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Andrew Bergh
Andrew Bergh

July 19, 2001

Grieving dog owner loses damage suit

By ANDREW BERGH
Special to the Journal

What do dogs and living room sofas have in common?

Absolutely nothing.

But don’t thank me for this revelation. Instead, credit should go to the Wisconsin Supreme Court, which made this enlightened observation in Rabideau v. City of Racine. The issue in that canine-related case? Whether a woman who saw her dog fatally shot by a neighbor could recover damages for her emotional distress.

The fateful day was March 31, 1999.

Tom Jacobi, a police officer employed by the city of Racine, had just returned home from work. Coincidentally, one of his neighbors, Julie Rabideau, pulled into her driveway at the same time. And as soon as Rabideau stopped her truck, Dakota, her pet dog, jumped out and crossed the street to the Jacobi house where Jed, a Chesapeake Bay retriever, was lounging in the front yard. (Sorry, but the court didn’t mention Dakota’s breed.)

So what happened next? It depends on whom you believe.

According to Jacobi, Dakota came onto his property and attacked Jed while his wife and child were nearby. After shouting at the dog to no effect, and fearing for the safety of both Jed and his family, the officer fired two shots with his service revolver.

When both bullets missed the mark, Dakota allegedly moved toward the street, turned his head, and began to snarl. Jacobi, who thought Dakota was about to charge, fired a third and final time, this time gravely wounding the canine.

But under Rabideau’s version, it was basically cold-blooded murder.

Dakota, said its owner, was merely sniffing Jed, not biting or acting aggressively.

Rabideau also claimed that she had called Dakota and was crossing the street to retrieve him when shots suddenly rang out, and that Dakota had just stepped off the curb toward her when the second bullet struck him. The third shot was fired, said the owner, as Dakota was struggling to crawl away.

Although Dakota valiantly fought for his life, he succumbed to his injury two days later. Rabideau, who wasn’t at Dakota’s bedside at the time of his passing, collapsed upon hearing the news and required medical treatment.

After a grieving period, Rabideau sued both Jacobi and the city of Racine for damages. (The pet owner apparently claimed Jacobi was “on the job” at the time of the shooting, and that his employer was therefore liable too.) The defendants denied any fault, arguing that Jacobi had acted reasonably in defense of Jed and his family.

But the main issue in the case had nothing to do with liability.

Like most states, Wisconsin recognizes a claim for damages where a bystander suffers emotional distress after witnessing an accident that causes death or serious injury. But there’s a kicker to this rule: the bystander and the victim must be related by either blood or marriage.

For example, if you saw your wife or child die in a car crash, you could bring a claim for damages. But if the victim were your closest friend, your claim for emotional distress would be tossed out of court.

So where does a dog fit into the scheme of things?

According to Rabideau, since watching the death of a “companion animal” – I think she was referring to pets – is akin to losing a close relative, she should be allowed to recover damages for witnessing Dakota’s shooting.

But this claim went nowhere – at least not initially. So after losing the first two rounds, Rabideau found herself arguing her case to the highest court in the Badger State. And just last month, the justices finally spoke.

At the outset, the court heaped praise on man’s best friend. “A companion dog,” said the court, “is not a living room sofa or dining room furniture.”

How true.

The court also observed that dogs have been a part of human domestic life since 6,300 B.C., and that archaeologists have even found a 12,000-year-old burial site in which a human being and a dog lay buried together. (With all due respect to my two pugs, Winston and Zoë, I’ll pass on that option.)

Finally, the court remarked that dogs are an integral part of the human experience. To name just a few things, said the court, dogs work in law enforcement, help the blind, perform traditional jobs like herding animals and furnishing security, and provide devoted friendship.

But when all the dust settled, Rabideau ended up with the same result: no recovery.

Although it clearly empathized with Rabideau, the court was unwilling to modify the requirement under the bystander rule that the victim be a family member or relative – and also human. For one thing, the court was concerned about opening the litigation floodgates, since there would be “little basis” for distinguishing between dogs, cats, birds and an “infinite number” of other non-human beings.

Oh well, nothing ventured, nothing gained.

And wherever he is, Dakota is probably glad to hear that he’s not just another piece of furniture.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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