Bridgett Fowler v. Fedex

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Bridgett Fowler, Appellant,

v.

Fedex Ground Package System, Inc. and James K. Ard
d/b/a JMK Logistics Corporation, Respondents.

Appellate Case No. 2019-001722

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2023-UP-020
Submitted October 3, 2022 – Filed January 18, 2023

AFFIRMED

Tyler Ryan Turner and Mary Allison Caudell, both of
Turner & Caudell, LLC, of Columbia, for Appellant.

Dominic Allen Starr, of McAngus Goudelock & Courie,
LLC, and Abigail Edwards Saunders, of Maguire Law
Firm, both of Myrtle Beach, for Respondents.

PER CURIAM: Bridgett Fowler appeals the trial court's grant of summary
judgment in favor of Fedex Ground Package System, Inc. and James K. Ard d/b/a
JMK Logistics Corporation regarding damages for pain and suffering in this
negligence case based upon the unfortunate and understandably upsetting death of
her pet dog, Honey Bunny. We affirm.

1. As to the trial court's reliance on late nineteenth-century caselaw and reference
to more recent but unpublished caselaw, we find the circuit court properly
examined the law in arriving at its conclusion. See Cafe Assocs., Ltd. v.
Gerngross, 305 S.C. 6, 9, 406 S.E.2d 162, 164 (1991) ("Summary judgment is
appropriate when it is clear that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law."); State v. Langford,
55 S.C. 322, 326, 33 S.E. 370, 371-72 (1899) (considering whether a dog could be
the subject of larceny when the relevant statute required the stealing of property
and concluding a dog constituted property or a chattel); Coleman v. Levkoff, 128
S.C. 487, 490, 122 S.E. 875, 876 (1924) ("The general rule is that the owner of
personal property, injured by the negligence of another, is entitled to recover the
difference between the market value of the property immediately before the injury
and its market value immediately after the injury."); Duke Power Co. v. Thornton,
303 S.C. 454, 457, 401 S.E.2d 195, 196 (Ct. App. 1991) ("As a general rule, the
measure of damages for injury to personal property is the difference between the
market value of the property immediately before and its value immediately after
the injury."); Hodge v. UniHealth Post-Acute Care of Bamberg, LLC, 422 S.C.
544, 555-56, 813 S.E.2d 292, 298-99 (Ct. App. 2018) (finding the trial court's
examination of an unpublished decision whose reasoning it found persuasive was
harmless when the trial court relied on other published cases and the examination
was not prejudicial).

2. As to Fowler's allegation the circuit court's order should be reversed based on
national trends and public policy, we find the circuit court's decision is in line with
national trends considering damages awarded in cases involving the death of a pet
and that public policy considerations do not warrant intervention by this court in
the absence of legislative action. See Debra D. Burke, A Clarion Call for
Emotional Damages in Loss of Companion Pet Cases, 15 Tenn. J.L. & Pol'y 250,
252-53 (2021) ("Traditionally, the common law views pets as property. As a
result, damages for the loss of a pet are limited to compensatory damages
representing the market value of the property, although some courts have debated
other measurements. Typically, emotional distress damages for the loss of the pet
are not recoverable. However, if an egregious and intentional act results in the
loss, some courts are willing to allow recovery for the independent tort of the
intentional infliction of emotional distress for the outrageous conduct." (footnotes
omitted)); Koester v. VCA Animal Hosp., 624 N.W.2d 209, 211 (Mich. Ct. App.
2000) ("There are several factors that must be considered before expanding or
creating tort liability [for the death of a pet], including, but not limited to,
legislative and judicial policies. In this case, there is no statutory, judicial, or other
persuasive authority that compels or permits this [c]ourt to take the drastic action
proposed by plaintiff. . . . However, plaintiff and others are free to urge the
[l]egislature to visit this issue in light of public policy considerations, including
societal sentiment and treatment of pets, and the prospect of public perception that
[the] law does not provide a just and fair remedy . . . ."); Fullbright v. Spinnaker
Resorts, Inc., 420 S.C. 265, 271, 802 S.E.2d 794, 797 (2017) ("Determinations of
public policy . . . are chiefly within the province of the legislature, whose authority
on these matters we must respect."); Taghivand v. Rite Aid Corp., 411 S.C. 240,
244, 768 S.E.2d 385, 387 (2015) (recognizing that "[t]he 'primary source of the
declaration of the public policy of the state is the General Assembly; the courts
assume this prerogative only in the absence of legislative declaration'" (alteration
in original) (quoting Citizens' Bank v. Heyward, 135 S.C. 190, 204, 133 S.E. 709,
713 (1925))).

AFFIRMED. 1

KONDUROS, HEWITT and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.