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Fackler v. Genetzky6/18/1999
Fackler v. Genetzky, S-98-457
Fackler v. Genetzky, 257 Neb. 130
Appeal from the District Court for Dakota County: Mark J. Fuhrman, Judge. Reversed and remanded for further proceedings.
NATURE OF CASE
Howard S. Fackler and Patricia A. Fackler appeal from a summary judgment entered against them by the district court in their professional negligence action against Roger M. Genetzky, a veterinarian. For the reasons stated herein, we reverse the judgment and remand the cause for further proceedings.
FACTUAL BACKGROUND
Pleadings
The Facklers filed a petition in the district court on February 12, 1997, against Genetzky and the Atokad racetrack, located in South Sioux City, Nebraska. Atokad subsequently settled with the Facklers and was dismissed as a defendant. The petition generally alleged that Genetzky and Atokad were responsible for the deaths of two racehorses owned by the Facklers. Specifically, the Facklers claimed five "causes of action" as follows:
(1) The "Indian Magic" claim. The Facklers allege that Genetzky and Atokad are responsible for the death of a 5-year-old gelding named "Indian Magic." The theory advanced by the Facklers is that Genetzky gave Indian Magic injections of Lasix and "Bute," two commonly used equine medications, on June 17, 1995. Indian Magic died during the night of June 19-20. The Facklers allege that an autopsy performed by the Veterinary Diagnostic Center of the University of Nebraska concluded that the death was caused by an infection resulting from the use of nonsterile procedures during the administration of an injection given to the horse by Genetzky, making him the cause of Indian Magic's death. The Facklers claim that Indian Magic's value, based upon his initial cost and expected earnings for the next 15 years, was $279,710.
(2) The second "cause of action" related only to Atokad and has been dismissed pursuant to the settlement.
(3) The "Patricia Gold" claim. The Facklers allege that Genetzky and Atokad are responsible for the death of a 3-year-old mare named "Patricia Gold." Patricia Gold's value is alleged to be at least $850,000, based upon her initial cost, future earning capacity, and the projected birth of nine colts, expected to be worth at least $50,000 each. The Facklers allege that they asked Genetzky to administer a lubricating injection to Patricia Gold's knee. On June 4, 1995, Genetzky administered a substance called "Vetalog," which the Facklers allege is not a lubricant, but instead acts to freeze a joint. When the Facklers ran Patricia Gold, her knee shattered, and she was put down.
(4) The "emotional distress" claim. The Facklers allege that the deaths of Indian Magic and Patricia Gold were caused by Genetzky and Atokad and resulted in "much emotional distress" for the Fackler family. This "cause of action" consists entirely of reiterations of how much the Facklers cared for the horses. The Facklers also claim that the horses, particularly Indian Magic, were very close to the Facklers' son. The Facklers' son, however, is not a party to the action.
(5) The "fraudulent billing" claim. The Facklers allege that Genetzky billed the Facklers for services which were not performed and that as a result, Genetzky collected $252 from the Facklers to which he was not entitled.
Summary Judgment Orders
On April 21, 1997, Genetzky moved for partial summary judgment on the emotional distress claim. On July 17, the district court granted partial summary judgment in favor of Genetzky as to the emotional distress claim, based on its determination that Nebraska law does not support a clai
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