Repin sues Washington State University (WSU) and WSU
veterinarian, Dr. Margaret Cohn-Urbach, for conduct arising
from the euthanasia of his beloved Alaskan Malamute, Kaisa.
Repin alleges that Cohn-Urbach, with gross negligence,
performed the euthanasia and thereby caused Kaisa pain and
prolonged her death. Cohn-Urbach also purportedly failed to
fully inform him of the repercussions of the method of
euthanasia. Repin pleads causes of action in breach of
contract, reckless breach of contract, professional
negligence, lack of informed consent/negligent
misrepresentation by omission, intentional or reckless
infliction of emotional distress, and conversion/trespass to
chattels or trespass on the case. WSU and Cohn-Urbach moved
for summary judgment to dismiss all claims. The trial court
dismissed the lack of informed consent/negligent
misrepresentation by omission, intentional and/or reckless
infliction of emotional distress, conversion, and trespass
claims. The trial court also ruled, as a matter of law, that
Repin could not recover emotional distress damages for a
reckless breach of contract. We affirm all of the trial
the trial court granted WSU and Dr. Margaret Cohn-Urbach
(collectively WSU) summary judgment in part, we recount the
facts in a light favorable to Robert Repin. This factual
statement occasionally, however, adds WSU's version of
Robert Repin is a single man, with no children, who works as
a gold prospector. In 2001, Repin adopted Kaisa, an Alaskan
Malamute puppy, who his niece rescued. Kaisa grew to become
an indispensable part of Repin's reclusive life.
September 2012, Kaisa fell ill. After a grim night, Robert
Repin took Kaisa to an emergency veterinarian. The
veterinarian diagnosed Kaisa with cancer and prescribed
medication for her. Repin then transported Kaisa to
Kaisa's regular veterinarian, who recommended a visit to
the WSU Veterinary Teaching Hospital.
September 26, Robert Repin drove Kaisa from Cle Elum to
Pullman and presented Kaisa to WSU's Veterinary Teaching
Hospital. Jasmine Feist and another fourth-year veterinary
student registered Kaisa with the hospital. Feist placed
Kaisa in the intensive care unit and inserted a catheter in
Kaisa's left front leg. Hours later, defendant Dr.
Margaret Cohn-Urbach, an intern at the hospital, examined
Kaisa. During this time, Repin remained with Kaisa.
radiographs, Veterinary Teaching Hospital clinicians
diagnosed Kaisa with metastatic cancer. Staff predicted Kaisa
would live only several months. Robert Repin insisted on a
consultation with an expert. Repin spoke, on the phone, with
Dr. Kevin Choy, an oncologist, who agreed with the diagnosis
of metastatic cancer. WSU veterinarians recommended
reflection, Robert Repin directed the Veterinary Teaching
Hospital to euthanize Kaisa. Repin viewed the WSU hospital to
be the best at veterinary medicine. He did not wish Kaisa to
undergo weeks of agony.
Repin requested that he sign paperwork before the euthanasia
because he did not trust his mental state after the
procedure. He signed a Washington State University Veterinary
Teaching Hospital consent for euthanasia form. The form read,
in relevant part:
I, the undersigned, do hereby certify that I am the owner (or
duly authorized agent of the owner) of the animal described
above; that I hereby give the clinicians of the Washington
State University Veterinary Teaching Hospital full and
complete authority to humanely destroy the aforementioned
animal. . . .
I hereby release the Washington State University Veterinary
Teaching Hospital, their agents, and representatives, from
any and all liability for said animal.
Papers (CP) at 126. Repin denies seeing the release language
because of his distraught state of mind. No hospital employee
discussed the language with him. Repin checked the form's
box directing Kaisa's remains be returned to him rather
than studied at the hospital. Repin paid $260.56 for the
Repin and a Veterinary Teaching Hospital attendant walked
Kaisa from the intensive care unit to the euthanasia room,
euphemistically labeled the quiet room. Dr. Margaret
Cohn-Urbach then described the procedure to Repin.
Cohn-Urbach advised that Kaisa would be administered a mild
sedative to relax her and thereafter dispensed Euthasol, a
drug that would stop the Malamute's heart and allow a
peaceful death. According to Dr. Cohn-Urbach, she informed
Robert Repin that, as Kaisa passes, she may have deep gasps,
tremors, and other adverse effects. Repin claims Cohn-Urbach
only warned that Kaisa might take a deep breath and exhibit a
slight leg twitch.
Repin laid on the quiet room floor with Kaisa. Dr. Margaret
Cohn-Urbach told Robert Repin the hospital procedure would
commence. According to Margaret Cohn-Urbach and Jasmine
Feist, Feist performed the euthanasia, while Cohn-Urbach
supervised. Repin contends that Cohn-Urbach performed the
to Robert Repin, he heard Jasmine Feist exclaim: "[O]h,
look, Kaisa has chewed off the end of her catheter, should I
go get another one?" CP at 62. Margaret Cohn-Urbach
responded: "[N]o. I will show you how to still make this
one work." CP at 62. Repin did not look at the catheter
and never observed Kaisa chewing the catheter. Feist and
Cohn-Urbach deny any such conversation or Kaisa chewing the
Repin contends that no hospital staff member flushed the
catheter to ensure patency, a medical term for open or
unobstructed. Dr. Margaret Cohn-Urbach and Jasmine Feist both
declare that one of them flushed 20 milliliters (ml) of
saline solution through the catheter. Each avers that the
saline flushed unimpeded and that she lacked any concern
slept on the quiet room floor when the veterinarians began
the euthanasia. After the flushing, Either Dr. Margaret
Cohn-Urbach or Jasmine Feist injected 1.1 ml of Acepromazine
into the catheter. Five to ten minutes later, either
Cohn-Urbach or Feist started the second injection. Repin
turned from observing the injection. Repin describes the
[Kaisa] woke up screaming. She was on her feet panicking,
screaming in agony. I said, What the fuck is going on here? I
said, this can't fucking be happening. I had to wrestle
[Kaisa] back to the floor. I had to hold her down and listen
to her scream. [Dr. Cohn-Urbach] and [Feist] had backed up
against the wall. They didn't know what the fuck to do.
Jasmine said, My God, it's not working. What should we
do, she says? My dog didn't know what the fuck was going
on. She would have tore those girls apart if I let go of her.
All she knew was she was in fucking pain and she wanted to
get out of there and I had to hold her down.. . . [Feist]
said somewhere, What do we do? Should I go get another
[Dr. Cohn-Urbach] says, I'm out of medication. I said,
This can't be fucking happening.
CP at 67-68.
to Robert Repin, Dr. Margaret Cohn-Urbach left the quiet room
and retrieved more Euthasol. Repin believes five to seven
minutes passed between the two injections of Euthasol, during
which time Kaisa constantly struggled on her two front feet,
while Repin toiled to restrain her. Kaisa's agony never
ceased. On Cohn-Urbach's return, Repin rolled Kaisa on
her back to afford Cohn-Urbach a clear shot at her right
forelimb. Jasmine Feist and Repin restrained Kaisa as
Cohn-Urbach injected Euthasol into the right forelimb.
Fifteen seconds later, Kaisa expired.
to Jasmine Feist, Kaisa lifted her head and upper torso and
uttered one loud howl at the end of the first Euthasol
injection. Kaisa did not scream in agony. Dr. Margaret
Cohn-Urbach leaped to her feet and exited the quiet room.
Robert Repin grabbed Kaisa around the neck and held her.
Kaisa lay down and emitted large breaths. Kaisa died after
she slouched. Feist estimates Dr. Cohn-Urbach left the room
for up to two minutes.
to Dr. Margaret Cohn-Urbach, Kaisa uttered three howls and
gazed at her left leg, which Jasmine Feist handled. Kaisa did
not act violently or thrash. As Kaisa reacted, Cohn-Urbach
observed Robert Repin's unhappiness. Dr. Cohn-Urbach
decided to hurry the euthanasia. She left the quiet room for
more Euthasol and returned within two minutes. Cohn-Urbach
injected the Euthasol directly into the cephalic vein in
Kaisa's right leg. As Dr. Cohn-Urbach administered the
second dose of Euthasol, Kaisa howled again. After the second
injection, Kaisa died.
Kaisa expired, Dr. Margaret Cohn-Urbach offered Robert Repin
a trash bag for Kaisa's remains, a suggestion that
offended Repin. Repin removed Kaisa on a gurney from the
Veterinary Teaching Hospital to his car, while colorfully
Margaret Cohn-Urbach wrote in her clinical notes concerning
During the euthanasia procedure, Kaisa showed a reaction to
the injection of 20ml of Euthasol through an 18G catheter in
the left cephalic vein. The catheter was tested prior to
injection of the Euthasol and we are confident that it
flushed fine. Kaisa only reacted to the injection when the
final 1ml was given, and showed no response while the first
19ml Euthasol and 1.1ml Acepromazine were given. As Kaisa was
reacting to the injection, we used the right cephalic vein to
inject and this was administered smoothly without delay.
Kaisa again did show a reaction at the end of the injection
of the 15ml Euthasol in the right cephalic vein, even though
this was confirmed as definitely being in the vein. The left
forelimb did not appear swollen after injection, suggesting
that Kaisa may have reacted poorly to the euthanasia due to
underlying intracranial and other disease. The owner
expressed anger at the situation.
CP at 212-13.
Harmon Rogers, a colleague of Dr. Margaret Cohn-Urbach,
reported to a supervisor:
At the time of euthanasia the IV catheter looked
questionable. Dr. Cohn-Urbach tested it several times and
confirmed patency by flushing 20 mis of fluid through it. The
euthanasia did not go smoothly and the dog cried out while
being euthanized. That greatly upset the owner. It is
possible that the euthanasia solution was perivascular. Dr.
Cohn accessed another vein and completed the euthanasia. She
was very apologetic to the owner about the circumstances. I
wonder if her apologies increased the owner's dismay and
made him believe she was more responsible for the difficulty
than might be the case. He left very upset and swearing many
times about how she had f d everything up.
CP at 131. "Perivascular" means tissue surrounding
a blood vessel.
declaration, Robert Repin affirmed that Dr. Margaret
Cohn-Urbach never informed him of the risks of proceeding
with a damaged catheter, the use of Acepromazine alone or at
an inappropriate dosage, a fourth-year student injecting
Euthasol, a high dose of Euthasol, or Kaisa responding to the
procedure in distress. Had Cohn-Urbach informed Repin of the
risks, he would not have consented to the procedure as
performed at the Veterinary Teaching Hospital. He would have
instead demanded a different catheter, a proper first
medication, a dilution to the Euthasol, and all injections
being performed by a licensed veterinarian.
Repin reports severe emotional distress resulting from the
painful euthanasia of Kaisa. Repin now lacks patience, easily
angers, suffers headaches, and drinks alcohol to sleep.
Repin hired Dr. Victoria Peterson, a licensed Washington
veterinarian, as an expert witness. In a declaration opposing
WSU's summary judgment motion, Peterson declared that
veterinarians act in a fiduciary capacity of trust and
confidence. She averred that she knows the standard of care
of small animal veterinarians in the State of Washington.
Peterson opined that:
Defendant Cohn-Urbach committed veterinary medical
malpractice and breached the contract with Mr. Repin,
proximately causing him economic and noneconomic damages.
Indeed I find that her acts and omissions were cumulatively
reckless and grossly negligent. In short, one does not
euthanize a dog by injecting caustic solution outside the
vein, causing her to experience tremendous fear and suffer
agonizing pain for an extended duration while she is
forcibly, physically restrained by the owner until the
veterinarian can leave the room to obtain more euthanasia
solution and return to administer it properly. That is not
euthanasia. It is torturous to both the animal and her owner.
CP at 236.
Victoria Peterson faulted Dr. Margaret Cohn-Urbach for
administering Acepromazine precedent to Euthasol, because the
former acts as a tranquilizer, rather than a sedative. A
tranquilizer does not alter the dog's perception to the
situation, but rather limits her ability to respond.
Acepromazine may render the animal more excited,
unpredictable, and dangerous. The small dose administered to
Kaisa would not have sedated Kaisa or relieved her of any
pain. According to Peterson, Margaret Cohn-Urbach was also
grossly negligent for administering a large dose of Euthasol
because of the age of Kaisa. The drug increased the risk of a
geriatric dog's vein bursting such that the caustic
solution travels perivascular. Euthanasia requires only 9 ml
of Euthasol, but Cohn-Urbach's two injections amounted to
34 ml. Since Kaisa was an Arctic breed, Dr. Cohn-Urbach
should have warned Robert Repin that Kaisa would whine and
cry upon being euthanized. According to Peterson,
Cohn-Urbach's treatment was not humane but led to minutes
of conscious pain.
of Robert Repin's experts, Dr. Bruce Goldberger, a
forensic toxicologist, examined Kaisa's exhumed leg after
the animal's death. Goldberger determined that the first
injection of Euthasol entered Kaisa's perivascular
region, a conclusion consistent with Victoria Peterson's
conclusion that Kaisa suffered from the perivascular
Repin sues the State of Washington, WSU, and Margaret
Cohn-Urbach. We assume that WSU and the State of Washington
are the same legal entity. In the complaint, Repin asserts
six claims: breach of contract, reckless breach of contract,
professional negligence, lack of informed consent/negligent
misrepresentation by omission, intentional and/or reckless
infliction of emotional distress, conversion/trespass to
chattels or trespass on the case. Repin requests
reimbursement of amounts billed by WSU for services provided
and his emotional distress and loss of enjoyment of life. In
seeking emotional distress damages, Repin alleges that the
"zone of danger" doctrine applies. CP at 7. We do
not read the complaint as seeking any damages for pain
suffered by Kaisa.
trial court granted, in part, WSU's motion for summary
judgment. The trial court dismissed reckless breach of
contract, lack of informed consent/negligent
misrepresentation by omission, outrage, and
conversion/trespass to chattels. The trial court also
dismissed any claim for emotional distress damages no matter
the cause of action pled. We granted discretionary review of
the trial court's summary judgment rulings.
Breach of Contract and Noneconomic Damages
no case that recognizes a cause of action for reckless breach
of contract distinct from a cause of action for breach of
contract. We explore, however, whether the law may provide
recovery for emotional distress or other noneconomic damages
for a breach of contract under some circumstances, including
egregious conduct of the breaching party. Robert Repin may
allege reckless breach of contract in order to recover
noneconomic damages. Repin may also allege reckless breach of
contract in order to avoid the release contained in the
euthanasia contract. WSU does not assert the defense of the
release in support of its summary judgment motion.
trial court did not dismiss Robert Repin's breach of
contract claim. Therefore, we do not address whether Repin
maintains a viable claim in contract. We assume that Repin
does not seek recovery for the value of Kaisa, since
regardless of any professional negligence, Kaisa faced death.
We address, however, whether Repin may recover noneconomic
damages for the alleged breach of contract.
Repin contends that noneconomic damages should be recoverable
when a veterinarian breaches, regardless of reckless conduct,
a euthanasia contract because of the distressful nature of
euthanasia. He emphasizes, however, that more reason exists
to allow emotional distress damages on a reckless breach of a
euthanasia contract. WSU responds that Washington courts have
not recognized recovery of emotional distress damages for
breach of a contract, even where emotional distress is
general, parties cannot recover noneconomic, emotional
disturbance damages for breach of contract. RESTATEMENT
(SECOND) OF CONTRACTS § 353 (Am. Law Inst. 1981);
Gaglidari v. Denny's Restaurants, Inc., 117
Wn.2d 426, 440-48, 815 P.2d 1362 (1991). An exception arises
if "the contract or the breach is of such a kind that
serious emotional disturbance was a particularly likely
result." RESTATEMENT (SECOND) OF CONTRACTS § 353.
The comments explore this exception:
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, ...