Agazio et al v. Commerce City, Colorado et al

Filing 62

ADVISORY RULINGS re: 58 , 59 , 60 and 61 . A trial preparation conference will be scheduled. The parties shall submit their proposed jury instructions and suggested voir dire questions three business days before the conference, by Judge Richard P. Matsch on 6/13/2012. (rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 10-cv-01895-RPM
FRANK AGAZIO,
JULIA AGAZIO,
MARIA AGAZIO, a minor, by and through her next friends Frank and Julia Agazio,
Plaintiffs,
v.
COMMERCE CITY POLICE OFFICER SUZANNE BARBER (CC2746), in her individual
capacity,
Defendant.
_____________________________________________________________________
ADVISORY RULINGS
_____________________________________________________________________
The liability issue to be determined at the trial to begin on July 9, 2012, is
whether Officer Suzanne Barber violated the plaintiffs’ property interest protected by the
Fourth Amendment when she shot their family dog “Zoey” without reasonable cause to
believe that she was in imminent danger from the dog’s attack. At the pre-trial
conference on April 20, 2012, counsel were asked to submit briefs as to whether Maria
Agazio, a minor, was a proper plaintiff and as to the measure of damages. While these
questions would normally be answered at trial, it will help the parties in trial preparation
for the Court to advise them now of the Court’s views after reviewing the authorities
cited in the briefs and the anticipated evidence identified in the summary judgment
proceedings.
The Fourth Amendment protects a person’s possessory interest in property.
While Maria Agazio’s minority may preclude her from claiming ownership of the dog,

she does have a protectable interest in the possession of it. All three of the plaintiffs
share such an interest in a family dog.
The deprivation of the use and benefit of personal property gives rise to a claim
for damages measured by the value of the property. When, as here, there is no market
value, the plaintiffs may recover the dog’s intrinsic value to them. There is no clear
Colorado precedent for determining damages for the loss of a family dog. The plaintiffs
seek thousands of dollars for emotional distress, pain and suffering and loss of
companionship. Unless the plaintiffs can prove that the defendant acted intentionally
and with malice directed toward them, personally, they may not recover such damages.
The intrinsic value of the dog does not include their affection for and attachment
to Zoey. Value means worth and the worth of a dog to a family may be measured by
the cost of acquisition and maintenance of the animal. Those costs are analogous to
the loss of investment in other types of personal property for which there is no market.
These rulings are given as a guide for trial preparation. A trial preparation
conference will assist counsel and the Court in promoting trial efficiency. Accordingly, it
is
ORDERED, that a trial preparation conference will be scheduled. The parties
shall submit their proposed jury instructions and suggested voir dire questions three
business days before the conference.
DATED: June 13th, 2012
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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