Melodie Liddle v. Cameron F. Clark, in his official capacity as Director of the Indiana Department of Natural Resources

FILED
Jul 23 2018, 5:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Laura M. Nirenberg Curtis T. Hill, Jr.
E. Anne Benaroya Attorney General of Indiana
Trevor DeSane
Center for Wildlife Ethics Andrea E. Rahman
LaPorte, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melodie Liddle, July 23, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A04-1707-MI-1662
v. Appeal from the Marion Superior
Court
Cameron F. Clark, in his official The Honorable Timothy W. Oakes,
capacity as Director of the Judge
Indiana Department of Natural
The Honorable Therese Hannah,
Resources, Paul Sipples, as an Commissioner
individual and in his official
capacity as Manager of Trial Court Cause No.
Versailles State Park, and Harry 49D02-1306-MI-16812
Bloom,
Appellees-Defendants.
Shepard, Senior Judge.
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[1] Melodie Liddle’s dog, Copper, died in a concealed animal trap in Versailles
State Park. Liddle sued several state officials seeking damages. She also asked
the trial court to declare invalid state-issued emergency rules governing trapping
in state parks.
[2] The court awarded damages to Liddle for the loss of Copper, but she appeals
the court’s rulings on summary judgment limiting the calculation of damages
and denying her request for declaratory judgment.1
Facts and Procedural History
[3] Versailles State Park (VSP) sits on 5,988 acres in southeastern Indiana next to
the city of Versailles. In the mid-2000s, the park received complaints from
visitors about raccoons. Raccoon overpopulation may have been an issue
throughout Indiana’s state park system, as the Indiana Department of Natural
Resources decided to facilitate trapping in its parks statewide. In November
2005, DNR issued an emergency rule that authorized park managers to permit
individuals to trap raccoons during Indiana’s official trapping season.
[4] DNR reissued the emergency rule on an annual basis from 2007 through 2013,
reauthorizing park managers to permit raccoon and other animal trapping.
Prior to 2012, the rule did not include any guidance on how traps should be
placed or whether notice should be given to park visitors.
1
We held oral argument in Indianapolis on June 8, 2018. We thank the parties for their presentations.
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[5] Harry Bloom was a security officer at VSP and had extensive experience in
trapping animals. Beginning in 2007, the park’s manager authorized him to
trap raccoons. Bloom installed his own traps during the December trapping
season. He used lethal “bodygrip” style traps. Appellant’s App. Vol. 2, p. 91.
[6] Bloom decided where to place the traps, concealing some of them in open-
ended wooden boxes he had built. The park manager did not keep track of
where Bloom put the traps. Bloom did not post signs to warn parkgoers
because he was concerned about theft, having had seven traps stolen in VSP
over the years. Between 2007 and 2013 he trapped 35 to 50 raccoons during
trapping season. Bloom harvested the pelts from the raccoons and apparently
sold them. See id. at 92 (“I processed the hides (furs) from these animals to
partially compensate my time, equipment, and expenses incurred.”).
[7] December 16, 2011, was an unseasonably warm day. Melodie Liddle drove to
VSP with her two dogs to take a walk. One of the dogs, Copper, was a ten-
year-old beagle mix. Liddle kept the dogs on leashes, and she walked on a
paved road in the park. The dogs led Liddle off the road and down an
embankment to a stream. At that point, Copper stuck her head in an open-
ended wooden box and became caught in one of Bloom’s traps. She cried out
as the trap closed around her, drawing Liddle’s attention. Liddle struggled for
several minutes to free Copper while calling for help, but no one heard her. She
could not pry open the trap, which had clamped down on Copper’s neck.
Copper died from suffocation.
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[8] Liddle called a friend, Gene Beach, who arrived at the scene and removed
Copper’s body from the trap. Liddle went to the park office and found park
manager Paul Sipples, who returned to the trap site with her and picked up the
trap. When Liddle complained about the unmarked trap, Sipples stated that if
they had put out warning signs, someone would have stolen the traps.
[9] Bloom removed the rest of the traps from the park that evening, and he has not
used lethal traps at VSP since the incident. The versions of the emergency
trapping rule that were issued in 2012 and 2013 banned the use of lethal body-
gripping traps on dry land and required park staff to post notices warning
visitors about trapping. Id. at 46-49.
[10] Liddle filed suit in June 2013, naming DNR Commissioner Cameron Clark,
park manager Paul Sipples, and Harry Bloom as defendants. We refer to the
defendants collectively as DNR. Liddle alleged DNR was negligent. She
further requested declaratory judgment, specifically asking the court to declare
the emergency rules void as unauthorized by DNR’s statutory authority. DNR
moved to dismiss Liddle’s claim for declaratory judgment. In a February 12,
2014 order, the court granted DNR’s motion in part, concluding Liddle’s
challenge to the 2012 and 2013 versions of the rule could proceed, but her
challenge to prior versions of the rule was time-barred.
[11] Next, DNR filed a motion for partial summary judgment. On July 1, 2016, the
court granted the motion, determining: (1) Sipples and Bloom were immune
from personal liability under the Indiana Tort Claims Act because they acted
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within the scope of their roles as employees; (2) Liddle’s damages would be
limited to Copper’s fair market value at the time of death; and (3) Liddle’s
challenge to the 2012 and 2013 versions of the rule was moot.2
[12] Both parties filed further motions, and the trial court held oral argument. On
June 27, 2017, the court issued an order on the cross-motions for summary
judgment, determining: (1) Liddle was entitled to summary judgment because
DNR created an unreasonable risk of harm and failed to protect her and her
property; (2) DNR was not entitled to summary judgment on its claim of
contributory negligence; and (3) Liddle was entitled to $477.00 in damages,
reflecting a calculation of Copper’s fair market value as drawn from examples
of beagle sales in Indiana that were submitted by the parties. This appeal
followed.
Discussion and Decision
[13] Liddle presents two issues arising from the trial court’s July 1, 2016 order
granting partial summary judgment to DNR:
I. Did the court err in ruling in favor of DNR on Liddle’s
request for declaratory judgment on the emergency
trapping rules; and
II. Did the court err in excluding sentimental value from the
calculation of Liddle’s damages?
2
Liddle asked the court to certify the July 1, 2016 order for discretionary interlocutory appeal, and the court
granted the request. On November 10, 2016, the Court of Appeals declined to accept jurisdiction over the
interlocutory appeal. Liddle v. Clark, 49A02-1609-MI-2177 (Ind. Ct. App. Nov. 10, 2016).
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I. Standard of Review
[14] A movant is entitled to summary judgment “if the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C).
“Summary judgment imposes a heavy factual burden on the moving party—
and a correspondingly light burden for the non-movant’s response.” In re Ind.
State Fair Litig., 49 N.E.3d 545, 548 (Ind. 2016).
[15] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). We construe all facts and
reasonable inferences drawn therefrom in a light most favorable to the non-
moving party. McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906
(Ind. 2009). We review questions of law under a de novo standard and owe no
deference to a trial court’s legal conclusions. Int’l Union of Police Assocs., Local
No. 133 v. Ralston, 872 N.E.2d 682 (Ind. Ct. App. 2007).
II. Declaratory Judgment
[16] Liddle asked the trial court to declare that DNR exceeded its statutory authority
by issuing the emergency rules allowing park managers to permit commercial
fur trapping. She specifically claims that allowing trappers to sell the fur that
they harvested violated the law. Liddle acknowledges that our review is limited
to the validity of the 2012 and 2013 versions of the emergency rule. Reply Br.
p. 9, n.10.
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[17] The DNR argues that Liddle’s challenge to the validity of the rules is moot.3
We agree. A case becomes moot when it is no longer live and the parties lack a
legally cognizable interest in the outcome or when no effective relief can be
rendered. Save Our Sch. v. Ft. Wayne Cmty. Schs., 951 N.E.2d 244 (Ind. Ct. App.
2011), trans. denied.
[18] Liddle’s claim for declaratory relief focused on whether the emergency rules
authorizing trapping in state parks violated governing statutes. The 2012 and
2013 versions of the rule have expired and are no longer in effect, as are any
permits that park managers issued under those versions of the rule.
[19] Further, Liddle concedes DNR has stopped using the emergency rule process to
govern trapping in state parks. Appellant’s Br. p. 22. Instead, in 2014, the
General Assembly amended Indiana Code section 14-22-6-13 to permit the
DNR director to “authorize the taking of a species” within a state park if the
species poses a hazard to individuals or risk of damage to the park’s ecological
balance. 2014 Ind. Acts 2827. The director shall make the decision pursuant to
“rules adopted under IC 4-22-2.” Id. Liddle’s challenge to the validity of the
emergency rules is no longer live, and any decision we might issue as to the
rules would be purely advisory.
3
DNR also claims Liddle lacks standing to challenge the 2012 and 2013 versions of the emergency rule
because Copper’s death occurred in 2011, before those versions took effect. Because we dispose of the issue
on mootness grounds, we need not address this claim.
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[20] Liddle argues the issue of fur trapping for profit is not moot because the alleged
misconduct—allowing trappers to sell the furs they harvest in state parks, in
violation of statutory authority—is ongoing. That may be so, but Liddle
presented her claim in the context of the emergency rules, asking the trial court
and this Court to compare the text and application of these rules to DNR’s
statutory authority. Any trapping that occurs pursuant to the director’s
authority under Indiana Code section 14-22-6-13 and associated rules raises
different statutory questions and different facts.
[21] Liddle further argues that even if the Court deems her claim for declaratory
relief to be moot, the Court should nonetheless address her claim because it
pertains to a recurring issue of great public importance. Indiana courts may
adjudicate a moot claim on the merits “upon the existence of three elements:
the issue concerns a question of great public importance which is likely to recur
in a context which will continue to evade review.” DeSalle v. Gentry, 818
N.E.2d 40, 49 (Ind. Ct. App. 2004).
[22] Liddle’s specific claim—that DNR wrongfully promulgated emergency rules
permitting fur trapping for profit, in violation of statutory authority—is unlikely
to recur. Further, to the extent that Liddle wishes to challenge the general
practice of trapping for profit in Indiana’s public parks, if DNR continues to
allow trapping under Indiana Code section 14-22-6-13 then the issue will not
evade judicial review but will instead arise in the future. For these reasons, we
decline to apply the public interest exception, and we affirm the trial court’s
determination that Liddle’s claim for declaratory relief is moot.
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III. Damages
[23] Liddle argues the trial court erred in limiting her damages to Copper’s fair
market value, claiming sentimental value should have been included in the
calculation.
[24] Damages directly attributable to the wrong done are recoverable. Greives v.
Greenwood, 550 N.E.2d 334 (Ind. Ct. App. 1990). Damages may not be
awarded on guess or speculation, but must be ascertainable with reasonable
certainty. Id. In general, damages for the destruction of personal property are
measured by the fair market value of the property at the time of the loss.
Ridenour v. Furness, 546 N.E.2d 322 (Ind. Ct. App. 1989).
[25] Regarding pets, there are jurisdictions that have determined that sentimental
value may be included in calculating damages arising from the death of a pet,
by statute or judicial decision. See, e.g., Tenn. Code Ann. § 44-17-403 (2007)
(allowing up to $5,000 in “noneconomic damages” for the negligent death of
one’s pet, subject to certain restrictions); 510 Ill. Comp. Stat. Ann. 70/16.3
(2008) (authorizing damages, including for “emotional distress,” arising from
the death of one’s pet); Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y. Civ. Ct.
1980) (affirming award for emotional damages suffered by pet owner arising
from pet’s death due to negligence).4
4
Recent academic debate features opposing perspectives. See, e.g., Lauren M. Sirois, Comment, Recovering for
the Loss of a Beloved Pet: Rethinking the Legal Classification of Companion Animals and the Requirements for Loss of
Companionship Tort Damages, 163 U. Pa. L. Rev. 1199 (2015) (arguing that loss of companionship damages
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[26] By contrast, Indiana has long held that animals are personal property, and the
fair market value of the animal at the time of loss is the appropriate basis for
calculating damages. See Toledo & Wabash Ry. Co. v. Smith, 25 Ind. 288 (1865)
(market value of horse at time of death was the measure of damages); Jacquay v.
Hartzell, 1 Ind. App. 500, 27 N.E. 1105, 1105 (1891) (“One who willfully and
maliciously kills a dog which is not vicious or dangerous in its disposition and
habits, and is not engaged in committing damages, is liable to the owner for the
fair value of the animal.”); Moorman Mfg. Co. v. Barker, 110 Ind. App. 648, 40
N.E.2d 348 (1942) (measure of damages was fair market value of sows before
and after harm occurred); Ridenour, 546 N.E.2d 322 (assessing value of
erroneously caught sport fish); Star Bank, N.A. v. Laker, 637 N.E.2d 805 (Ind.
1994) (fair market value of a horse was the proper measure of damages); Harlan
Sprague Dawley, Inc. v. S.E. Lab Group, Inc., 644 N.E.2d 615 (Ind. Ct. App. 1994)
(lab entitled to full market value of lab rats destroyed by defective equipment),
trans. denied.
[27] The Court most recently addressed this issue in Lachenman v. Stice, 838 N.E.2d
451 (Ind. Ct. App. 2005), trans. denied. Lachenman owned a terrier, but other
dogs that belonged to neighbors, the Stices, attacked and killed the terrier. The
trial court determined Lachenman’s damages would be limited to the terrier’s
should be expanded to cover companion animals); Victor E. Schwartz and Emily J. Laird, Non-Economic
Damages in Pet Litigation: The Serious Need To Preserve a Rational Rule, 33 Pepp. L. Rev. 2 (2006) (arguing that
allowing non-economic damages in pet cases is bad public policy and will ultimately harm rather than help
pets).
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purchase price and to veterinary bills. On appeal, Lachenman argued he should
be allowed to present evidence of value other than fair market value. The Court
wrote: “However unfeeling it may seem, the bottom line is that a dog is
personal property, and the measure of damages for the destruction of personal
property is the fair market value thereof at the time of the destruction.” Id. at
467. Thus, sentimental value was not a factor in calculating damages.
[28] We are constrained to follow precedent and to conclude the trial court did not
err in limiting Liddle’s damages to Copper’s fair market value. Further, even if
we were deciding from a clean slate whether sentimental damages should be
recoverable for the death of a pet due to negligence, it would be difficult to
determine where to draw the line. Would all types of pets be included? Which
individuals would be entitled to recover such damages for the loss of a pet? As
the Wisconsin Supreme Court said in denying recovery for emotional distress
arising from the killing of a pet, “allowance of recovery would enter a field that
has no sensible or just stopping point.” Rabideau v. City of Racine, 243 Wis. 2d
486, 500, 627 N.W.2d 795, 802 (2001).
[29] Liddle cites to the Court’s decision in Campins v. Capels, 461 N.E.2d 712 (Ind.
Ct. App. 1984). It was a case with very different facts. A burglar took several
items of gold jewelry from Capels’ home and sold them to a gold dealer,
Campins, who melted them down. Capels sued Campins, claiming he knew or
should have known the jewelry was stolen. The trial court determined Campins
was liable for the destruction of one wedding ring and three award rings Capels
received for his work in the auto racing industry.
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[30] On appeal, Campins challenged the trial court’s valuation of the award rings at
$1,000 each, claiming those valuations were well above their fair market value.
A panel of this Court determined the award rings were not “ordinary jewelry”
but rather “coveted awards and symbols of certain achievements accomplished
by very few.” Id. at 720. As a result, the Court concluded the rings “should be
valued differently than other jewelry.” Id. Thus, “sentimental value” could be
considered for items such as heirlooms, family papers and photographs,
handicrafts, and trophies. Id. at 721.
[31] We conclude the holding in Campins does not control here because the Court
intended for its decision to apply to inanimate items whose special origin would
likely add actual value. Where pets are concerned, we follow Indiana’s
longstanding precedent limiting recovery to the pet’s fair market value.
Conclusion
[32] For the reasons stated above, we affirm the judgment of the trial court.
[33] Affirmed.
[34] Vaidik, C.J., and Brown, J., concur.
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