                                                                                         F1 ED
                                                                                 COURT OE APPEAL
                                                                                       LIV00 H IT

                                                                                2013 SEP 17 ANN 8.8
                                                                                                 8

                                                                                ST)

                                                                                pY




    IN THE COURT OF APPEALS OF THE STATE OF WASHIl. A "l.
                                                  v




                                         DIVISION II


JULIE HENDRICKSON,                                                No. 39767 6 II
                                                                            - -


                             Appellant,

       V.



TENDER CARE ANIMAL HOSPITAL                                 PUBLISHED OPINION
CORPORATION d b a RIDGETOP ANIMAL
              / /
HOSPITAL (
         UBI 602 -262 385), Washington
                      -   a
for -
    profit corporation; SHANNON L.HEATH
VT 6597), licensed Washington
            a
veterinarian; the marital community or
domestic partnership comprised of SHANNON
HEATH and.DOE HEATH;KRISTEN T.
CAGE ( T 8099), licensed Washington
       V           a
veterinarian; the marital community or
domestic partnership comprised of KRISTEN
T. CAGE and DOE CAGE; and DOES 1 -10,




            BRINTNALL, J.
       QuiNN-                 —   Julie Hendrickson appeals the trial court's summary dismissal

of her claims for negligent misrepresentation, lack of informed consent, professional negligence,

reckless breach of bailment contract, and emotional damages arising out of treatment her dog

received at Tender Care Animal    Hospital Corporation   d ba
                                                           / /   Ridgetop   Animal   Hospital.   She


argues that the trial court erred when it (
                                          1)dismissed her claims for reckless breach of bailment
No. 39767 6 II
          - -



contract and emotional damages, and (2)dismissed all of her tort claims against Tender Care

based on the economic loss rule now denominated the independent duty doctrine.

         We hold that the trial court properly dismissed Hendrickson's claims for reckless breach

of bailment contract and emotional damages because no Washington court has held that such

causes   of action exist in the context of loss of         a   pet. Because our Supreme Court has not

specifically approved of the applying of the independent duty doctrine to cases involving

veterinary care liability or the torts at issue here, we reverse the trial court's summary dismissal

of Hendrickson's tort claims and remand for reconsideration of these issues.

                                                  FACTS


         On March 16, 2007, Hendrickson brought Bear, her golden retriever, to Tender Care to

have him neutered and     implanted   with   a   microchip. After the procedures, Kristen Cage, the

veterinarian on duty that evening, noticed that Bear's abdomen looked swollen. She ordered that

x rays be taken to make sure that Bear did not have gastric dilatation volvulus (GDV), life-
   -                                                                                 a

threatening condition that results from the accumulation of gas, fluid, or a combination of the

two in the stomach.     When Cage examined the x rays, she noticed that Bear had significant
                                                  -

gastric distention but not GDV.

         When Hendrickson picked Bear up after the procedures, a front desk employee told her

that Bear had vomited but that he had been given antivomiting medication and that he was

much better." Clerk's      Papers ( CP) at       32.   Hendrickson noticed that Bear's abdomen was

swollen and when she asked, a Tender Care employee told her that Bear "threw up a lot and

swallowed lots of air." at 111. The employee told Hendrickson to give Bear an antibloating
                      CP

medication, take him on frequent walks and if his condition worsened, take him to the animal

emergency hospital.

                                                       0
No. 39767 6 II
          - -



       When Hendrickson brought Bear back to her home, she did not give him the antibloating

medication and instead administered a homeopathic remedy. When she let Bear outside, he lay

down in the driveway. Noticing Bear's worsening condition, Hendrickson lifted him into her car

to take him to the emergency hospital and noticed that he had stopped breathing and had a weak,

rapid pulse. She called a neighbor to drive her and Bear to the emergency hospital while she

performed cardiopulminary resuscitation. Bear arrived at the hospital in respiratory and cardiac

arrest and could not be resuscitated. The likely cause of death was GDV.

       Hendrickson sued for professional negligence, negligent misrepresentation, lack of

informed consent, and reckless breach of bailment contract.       She also sought damages for

emotional distress arising out of the breach of bailment claim. Tender Care moved for partial

summary judgment, claiming that Hendrickson could not prove by clear, cogent, and convincing

evidence that Tender Care misrepresented Bear's condition and that claims for lack of informed

consent do not apply in cases involving animals. It also argued that because pets are personalty

under Washington law, damages for Bear's loss were purely economic and not recoverable in

tort under the economic loss rule. Finally, it claimed that Hendrickson's damages, if any, should

be limited to the replacement value of the animal because a pet owner has no right to damages

for emotional distress for.oss of a pet.
                          l

       The trial court partially granted Tender Care's summary judgment motion, dismissing

Hendrickson's tort claims, claims for emotional distress damages, and reckless breach of

bailment contract   claim.' Hendrickson appeals the trial court's summary dismissal of these



  The trial court denied Tender Care's motion to limit damages to replacement or market value
and to dismiss Hendrickson's contract claim. The trial court later granted Hendrickson's motion
to voluntarily dismiss the contract claim without prejudice.

                                                9
No. 39767 6 II
          - -



claims. We accepted discretionary review and granted Tender Care's motion to stay our review

of this case pending our Supreme Court's decision in Jackowski v. Borchelt, 174 Wn. d 720, 278
                                                                                  2

P. d 1100 ( 2012),in which our Supreme Court recognized the recharacterization of the
 3

economic loss rule as the independent duty doctrine

                                            DISCUSSION


STANDARD o. REVIEW
          F


         We review a trial court's summary judgment order de novo, engaging in the same inquiry

as   the trial court.   Ruvalcaba v. Kwang Ho Baek, 175 Wn. d 1, 6, 282 P. d 1083 ( 2012).
                                                          2              3

Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the   moving party   is entitled to    a   judgment      as a   matter   of law. "' Visser


v. Craig, 139 Wn. App. 152, 157, 159 P. d 453 (2007)quoting CR 56( )).
                                      3              (           c

         The moving . arty bears the burden of demonstrating that there is no genuine issue of
                    p

material fact. Atherton Condo. Apartment -Owners Assn Bd. of Dirs. v. Blume Dev. Co.,115

Wn. d 506, 516, 799 P. d 250 (1990).After the moving party submits adequate affidavits, the
  2                  2               "`

nonmoving party must set forth specific facts which sufficiently rebut the moving party's

contentions and disclose the existence of   a   genuine   issue   as   to   a   material fact. "' Visser, 139 Wn.


App. at 158 (quoting Meyer v. Univ. of Wash.,105 Wn. d 847, 852, 719 P. d 98 (1986)). "
                                                   2                  2            If the

nonmoving party fails     to do so, then summary      judgment         is   proper." Vallandigham v. Clover

Park Sch. Dist. No. 400, 154 Wn. d 16, 26, 109 P. d 805 (2005).
                               2                3

         We consider all evidence submitted and all reasonable inferences from the evidence in


the light most favorable to the nonmoving party. McPhaden v. Scott, 95 Wn. App. 431, 434, 975

P. d 1033, review denied, 138 Wn. d 1017 (1999). But a nonmoving party "may not rely on
 2                              2

                                                    0
No. 39767 6 II
          - -



speculation, [or on] argumentative   assertions that unresolved factual issues remain." Seven


Gables Corp. v. MGM/ A Entm't Co., Wn. d 1, 13, 721 P. d 1 ( 1986).
                   U             106 2               2

RECKLESS BREACH OF BAILMENT CONTRACT AND EMOTIONAL DISTRESS DAMAGES


       Hendrickson argues that the trial court erred when it dismissed her claims for reckless

breach of bailment and emotional distress damages. Because Hendrickson has failed to submit,

and this court is not aware of, any Washington case creating a claim for emotional distress

damages arising out of a contract action, we disagree.

       Washington law is clear that " pet owner has no right to emotional distress damages or
                                    a

damages for loss of human-
                         animal bond based on the negligent death or injury to a pet."

Sherman v. Kissinger, 146 Wn. App. 855, 873, 195 P. d 539 (2008).Thus, in support of her
                                                  3
argument that emotional damages should be recoverable for reckless breach of bailment contract,

Hendrickson primarily relies on our Supreme Court's discussion in Gaglidari v. Denny's

Restaurants, Inc., Wn. d 426, 815 P. d 1362 (1991), employment law case.
                 117 2             2              an

       In that case, Gaglidari, a Denny's employee, brought a claim for breach of employment

contract for discharging her without complying with the terms of her employment handbook.

Gaglidari, 117 Wn. d at 430. In seeking emotional distress damages, Gaglidari relied on two
                 2

decisions in which other divisions of this court held that emotional distress damages were

available for intentional or reckless breach of contract, Thomas v. French, 30 Wn. App. 811, 817,

638 P. d 613 ( 1981),rev'd on other grounds, 99 Wn. d 95, 659 P. d 1097 ( 1983),and
     2                                            2            2


2
  The Sherman court also noted that "malicious injury to an animal can support a claim for
emotional distress damages" and that Washington courts may recognize emotional distress
damages for intentional torts related to animals. 146 Wn.App. at 873 (citing Womack v. Rardon,
133 Wn. App. 254, 263 135 P. d 542 (2006)).
                                 3                However, as this appeal concerns neither issue,
we do not address the matter further.

                                                5
No. 39767 6 II
          - -



Cooperstein v. Van Natter, 26 Wn. App. 91, 99, 611 P. d 1332, review denied, 94 Wn. d 1013
                                                    2                             2

1980). Both decisions hinged their analysis on the following provision of the Restatement of

Contracts §     341 (1932):

          In actions for breach of contract, damages will not be given as compensation for
          mental suffering, except where the breach was wanton or reckless and caused
          bodily harm and where it was the wanton or reckless breach of a contract to
          render a performance of such a character that the defendant had reason to know
          when the contract was made that the breach would cause mental suffering for
          reasons other than mere pecuniary loss.

          The Cooperstein and Thomas courts held that emotional distress damages were available

when the breach was either intentional or reckless and the defendant had reason to know when


the contract was made that a breach would cause mental suffering for reasons other than mere

pecuniary loss. Cooperstein, 26 Wn. App. at 99; Thomas, 30 Wn. App.at 817. But our Supreme

Court in     Gaglidari   held that these courts had         interpreted   the Restatement too    broadly.   117


Wn. d at 443.
  2                  The court    quoted   Restatement ( Second)          of   Contracts §   353 ( 1981),
                                                                                                        which

provides, Recovery for emotional disturbance will be excluded unless the breach also caused
          "

bodily harm or the contract or the breach is of such a kind that serious emotional disturbance

was   a
          particularly likely   result." Gaglidari, 117 Wn. d at 443. Comment a to this section
                                                          2


provides,

          In the second exceptional situation, the contract or the breach is of such a kind
          that serious emotional disturbance   was a particularly likely result.  Common
          examples are contracts of carriers and innkeepers with passengers and guests,
          contracts for the carriage or proper disposition of dead bodies, and contracts for
          the   delivery of   messages     concerning   death.      Breach of such a contract- is
          particularly likely to cause serious emotional disturbance. Breach of other types
          of contracts, resulting for example in sudden impoverishment or bankruptcy, may
          by chance cause even more severe emotional disturbance, but, if the contract is
          not one where this was a particularly likely risk, there is no recovery for such
          disturbance.


            SECOND)OF CONTRACTS §
RESTATEMENT (                                    353 cmt. a (1981).

                                                        G
No. 39767 6 II
          - -



        Based on these examples, the court held that the Cooperstein and Thomas courts

misapplied the Restatement because

        Restatement  of Contracts § 341 does not support the general availability of
        emotional distress damages in breach of contract actions. Rather, Restatement of
        Contracts §       341 comment a focuses on the type or character of the contract.
        Emotional damages are available under the original Restatement only when the
        type or character of the contract renders emotional suffering for reasons other than
        pecuniary loss foreseeable from the outset. The Court of Appeals' standard goes
        beyond the-Restatement by allowing emotional distress damages regardless of the
        type of contract involved whenever the breach was wanton or reckless and
        emotional distress was foreseeable from the outset.


Gaglidari, 117 Wn. d at 445. Thus, the court held,
                 2

        W] ile Washington case law has recognized that a breach of contract may also
            h
        lead to a related tort claim, we have yet to erase the traditional distinction between
        tort and contract damages in order to award damages for emotional distress on an
        ordinary    breach of contract action.          Anything to the contrary in Thomas or
        Cooperstein is specifically disapproved.

Gaglidari, 117 Wn. d at 445.
                 2

        Noting the importance of predictability and employer discretion in employment contracts,

the court held that emotional distress damages caused by breach of employment contract were

not recoverable in Washington. Gaglidari, 117 Wn. d at 447 48. The court also recognized that
                                                2          -

although " breach     of   an   employment     contract may result in emotional distress ... [   t] primary
                                                                                                  he

purpose in      forming   such contracts ...     is economic and not to secure the protection of personal

interests. "'   Gaglidari, 117 Wn. d at 441 (quoting Valentine v. Gen. Am. Credit, Inc., Mich.
                                 2                                                     420

256, 263, 362 N. .628 (1984)).
              2d
               W

        Although the Gaglidari court denied the plaintiff's claim for emotional distress damages

for breach of an employment contract, Hendrickson asks this court to apply the Restatement rules

set forth in Gaglidari to a claim for breach of a bailment contract for veterinary services. She

argues that the type of contract at issue here is the type of contract contemplated by. the
                                                         7
No. 39767 6 II
          - -



Restatement as particularly likely to cause severe emotional disturbance if breached, citing our

decision in Price v. State, 114 Wn. App. 65, 57 P. d 639 ( 002), support.
                                                 3       2     as

        In Price, adoptive parents sued the Washington State Department of Social and Health

Services for negligent misrepresentation for its failure to disclose the extent of the adopted

child's problems, seeking damages for emotional distress. 114 Wn. App. at 67. Upon reviewing

Washington case law dealing with emotional damages, we recognized that emotional distress

damages tended to be unavailable when the parties had a preexisting, primarily economic

relationship, but may be available if the relationship was not primarily economic. Price, 114

Wn. App. at 71. Thus, we held that the trial court properly awarded emotional damages to the

adoptive parents because the relationship " etween an adoption agency and prospective adoptive
                                          b

parents ..      is not merely economic, and a reasonable person standing in the defendant's shoes

would easily foresee that its breach is likely to cause significant emotional distress."Price, 114

Wn. App. at 73. In reaching this holding, we cited other cases involving types of relationships

sufficient to give rise to emotional distress damages, two involving the patient -
                                                                                 physician

relationship and one involving the insurer -
                                           insured relationship. See Harbeson v. Parke-
                                                                                      Davis,

Inc., Wn. d 460, 483, 656 P. d 483 (1983)wrongful birth action);
    98  2                  2             (                     Berger v. Sonneland, 144

Wn. d
  2          91, 106, 26 P. d 257 ( 2001) (
                          3               physician's wrongful disclosure of confidential

information);
            Anderson v. State Farm Mut. Ins. Co.,101 Wn. App. 323, 333, 2 P. d 1029 (2000)
                                                                           3

insurer bad faith),
                  review denied, 142 Wn. d 1017 (2001).
                                       2

        Hendrickson argues that the contract for veterinary services at issue here was more

analogous to the relationship between the adoption agency and adoptive parents in Price than the

employer -employee relationship      in   Gaglidari. Thus, she argues, under the Restatement, the

reckless breach of the contract to    care   for Bear   was   the   type of   contract   likely   to   cause severe
No. 39767 6 II
          - -



emotional disturbance, thus warranting emotional distress damages even absent bodily harm. In

support of her contention that " motional suffering is foreseeable and expected when companion
                               e

animals are injured or killed,"
                              Hendrickson cites multiple Washington cases discussing the

relationship between humans and companion animals. Br. of Appellant at 35 (quoting Pickford

v.   Masion, 124 Wn. App. 257, 263, 98 P. d 1232 ( 2004) (Pickford, with good reason,
                                        3                  "`

maintains that Buddy is much more than a piece of property; we agree."');
                                                                     Womack v. Rardon,

133 Wn. App. 254, 263 64, 135 P. d 542 (2006) ( "` damages are consistent with actual and
                      -        3              The

intrinsic value concepts as found in Pickford because, depending upon the particular case facts,

harm may be caused to a person's emotional well being by malicious injury to that person's pet
                                                -

as   personal property. "');   Mansour v. King County, 131 Wn. App. 255, 267, 128 P. d 1241
                                                                                   3

2006) We have recognized the] emotional importance of pets to their families. "')).
      ( "[                    `

         But Hendrickson's reliance     on   these cases is   misplaced.   Price and the other cases


involving emotional damages, while instructive, are not analogous here because they did not

involve claims for emotional damages arising out of a reckless breach of contract; rather, they all

involved negligence claims in tort. Moreover, the harm involved in those cases was the type for

which emotional     damages have historically been available. For example, in Harbeson, in

awarding emotional distress damages for wrongful birth, our Supreme Court recognized that

although the wrongful death of a child statute, which provides for emotional distress damages,

was not necessarily applicable to a wrongful birth claim because the statute involves injury to a

child, not the child's parents, the statute reflects a policy to compensate parents not only for
                                "

pecuniary loss but also for emotional injury [and there appears to be no compelling reason that

policy should not apply in wrongful birth actions."98 Wn. d at 475.
                                                        2



                                                    0
No. 39767 6 II
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       By contrast, here, although the Washington cases Hendrickson cites recognize the

existence of emotional suffering resulting from the injury to or loss of a companion animal, those

cases uniformly recognize the historic treatment of those animals as property under Washington

law and the limitation on emotional distress damages for such injury except in cases of malicious

or intentional infliction of injury to those animals. In fact, Hendrickson has failed to submit, and

this court is not aware of, any Washington case applying the Restatement rule and creating a

claim for emotional distress damages arising out of a contract action. Thus, recognizing for the

first time the existence of emotional distress damages for reckless breach of a bailment contract

for veterinary services would constitute a significant change in the law and, as the Gaglidari

court noted,

                 The impact of allowing emotional distress damages for breach of contract
       would indeed be enormous. It is easily predictable there would be a jury issue on
       emotional distress in nearly every employee discharge case and in fact nearly
       every breach of contract    case.   The contractual consensus of the parties will
       become secondary to an action in tort. ,This will represent a profound change in
       the law, the implication of which probably can be explained only by adverting to
       the " aw of Unintended Consequences."If there is to be a change of the common
           L
       law, we believe a more .prudential approach would be for the Legislature to
       consider the matter prior to such a change occurring.

117 Wn. d at 448.
      2                Accordingly, we hold that the trial court did not err when it dismissed

Hendrickson's claims for reckless breach of bailment contract and.motional distress damages.
                                                                 e

INDEPENDENT DUTY DOCTRINE


       Hendrickson next argues that the trial court erred when it dismissed her tort claims based

on the former economic loss rule which, while this appeal was pending, was recharacterized as

the independent duty doctrine. Because our Supreme Court has not specifically approved of the

application of the independent duty doctrine to cases involving the torts at issue here or in cases



                                                 10
No. 39767 6 II
          - -



of   veterinary liability, we          agree.    The trial court erred when it dismissed Hendrickson's tort


claims under the economic loss rule; remand is necessary for reconsideration of these claims.

         When a court is called to "distinguish between claims where a plaintiff is limited to

contract remedies and cases where recovery in tort may be available,"Washington courts

historically applied the economic loss rule. Eastwood v. Horse Harbor Found.,Inc., Wn. d
                                                                                 170 2

380, 389, 241 P. d 1256 (2010). The rule applied "to hold parties to their contract remedies
               3

when a loss potentially implicates both tort and contract relief" Alejandre v. Bull, 159 Wn. d
                                                                                           2

674, 681, 153 P. d 864 (2007). Under our Supreme Court's characterization of the economic
               3

loss rule in Alejandre, the "key inquiry"was "the nature of the loss and the manner in which it

occur[ d], e.,we] e the losses economic losses, with economic losses distinguished from
     e   i. [ r

personal injury        or   injury   to other   property. If the claimed loss [was] an economic loss ...   then


the parties [were] limited to contractual remedies."159 Wn. d at 684..
                                                          2

         While this appeal was pending, our Supreme Court in Eastwood "
                                                                      recast the economic

loss rule   as   the   independent duty          doctrine." Jackowski, 174 Wn. d at 730. In Eastwood, the
                                                                             2


court noted in a plurality decision that "[ he term `economic loss rule' has proved to be a
                                          t]

misnomer"because it gives the impression that this is a rule of general application and any time
                    "

there is    an   economic loss, there           can never    be recovery in   tort."170   Wn. d at 387 88. It
                                                                                            2          -




3 In Eastwood, Justice Fairhurst wrote the lead opinion on behalf of three justices and Justice
Chambers wrote for four               concurring justices. Chief Justice Madsen also concurred separately
but stated that the plurality's lengthy discourse on the economic loss rule and its new approach
                                  "
for   determining       when the rule       applies    is   unnecessary." Eastwood,   170 Wn. d at 402.
                                                                                            2              But

regardless of the differences of opinion in Eastwood,
        Justice Fairhurst's.
                lead opinion combines with Justice Chambers' concurrence to
        comprise a majority of justices agreeing in Eastwood that the independent duty
        doctrine does not bar a tort claim merely because a contract, or other opportunity
        to allocate risk, also exists between the parties, as long as the tort claim arises
        independently of the contract or other similar relationship.
                                                               11
No. 39767 6 II
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reasoned that such a rule was too broad because any loss arising from a contract could

conceivably be characterized as an economic loss, especially under the broad definition of

 conomic damages" under
e]                              RCW    a).
                                       250(
                                       4.6.Eastwood, 170
                                          1
                                          5 )(                          Wn. d at 388. It further
                                                                          2


noted that a bright line rule prohibiting economic losses from being recoverable in tort does not

comport with longstanding case law, citing the torts of intentional interference with another's

contractual relations, wrongful discharge, failure of an insurer to act in good faith, fraudulent

concealment or misrepresentation, negligent misrepresentation, breach of an agent's fiduciary

duty to act in good faith, and negligent real estate appraisal as examples. Eastwood, 170 Wn. d
                                                                                            2

at 388.


          Recognizing the shortcomings of the economic loss rule, the Eastwood court held that the

more appropriate inquiry when determining if tort remedies are recoverable when a contractual

relationship also exists is whether an independent legal duty exists, outside the parties'

contractual relationship, imposing a duty on the tortfeasor. 170 Wn. d at 389. Thus, the court
                                                                   2

held, " n injury is remediable in tort if it traces back to the breach of a tort duty arising
      A

independently of the terms of the contract."Eastwood, 170 Wn. d at 389. The court named this
                                                            2

inquiry the "ndependent duty doctrine."Eastwood, 170 Wn. d at 398.
            i                                          2

          Although it reframed the appropriate inquiry and renamed the rule, the court noted that

when determining




Key Devel. Inv.,
               LLC v. Port of Tacoma, 173 Wn. App. 1, 19 20,292 P. d 833 (2013).
                                                         -       3
4
  RCW 4.6.
        a) "[
        250(  1 defines
              5 )( e]                conomic damages" as "objectively verifiable monetary losses,
including medical expenses, loss of earnings, burial costs, loss of use of property, cost of
replacement or repair, cost of obtaining substitute domestic services, loss of employment, and
loss of business or employment opportunities."

                                                 12
No. 39767 6 II
          - -



      how a court can distinguish between claims where a plaintiff is limited to contract
      remedies and cases where recovery in tort may be available[,a] review of our
      cases. on the economic loss rule shows that ordinary tort principles have always
      resolved this question.... court determines whether there is an independent
                                  The
      tort duty of care, and "[ he existence of a duty is a question of law and depends
                             t]
      on mixed considerations of logic, common sense,justice, policy, and precedent."

Eastwood, 170 Wn. d at 389 (internal quotation marks omitted) third alteration in original)
                2                                             (

quoting Snyder v. Med. Serv. Corp. ofE. Wash.,145 Wn. d 233, 243, 35 P. d 1158 (2001)).
                                                    2                 3

       A majority of our Supreme Court subsequently recognized its adoption of the

independent duty doctrine in Jackowski and Elcon Construction, Inc. v. Eastern Washington

University, 174 Wn. d 157, 165, 273 P. d 965 (2012).
                  2                  3             Notably, the Elcon court recognized that

       t] date, we have applied the [independent duty] doctrine to a narrow class of
         o
       cases, primarily limiting its application to claims arising out of construction on
       real property and real property sales. " e have done so in each case based upon
                                               W
       policy    considerations   unique   to those industries.      We have never applied the
       doctrine as a rule of general application outside of these limited circumstances."
       Eastwood, 170 Wn. d at 416 (Chambers, J.,
                          2                         concurring).Indeed, in Eastwood we
       directed lower courts not to apply the doctrine to tort remedies "unless and until
       this court has, based upon considerations of common sense, justice, policy and
       precedent, decided     otherwise."     Eastwood, 170 Wn. d at 417 (Chambers, J.,
                                                              2
       concurring).

174 Wn. d at 165.
      2


       Here, Hendrickson's complaint included claims for negligent misrepresentation, lack of

informed consent, and professional negligence in the context of the provision of veterinary

services. No Supreme Court case has applied the independent duty doctrine to claims for lack of

informed consent or professional veterinary negligence, and although the court has applied the

doctrine in cases involving claims for negligent misrepresentation, those cases have exclusively

involved real estate contracts and construction          defects,   not   veterinary liability. Elcon, 174

Wn. d at 165.
  2




                                                    13
No. 39767 6 II
          - -



       Accordingly, because our Supreme Court has specifically prohibited lower courts from

applying the doctrine unless it'as approved of the doctrine's application to a particular tort,we
                               h
hold that the trial court erred by dismissing Hendrickson's tort claims based on the former

economic loss rule. Elcon, 174 Wn. d at 165.
                                 2

       In conclusion, we hold that the trial court properly dismissed Hendrickson's claims for

reckless breach of bailment contract and emotional damages because no Washington court has

held that such causes of action exist and if such major changes in the law are to be effected, they


5 We have criticized this rule for its rigidity. See Austin v. Ettl, 171 Wn. App. 82, 96 n.5, 286
                                                                                          1
P. d 85 (2012)Van Deren, J.,
   3             (               dissenting) noting that our Supreme Court's rule " orbidding the
                                             (                                    f
trial courts and intermediate appellate courts from developing answers [regarding whether the
independent duty doctrine applies to a particular tort claim] unnecessarily delays clarification of
the law with regard to tort claims in the contract context. "). But in addition to our Supreme
Court's admonition against lower courts' independent analysis of the applicability of the
independent duty doctrine in contexts not already approved by our Supreme Court, because the
facts of this case are so removed from the context in which the doctrine has normally been
applied, we decline to independently address whether the doctrine should be applicable in the
context of veterinary liability.
6
 Hendrickson makes two additional arguments based on the former economic loss rule: that the
special relationship" exception to the rule applies here and that the loss of a dog is not an
economic loss"under the reasoning of Alejandre. Because we hold that the trial court erred in
dismissing Hendrickson's claims under the former economic loss rule, we do not address these
arguments.
       Hendrickson also argues that the trial court should not have dismissed her lack of
informed consent, negligent misrepresentation, and professional negligence claims on the merits,
noting that this court can affirm on any basis supported by the record below. In its summary
judgment motion, Tender Care argued that in the event the trial court did not dismiss
Hendrickson's claims based on the former economic loss rule, the trial court should have
dismissed her negligent misrepresentation and lack of informed consent claims as a matter of
law. But because Tender Care made no argument to the trial court regarding Hendrickson's third
tort claim —professional negligence the trial court's ruling dismissing "[ 11 claims sounding in
                                    —                                   a]
tort"appears to have been based solely on the former economic loss rule. CP at 273. On appeal,
Hendrickson gives only passing treatment to the professional negligence claim, arguing simply
that " r.Kern's declaration amply puts at issue the question of malpractice."Br. of Appellant at
     D
23. And Tender Care does not respond to any of Hendrickson's arguments on appeal regarding
the substance of the three tort claims. Accordingly, we decline to address the substance of
Hendrickson's tort claims at this time.     RAP 9.2.
                                                 1       On remand, both parties will have the
opportunity to argue their respective positions on the merits of these tort claims.
                                                14
No. 39767 6 II
          - -



should be made by the legislature. However, because our Supreme Court has not specifically

approved of the application of the independent duty doctrine to cases involving the torts. t issue
                                                                                         a

here or in cases of veterinary liability, we reverse the trial court's summary dismissal of

Hendrickson's tort claims and remand for reconsideration of these issues.




                                                  Q INN-
                                                       BRINTNALL, J.
We concur:




7 A. .
  J.
   C


FEARING, J.




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