                                                                               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.




Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                           Page 1 of 12
[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.


      Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                          Page 2 of 12
[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.



      Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018   Page 3 of 12
[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


       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018   Page 4 of 12
       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).

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                            Page 5 of 12
                                          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.




       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018     Page 6 of 12
[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.

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                        Page 7 of 12
[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.

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018   Page 8 of 12
                                                    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

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                               Page 9 of 12
[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).

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018                           Page 10 of 12
       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.

       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018   Page 11 of 12
[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.




       Court of Appeals of Indiana | Opinion 49A04-1707-MI-1662 | July 23, 2018   Page 12 of 12
