## Facts

- In August 1970, Junelle Brousseau received a mixed-breed German Shepherd as a gift shortly after her husband died.
- By 1979, Brousseau was a retired woman living alone, and the dog had become her constant companion.
- On July 28, 1979, Brousseau delivered her healthy, eight-year-old dog to Benjamin Rosenthal, doing business as Metropolitan Dog Cat Hospital, for boarding.
- When Brousseau returned to pick up the dog less than two weeks later (August 10, 1979), Rosenthal told her the dog had died on August 6 while in his custody.
- Rosenthal could not provide a satisfactory explanation for the death.
- Brousseau arranged for an autopsy, but it was inconclusive as to the cause of death.
- Brousseau brought a small claims negligence action against Rosenthal.
- At trial, Brousseau testified about her close bond with the dog and the emotional impact of the loss.
- Evidence was also introduced that Brousseau’s home was burglarized after the dog died; she claimed the dog’s barking would likely have deterred the intruders.

## Issues

1. In a mutual-benefit bailment created by paid boarding of a dog, does the bailee’s failure to return the dog alive create a presumption of negligence, and did the bailee rebut that presumption with proof of due care or a non-negligent cause?
2. If the bailee is liable, what is the proper measure of damages for the death of a mixed-breed dog with no ascertainable market value—may the court award the dog’s actual value to the owner rather than only nominal or market-value damages?

## Decision

- The court found that the boarding arrangement created a bailor-bailee relationship for mutual benefit, requiring the defendant to use ordinary care.
- Because the dog was delivered to the defendant in good condition and was not returned alive, a presumption of negligence arose against the defendant.
- The court held that the defendant did not rebut the presumption with competent proof showing due care or a satisfactory explanation for the dog’s death; liability was therefore established.
- On damages, the court rejected limiting recovery to nominal damages merely because the dog was a mixed breed and lacked a clear market price.
- The court measured damages by the dog’s actual value to the owner, taking account of the dog’s companionship and protective value as part of that valuation, while keeping the award within a property-damages framework.
- Judgment was entered for the plaintiff in the amount of $550, plus costs and disbursements.

## Legal Principles

- Paid boarding of an animal creates a mutual-benefit bailment; the bailee owes a duty of ordinary care.
- In New York bailment law, a bailee’s failure to return the bailed property creates a rebuttable presumption of negligence, shifting to the bailee the burden to show due care or an adequate non-negligent explanation.
- Bailment rules apply to animals in the same manner as to other forms of personal property.
- Damages for loss of personal property are commonly measured by market value, but where market value is absent or meaningless, damages may be based on the property’s actual value to the owner.
- For a companion dog with no established market value, “actual value to the owner” may include the dog’s services and functions in the owner’s life (including companionship and protection), so long as the award is not framed as separate recovery for emotional distress.

## Conclusion

The Civil Court held that the kennel/veterinary operator was liable for the boarded dog’s death because the dog was not returned alive and the defendant failed to rebut the resulting bailment presumption of negligence, and it awarded $550 (plus costs) based on the dog’s actual value to the owner rather than a nominal or market-value-only measure.


Brousseau v. Rosenthal, 110 Misc. 2d 1054, 443 N.Y.S.2d 285 (1980)