In torts class, we often discuss Hegelian and other theories on understanding the value of objects. It is often the case that our clients come to us with the loss of property that has a higher value to them than is recognized by the law. This creates a difficult disconnect in seeking to make injured parties whole. The greatest example of this disconnect is the loss of pets. Pets are treated as a form of chattel and any significant damages are usually found not in the value of the pet but in the emotional damages for the human. This issue resulted in a significant decision in Texas Supreme Court last week when it found that damages for the loss of Avery could not include his sentimental value to the owner. In other words, Avery was a toaster. More friendly, more loyal, but a toaster when it comes to torts.
At issue in the case was the 122-year-old precedent classifying pets as property for tort-law purposes. The plaintiffs were asking the court to embrace a new common-law loss-of-companionship claim allowing noneconomic damages for emotional attachment.
The tragedy in the case resulted from a lack of ready cash by a family and clear negligence by an animal shelter. In June 2009, Avery, the pet of Kathryn and Jeremy Medlen, escaped the family’s backyard and was picked up by Fort Worth animal control. The father went to the shelter and claimed Avery. However, he lacked the money to pay for the fees imposed by the shelter. Accordingly, the shelter hung a “hold for owner” tag on Avery’s cage to indicated that he was going to be picked up and should not be euthanized. However, employee Carla Strickland negligently euthanized Avery.
The Texas court of appeals handed down a victory for pet owners in holding that pets should be given the same protection as afforded to some forms of personal property in seeking sentimental damages. In reinstating the lawsuit the court of appeals ruled that, given “the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property.” It held that “Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens’ action against Strickland.”
This put the shelter and its worker in the position of fighting a ruling that allowed pets to be recognized for closer to their true value as living creatures.
The Court begins its opinion with “Texans love their dogs. Throughout the Lone Star State, canine companions are treated—and treasured—not as mere personal property but as beloved friends and confidants, even family members.” It is the type of windup that litigators hate because you can almost hear the whistle of the train coming down the track.
The court ruled:
Loss of companionship, the gravamen of the Medlens’ claim, is fundamentally a form of personal-injury damage, not property damage. It is a component of loss of consortium, including the loss of “love, affection, protection, emotional support, services, companionship, care, and society.” Loss-of-consortium damages are available only for a few especially close family relationships, and to allow them in lost pet cases would be inconsistent with these limitations. . .
The Medlens find it odd that Texas law would permit sentimental damages for loss of an heirloom but not an Airedale. Strickland would find it odd if Texas law permitted damages for loss of a Saint Bernard but not for a brother Bernard. . . .
The “true rule” in Texas remains this: Where a dog’s market value is unascertainable, the correct damages measure is the dog’s “special or pecuniary value” (that is, its actual value)—the economic value derived from its “usefulness and services,” not value drawn from companionship or other non-commercial considerations.
Accordingly, the court rejects the “subjective” feelings of owners as a basis for liability and continues the precedent from 1891 which classified dogs as personal property. Justice Willett writes “It is an inconvenient, yet inescapable, truth: Tort law cannot remedy every wrong.”
The problem with the ruling is that it achieves uniformity by extinguishing what is undeniably the true value of a loss in these cases. There are a variety of damages that turn on highly individualized responses to loss, including emotional distress claims. By not valuing pets at their true value, the torts system loses critical aspects of deterrence and efficiency. By forcing negligent parties to bear the true costs of their actions, the torts systems encourages the assumption of preventive measures. Companies can either internalize such costs or take measure of cost avoidance in preventive measures. The long-standing rule also fails on the level of pure normative theory in making whole a victim. Finally, the ruling treats pets as legal interchangeable. The value of a dead Beagle is simply another Beagle –ignoring the specific connection and attachment to the dog. Such a ruling would be viewed as absurd with the loss of human family members, but pets continue to be treated as an object with a fixed market value.
What do you think?
The case is Strickland v. Medlen (NO. 12-0047).
Here is the opinion: 120047
The phrase “tort law cannot remedy every wrong” is judicial legalese for “we don’t want to go there yet.” It is a variation of the “floodgates” argument, the notion that recognizing a new claim will burden the court system with additional cases. The beauty of the common law is its ability to evolve, but evolution is a slow process. That is both healthy and frustrating.
The law in Florida on this issue remains unsettled. Damages for emotional distress are available when the death of a pet results from an intentional and malicious act, or from negligence of such an outrageous degree that it reflects reckless disregard. But courts are reluctant to recognize those damages based on simple negligence, and pet owners also face the restrictions of the impact rule.
But the overall trend is definitely toward recognition of the losses at issue in this case. Texas will eventually come around.
Stupid decision supported by faulty reasoning. Allow a jury to decide on appropriate damages on a case-by-case basis and let them hear evidence for plaintiffs to attempt to establish the basis for their loss and just compensation. A judge can always adjust the damages later if a jury blows it. But, of course, defendants — mostly businesses — hate torts because they don’t want to be responsible for anything.
Texas will have to change it’s laws.
Thanks for sharing this Barkindog.
Ya got the dogpac stirred up on this one. WordPress rejected several comments because of the foul language.
On the Eighth Day God created Dog– whose purpose in life is to watch over mankind.
When those judges die and go up to the Pearly Gates for the interview to see which gate they go through next it will surely be a Wednesday. That is the day that Saint Peter plays golf and he has a stand-in making judgments on judgment day. Quite often he puts a dog up on the bench on Wednesday. Can you imagine the looks on these faces when they get the verdict and end up in Morocco as a dog, hanging by their rear feet in the market place for sale for human consumption. That my fine feathered judge is neither Heaven nor Limbo.
George Vest was the lawyer in the Missouri courthouse who spoke Eulogy For The Dog. Google it.
We need to go to the International Court of Human Rights on this one. There ain’t no justice in a state that says ain’t.
That is why all of my ex wives live in Texas. They run for the most inhumane place in the lower 48. This is the state that violates the Sixth Commandment in the name of The People of The State of Texas. Give it back to Mexico. They probably would reject the deal.
From the Great State of Missouri. Eulogy To The Dog:
Gentlemen of the jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog.
Gentlemen of the jury: A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.
If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.
This is a decision embracing the past and, as such, it will be discredited at some time in the future, when jurisprudence catches up with common morality. These judges are riddled with an obstinate attachment to the status quo. They don’t question their blind adherence to yesterday’s mistakes. They don’t choose to make a morally correct decision because it requires an act of courage residing ‘outside-the-box’. Sometimes, when it feels right in the gut and in the heart, it may likely turn out to be the necessary result of a long path toward awareness and moral correctness. Some people, however, are too tired and fearful to go there.
Darren,
I agree with Frankly that these kind of valuations are done all the time by a court. I think pets are more than mere chattel and should be dealt with accordingly.
Well said Mespo. It is amazing to see what old and out of touch principles some “experts” can stick with.
“Mahatma Gandhi said, “the greatness of a nation and its moral progress can be judged by the way it treats its animals.”
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I like to judge a nation by what it erects its statutes to:
http://www.inetours.com/DC/photos/FDR-Fala.html
“At issue in the case was the 122-year-old precedent classifying pets as property for tort-law purposes.”
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We had a 256 year-old-precedent of classifying certain persons as chattel for constitutional law purposes. We evolved from that ridiculous position. Funny how simple truths are often-time lost on what some consider brilliant legal minds.
We may be a nation of laws and not of men, but the laws have to fairly relate to the men and women they govern. In our love of platitudes, we forget that a lot of times, too.
An official of the National District Attorneys Association wrote:
(NDAA).
Worthless is as worthless does.
Pardon my ignorance of the minutia here but isn’t this sort of arbitrary value placed on people in torts all the time? You ran down my father in a drunken stupor so the court decides dear ol dad was worth some made up number of dollars to me.
I have gotten the impression that there are even some undocumented ‘norms’ about what these values are.
I see the inconsistency as mentioned above yet I look at making pets a higher level of value based upon emotional attachment as setting up the courts for rather arbitrary decisions on damages.
A car for example can have straight value, market value and value to a business. Values based upon intangible measures such as companionship are whatever someone “thinks” they should be.
I don’t believe a situation is equitable when someone can file a claim in a court that some object was “the most important thing in my life.” and expects an award of millions of dollars for its loss just because “they said so” without any account of proof. If courts make awards regularly for these types of value the spillover costs can be great. An example is where now homeowners or umbrella policies will have to have actuaries account for losses that could be faced by someone causing the death of a pet which can drive up premiums.
Justice in Texas is available only for corporations, and the very wealthy. If you are an ordinary person you are screwed. In fact, if a family member is run down and killed by a relative of a police officer, and they know who the guilty party is, they will not prosecute. Where I live we had a young mother killed in a hit and run at night, they found the damaged truck and drunk owner at his home, and no charges were filed.
Video of the decision http://texassupremecourt.mediasite.com/mediasite/Play/f050bad82df940968ce93cc152db8d971d
All you have to do to know which way the Texas Supreme Court will rule is ask yourself WWBW–what would business want? The all-Republican Texas Supreme Court is bought and paid for with campaign contributions and they serve their masters well.
Same court that Bush packed and his fool mate….