Owners Sue County Over Dog’s Death

A Yorba Linda couple whose purebred dog was accidentally put to death at the Orange County Animal Shelter have filed a lawsuit against the county that includes an unusual demand for up to $25,000 for emotional distress.

“This is not about ‘Oops, we fed the wrong food to your dog,’ ” said Encino animal-law attorney Michael Rotsten, who represents the dog’s owners. “It’s a case of ‘Oops, we killed the wrong animal, a member of your family, a companion pet.’ ”

The dog, a 2-year-old Catahoula hound named Madeline, was impounded at the Orange shelter in November 1994 for being a chronic stray. Animal control workers decided to keep her there while they investigated what conditions should be imposed on the owners before allowing her release. Such investigations are standard procedure, Animal Control Director Judy Maitlen said.

Less than two weeks later, William and Shirley Simon said shelter workers told them Madeline had been destroyed “by accident.”

“We were devastated,” Shirley Simon said. “My husband still hasn’t gotten over it.”

Maitlen readily admits a mistake was made but blamed it on human error rather than a procedural problem. A worker on duty Nov. 29, 1994, apparently failed to read a notice on Madeline’s file ordering that she not be euthanized.

“It was a mistake,” Maitlen said. “But it’s important to realize that this is not something that is taken lightly around here. We are in the business of saving animals’ lives.”

A judge will decide next month whether the Simons can seek emotional damages for the death of their dog, which courts have traditionally viewed as personal property whose loss through accident does not justify damages for emotional distress.

County attorney Irving Berger said the couple are entitled to recover “market value” replacement cost of the dog but nothing more.

“Emotional distress solely from negligent injury to property is not compensable,” he said. Berger said Madeline’s death was not willful or intentional as the couple alleges, but “completely accidental.”

Animal Control deals every year with more than 30,000 live animals, each of which is handled by workers a minimum of three times, officials said.

“That’s more than 90,000 opportunities to make an error and yet it happens very, very rarely,” Maitlen said, adding that she knows of one other incident like Madeline’s occurring in the last five years. “If you can’t accept that humans make mistakes, though, well I don’t know.”

But Rotsten said he is handling four cases involving dogs that were erroneously euthanized at the shelter, with the Simons’ becoming the first to involve litigation.

The couple originally filed a claim against the county in 1994, but consideration of their claim was delayed by the county’s bankruptcy. In cases involving governmental agencies, a claim for damages is required before a lawsuit can be filed.

Rotsten said an offer of replacement cost for the Simon dog, which he figures is about $500, simply isn’t enough. The family has suffered shock and distress and sought bereavement counseling, he said.

“They can’t keep saying, ‘Here’s a couple bucks, now go away,’ ” Rotsten said. “That puts no responsibility on them at all.”

The Simons said they likely won’t replace Madeline, a gift from their daughter after their beloved 15-year-old golden retriever died two years ago. About the size of a German shepherd, Catahoula hound dogs are known to be affectionate and trainable but aggressive enough to be used as guard dogs.

“She was such a sweet little thing,” William Simon said. “She would hear me late at night opening the refrigerator door, and she’d be right there. I always had to share my ice cream with her.”