CAH could not provide the level of care required and Smith took Ella to UW Veterinary Clinic where she underwent two surgeries for spinal trauma and puncture wounds. Ella was released about 10 days later with partial paralysis of the rear legs.

The Smiths incurred more than $9,000 in medical costs to treat Ella. They tabulated the inconvenience damages at about $2,550, which included which included $500 for missing a stepson’s graduation and $2,050 for mileage for several trips to Madison and lost wages.

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(15) comments

lpkrauss

This is totally ridiculous. The horror of watching your beloved pet basically being eaten by another animal...then to have the judge rule like this? Shame.

Tim Russell

The guy shooting cats story had twice as many comments. The Trib should stay with cat stories for click bait.

wingdam

This law needs to be changed. As an example Vets like to charge fees and have an income like a doctor, but when they mess up have no liability.

easy

I love dogs, and think dog people are special people, but any dog that kills another dog ONE time should be put to sleep, too dangerous to be walking around, and no justification for continued life.

KW

Kills another dog? Never killed any dog...get your facts straight before writing a comment.

KW

Typical LaCrosse Tribune article. One-sided. No mention of the numerous other facts involved. The judge ruled based on the facts and obviously there were many other factors in this case that made the judge rule the way he did. There is so much missing information that it's completely impossible for anyone to understand what really happened. To take statements from one attorney but not the other is just plain bad reporting. This article is 100% incorrect. Sad. And also sad that this makes local news when there are so many more serious issues going on in our community. This city is really deteriorating quickly.

HS

Completely disagree with the ruling. This was a traumatic experience for Ella, the kids and the entire family. The German Shepard attacked their dog that was on a leash so viciously and the owners didn't want to take responsibility, even after their dog has attacked before. Why should the owners have to foot that type of expense when they did nothing wrong.

Jobaba

Look at the cost of the dog. People aren't taxed enough in this country.

KW

Agree!!!!

lookout

Anyone that knows their dog could possibly be a danger to people or other pets needs to put a muzzle on their dog. And please people everyone knows if their dog could be a danger to others or their pets when out walking. These people are lucky it didn't hurt one of those kids very lucky

AngryLog

From the story sounds like the kids got off vary lucky. That dog could have easily bit one of them if not worst.they should slam the German Shepard's dog owners

Deadwood subscriber

Second time the German Shepherd has attacked another dog? The owners should be prohibited from owning animals.

taxpayr

This is the worst judge in the history of Lacrosse. He is of absolutely no value to the people of Lacrosse that he serves.

Machiavelli

[whistling][whistling][whistling]Aren't you being a bit harsh? Ramona is slightly worse. [alien][alien][alien]

"5 Judges Who Will Erode Your Faith in the System"

http://www.rd.com/culture/bad-judges/

chucker

Disagree with judge , people need to have control over there dogs at all times , a big German Shepard should have been on a lease or fenced in , so people can walk there dogs on public sidewalks or streets !! They should have to pay for everything & plus there dog should be put down !!

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