Pacher v. Invisible Fence of Dayton

Citations: 798 N.E.2d 1121; 154 Ohio App. 3d 744; 2003 Ohio 5333Docket: No. 19614.

Court: Ohio Court of Appeals; October 3, 2003; Ohio; State Appellate Court

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Andrew and Alyce Pacher appeal the dismissal of their claims for negligent infliction of emotional distress related to injuries sustained by their golden retriever, Boomer, while using an "invisible fence" installed by Invisible Fence of Dayton (IFD). After a bench trial, the court found IFD liable for negligence and breach of contract, awarding the Pachers $1,714.85. The Pachers argue that the trial court erred by dismissing claims for emotional distress suffered by themselves and Boomer due to IFD's negligence. Conversely, IFD contends that the court wrongly denied its motion for a directed verdict on negligence claims, asserting that the judgment contradicts the law and is unsupported by evidence. The court affirms the trial court's judgment, referencing precedent in Oberschlake v. Veterinary Assoc. Animal Hosp., which established that Ohio law does not allow for non-economic damages for injuries to "companion animals," classifying dogs as personal property. The Pachers acknowledge this precedent but seek a legal change. Boomer was acquired in December 1997, and the Pachers purchased an IFD "Top Dog" package in July 1998, which included installation of the invisible fence system. This system employed buried antenna wire and a collar that delivered shocks to deter the dog from crossing the boundary. After training, both Boomer and the Pachers were deemed to have successfully learned to use the system.

Boomer, the Pachers' dog, was never effectively contained by the invisible fence installed by IFD, leading to numerous service calls over two and a half years. IFD attributed some issues to the Pachers' accidental damage, such as cutting the wire and improper collar adjustments. Novaks, an IFD representative, acknowledged a general failure rate of the product and noted ongoing complaints from the Pachers from July 1998 to January 2001 regarding Boomer's containment. Problems began three months post-installation, with Boomer unable to be contained for more than two months at a time, despite changes in collar design and battery power.

In late 2000, after another containment failure, Novaks suggested an unconventional "sandbag technique" to slow Boomer down, which the Pachers found unreasonable and potentially cruel. Following this, Boomer was managed with a lead instead of a collar. On January 25, 2001, a heated discussion occurred between Mr. Pacher and Novaks about the containment issues, after which Novaks inspected the collars and identified problems with fit and battery installation. He adjusted the collars and observed Boomer remained in the yard when outside.

Despite Novaks' corrections, Mrs. Pacher disagreed with the assessment of their responsibility and refused to sign the service ticket. Later that day, after putting Boomer outside, Mrs. Pacher heard a distressing bark, and Boomer collapsed upon entering the house. Following this incident, Boomer exhibited unusual behavior and was found to have serious injuries, including wounds and infection, after the collar was removed. The veterinarian prescribed antibiotics, and the Pachers subsequently discontinued the use of the invisible fence and collars altogether.

Counts Two and Three of the Complaint assert that IFD's negligence inflicted emotional distress on the Pachers and their minor children due to witnessing Boomer's suffering from burns and sores. Count Four presents Boomer's own claim for pain and emotional shock. The trial court dismissed these claims, determining that the Pachers did not qualify as bystanders and thus failed to establish a claim for negligent infliction of emotional distress, aligning with prior rulings. The court noted Ohio does not recognize claims for emotional distress resulting from property damage and concluded that the emotional reactions described were merely temporary, not meeting the required threshold for serious emotional distress.

Regarding Boomer's claim, the court found that as a dog classified as "personalty," he lacked the legal ability to sue directly, consistent with previous decisions that prevent animals from recovering for injuries. The court highlighted evidentiary complications and public policy concerns about quantifying emotional damages for pets as reasons for rejecting such claims. Despite the Pachers' arguments about the reprehensibility of IFD's actions and the potential deterrent effect of non-economic damages, the court found no evidence of intentional misconduct. The Pachers acknowledged the controlling precedent but argued for a different outcome based on alleged misconduct. IFD, in its cross-assignment of error, argued the trial court erred by not granting a directed verdict, claiming the Pachers failed to provide sufficient evidence for negligence and improperly applied res ipsa loquitur.

Motions for directed verdicts are inappropriate in bench trials and, when made in non-jury trials, are treated as motions for involuntary dismissal under Civ.R. 41(B)(2). This distinction is crucial as it influences the trial court's role; the court weighs evidence and resolves conflicts in cases of dismissal motions, whereas directed verdict motions only question legal sufficiency without weighing witness credibility. Consequently, dismissal under Civ.R. 41(B)(2) can only be set aside if legally erroneous or against the manifest weight of the evidence. In this case, IFD should have moved to dismiss under Civ.R. 41(B)(2), and the trial court's choice to hear additional evidence rather than dismissing the case was permissible under the rule, leading to no error in the decision.

IFD's challenge centers on the legal sufficiency of the evidence supporting a judgment against it for $187.05, based on negligence. To establish negligence, one must prove duty, breach, and proximate injury. IFD claims the court erred in determining it owed a duty to the Pachers, but the court found a duty existed due to the service relationship during Novaks' visits to the Pacher home. IFD submitted only two service request forms from the relevant period, failing to provide comprehensive documentation of all visits. The form from the date of the alleged injury indicates IFD provided a service related to Boomer's escape, for which the Pachers were charged.

A service request form was completed for a visit on January 25, 2001, during which IFD did not charge the Pachers, but this was not voluntary or gratuitous. Novaks testified that he responded to a service request, and there was a prior heated discussion with Mr. Pacher, while Mrs. Pacher refused to sign the form. This context suggests customer dissatisfaction influenced the lack of charge. IFD had a duty to conduct its business without harming customers or their property. Questions of duty breach and causation are typically factual matters for the jury or court. The trial court applied res ipsa loquitur to conclude IFD caused injury to Boomer, which IFD disputed, arguing the conditions for applying this doctrine were unmet, specifically citing the time lapse between the alleged injury and its discovery and the lack of exclusive control over the cause of the injury. Res ipsa loquitur allows for negligence inferences based on circumstantial evidence if two conditions are met: the defendant had exclusive control over the instrumentality at the time of injury, and the injury would not have occurred without negligence. Applying this to the case, the trial court found that the injuries to Boomer likely resulted from IFD's lack of ordinary care, as the injury occurred shortly after Novaks adjusted two collars on Boomer. Testimony indicated Mrs. Pacher did not adjust the collars afterward. The time lapse before the injury's discovery was not a concern, as there was no evidence of alterations to the collar, and prior use did not cause injury. The evidence, including photographs of burns consistent with collar prongs, supported the claim. A plaintiff does not need to eliminate all possible non-negligent causes; it suffices to show that negligence is more probable than not. The court affirmed the application of res ipsa loquitur, sustaining the judgment against IFD for negligence.

A judgment of $1,527.80 was awarded against IFD for breach of contract and related claims. IFD argues this award was unsupported by evidence and contrary to law, asserting that the contract included only a sixty-day "money-back guarantee" and a "one-year money-back" performance guarantee, which the Pachers did not utilize within the specified timeframes. IFD contends the trial court misinterpreted these warranties as they confused limited warranties with express and implied warranties. 

The contract stipulated that if the customer was dissatisfied within sixty days and requested a refund in writing, the full purchase price would be refunded upon returning the system. The one-year guarantee required IFD to refund the equipment price if the customer's animal was not satisfactorily contained, defined as the animal escaping despite compliance with the agreement. The trial court found that containment complaints arose before the one-year period ended and that both parties acted in good faith but could not resolve the issues. 

The court determined that the one-year limit was not intended to be enforced against the Pachers due to their ongoing issues. The trial court concluded that the Pachers reasonably relied on IFD's assurances to address the containment problems, which established a promissory estoppel claim. IFD had a contractual duty to refund the purchase price and remove the equipment if containment was not achieved within a year, which it failed to do. IFD's assertion that the dog was satisfactorily contained was disputed, and the trial court favored the Pachers' credibility.

IFD contends that the Pachers' case is solely about the collar's electrical signal harming their dog, Boomer, which is a misinterpretation. Count Five of the complaint includes claims for breach of contract and express and implied warranties, asserting that the invisible fence did not contain Boomer as promised. The Pachers seek a refund for their investment in the invisible fence. The trial included both negligence and contractual claims, resulting in separate awards for each, with the breach of contract award matching the purchase price of the fence. IFD's assertion that the case only concerns the collar's alleged injuries is unfounded. There were factual disputes, but the trial court favored the Pachers' testimony, which is given significant weight in such determinations. The evidence does not overwhelmingly contradict the trial court’s judgment, supporting its decision. Additionally, IFD challenges the credibility of an electronics teacher's testimony regarding the collar's voltage, claiming it did not establish negligence, breach of contract, or proximate cause. However, the trial court's decision did not hinge on this testimony, nor did it rely on expert opinions, aside from mentioning veterinary expenses without a direct link to the invisible fence’s impact. After reviewing the record and applicable law, the court finds no error in the negligence and breach of contract awards against IFD. Therefore, both the Appellants' and Appellee's assignments of error are overruled, and the trial court's judgment is affirmed.