Gomsrud v. Campeau

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TORY GOMSRUD and JEREMY GOMSRUD, Petitioners, v. DANIEL R. CAMPEAU, and marital community of DANIEL R. CAMPEAU, and MELANIE CAMPEAU, Respondents.

No. 39676-2-III

Court of Appeals of Washington, Division 3

May 30, 2024

UNPUBLISHED OPINION

Cooney, J.

Jeremy and Tory Gomsrud (Gomsruds) sued Daniel Campeau and Melanie Campeau (Campeaus) after Mr. Campeau shot and killed their dog. On the Campeau's motion for summary judgment, the superior court dismissed the Gomsruds' claims for conversion, reckless or intentional infliction of emotional distress, and malicious injury to a pet.

On appeal, the Gomsruds challenge the superior court's application of RCW 16.08.020, dismissal of their claims, and holding that noneconomic damages are not cognizable for trespass to chattel or conversion.

We hold that Mr. Campeau presented sufficient evidence that the dog he witnessed harassing his chickens was "chasing" them but not "injuring" them within the meaning of RCW 16.08.020. As to the dismissal of the Gomsruds' claims for conversion, reckless infliction of emotional distress, and malicious injury to pet claims, we affirm. Finally, we hold that emotional distress damages are available for the Gomsruds' trespass to chattel claim.

BACKGROUND

The Campeaus, Kimberly Hipner, and Simona Long are neighbors. Ms Hipner's property lies between the Campeaus and the Longs. The Gomsruds are friends with the Longs and would occasionally visit them at their property with their dog Rainier, and their daughter, Emma.

Mr Campeau keeps chickens on his property, primarily for their egg production. Mr. Campeau has a gated enclosure for his chickens bounded by "deer fencing." Clerk's Papers (CP) at 172. Ms. Hipner also kept chickens in a coop on her property. In 2018, after Mr. Campeau lost his flock of chickens to a dog attack, he and Ms. Hipner entered into the following agreement titled "General Affidavit:"

PERSONALLY came and appeared before me, the undersigned Notary, the within named Kimberly I. Hipner and Daniel R Campeau, who are residents of Yakima County, State of Washington, and makes this his/her statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his/her knowledge:

I Kimberly I Hipner have given Daniel R. Campeau permission to help me care take [sic] my land/buildings and all that this entails, Security of premise ingress and regress of all property boundaries against predators, illegal activities, harm to livestock. Location of this premise is as follows:

1550 Old Cowiche rd. Tieton Washington, 98947. This agreement to commence on June 16, 2018. This agreement between the above listed parties will remain in affect [sic] until such time as both parties agree to dissolve the above agreement.

CP at 61 (some capitalization omitted). The General Affidavit was signed by both Ms. Hipner and Mr. Campeau and notarized.

Incident

Mr. Campeau stated that in the early morning hours of July 24, 2021, he saw what appeared to be a dog in his backyard. He noticed the dog again around "dawn" that same morning "lunging" at his chicken coop. CP at 40. Later that morning, Ms. Hipner informed Mr. Campeau that her chickens were gone and presumed dead.

In the early afternoon, Mr. and Mrs. Gomsrud, along with their daughter Emma, and their dog Rainier, traveled from Seattle to visit the Longs. They arrived at the Longs at approximately 12:30 p.m. After working on a lawnmower, Mr. Gomsrud and Mr. Long began pulling fence posts along the border of the Long's property, directly adjacent to Ms. Hipner's property.

Meanwhile, Rainier was sniffing near a wood pile on Ms. Hipner's property along the Long-Hipner property line. Mr. Gomsrud and Mr. Long heard a gunshot, and then heard Rainier cry out, followed by three more gunshots. Mr. Gomsrud and Mr. Long ran to Rainier, who had already succumbed to her injuries. Ms. Hipner and Mr. Campeau, who was carrying a rifle, walked over to Mr. Gomsrud and Mr. Long. Mr. Campeau claimed he shot Rainier because he saw her at his chicken enclosure harassing his chickens about 30 to 40 seconds before he shot her.

Mr. Gomsrud and Mr. Long buried Rainier's remains on the Long's property. Mr. Gomsrud told his daughter Emma what had happened and she was "emotionally devasted." CP at 143. The Gomsruds enlisted a counselor for Emma to help her "process her complicated feelings about Rainier's heedless death." Id.

The day after Rainier was killed, Mr. Campeau reported that one of his chickens, which had become very "despondent" following its harassment by the dog, was dead on the floor of the coop. CP at 36-37. Mr. Campeau also reported that his chickens became "skittish" and did not produce eggs "for several days after the incident." CP at 38, 86.

Lawsuit and Summary Judgment

The Gomsruds filed a lawsuit against the Campeaus alleging conversion, trespass to chattel, malicious injury to a pet intentional or reckless infliction of emotional distress, and property damage for Mr. Campeau's killing of Rainier.

The Campeaus moved for summary judgment dismissal of the Gomsruds' claims based on their contention that RCW 16.08.020 permitted Mr. Campeau to dispatch Rainier under the circumstances. RCW 16.08.020 is a statutory defense that allows a person to kill any dog that he or she sees "chasing, biting, injuring or killing" livestock, including chickens, "on any real property owned or leased by, or under the control" of that person. RCW 16.08.020.

In addition to arguing that all of the Gomsruds' claims should be dismissed under RCW 16.08.020, Mr. Campeau argued that the Gomsruds' claim for intentional or reckless infliction of emotional distress must be dismissed because Mr. Campeau's conduct was not outrageous as a matter of law. Further, Mr. Campeau argued that the Gomsruds' malicious injury to pet claim must be dismissed absent evidence of malice.

Finally, Mr. Campeau claimed that "chickens can in fact be scared to death," that was confirmed when one of his chickens expired the day after the incident. CP at 87. He alleged in his motion for summary judgment that though "[t]here was no other physical injury to Mr. Campeau's chickens" the birds "were stressed and . . . stress to a chicken is an injury." Id.

The Gomsruds opposed the motion arguing that the dog Mr. Campeau saw near his chicken enclosure was not "chasing" his chickens or "injuring" them within the meaning of the statute, that Mr. Campeau did not have "control" of the property on which Rainier was shot (Ms. Hipner's property), and that RCW 16.08.020 required proof of "'reasonable necessity.'" CP at 115-16. The Gomsruds also argued that Rainier could not have been the dog Mr. Campeau saw near his chicken enclosure in the early morning hours because Rainier was never on Mr. Campeau's property and did not arrive at the Longs until 12:30 p.m.

The Gomsruds further argued that their intentional or reckless infliction of emotional distress claims remained viable because Mr. Campeau's actions were outrageous, and the Gomsruds experienced foreseeable emotional distress. As to the malicious injury to pet claim, the Gomsruds argued that a reasonable fact-finder could conclude that Mr. Campeau's actions were done with malice.

Finally, the Gomsruds argued that Mr. Campeau's "lay opinion is inadmissible under ER 702-04 to support any causal connection" between the dog's harassment of the chickens and why one chicken died. CP at 120. They argued that the chicken's death was never confirmed by any medical evidence and that Mr. Campeau could not opine as to why the chickens became despondent.

After considering the evidence on summary judgment, the trial court concluded that:

6. Mr. Campeau possesses requisite skill to offer an admissible expert opinion on causation of injury to his chickens so as to overcome Plaintiffs' objection under ER 702, which this court overrules and deems admissible under CR 56.

7. Whether the factfinder concludes it was Rainier or not, the animal Mr. Campeau saw as described in findings 2 and 3 above, was "chasing" so as to fall within RCW 16.08.020.

8. Whether the factfinder concludes it was Rainier or not, the animal Mr. Campeau saw as described in findings 2 and 3 above, was "injuring" so as to fall within RCW 16.08.020.

9. The common law doctrine of "reasonable necessity" does not apply to RCW 16.08.020.

10. Plaintiffs' claim Mr. Campeau's actions constituted malicious injury to a pet. . . . [T]he Court finds [Mr. Campeau's] actions were without malice. Therefore, the malicious injury to pet claim is hereby dismissed with prejudice.

11. Plaintiffs alleged the theory of intentional infliction of emotional distress, but conceded in their briefing that Mr. Campeau did not act with the intention of inflicting emotional distress on the Plaintiffs. Therefore, the intentional infliction of emotional distress claim is hereby dismissed with prejudice.

12. Plaintiffs also allege the theory of reckless infliction of emotional distress, sometimes referred to as the tort of outrage. . . . The problem for Plaintiffs is that the Restatement (Second) Torts, sect. 46, requires that the conduct be directed at the person injured, or toward another "person". Mr. Campeau's actions undeniably were not directed at the Plaintiffs, but at their dog. A dog is not a person, even though Plaintiffs try to characterize the dog as a member of the Plaintiffs' "immediate family". . . . Therefore, Plaintiff's claim for outrage is hereby dismissed with prejudice.

CP at 306-08. The court declined to dismiss the Gomsruds' conversion, trespass to chattel, or property damage claims at this stage.

Later Mr. Campeau brought a motion...