Texas high court to weigh "sentimental value" damages for loss of dog

John Council

Texas Lawyer

01-07-2013

The Texas Supreme Court will hear arguments on Jan. 10 in a case that has attracted national attention for the legal and emotional question it presents: Should the state's civil justice system put a price tag on the love of a dog?

That question has been on the minds of various business, government and advocacy groups ever since Fort Worth's 2nd Court of Appeals decided Kathryn and Jeremy Medlen v. Carla Strickland on Nov. 3, 2011. In that case, the 2nd Court ruled that dog owners can recover damages from a defendant based on the "sentimental value" related to the loss of their pet.

Now that the defendant in Medlen has taken that question to the state's highest civil court, more than a dozen amici groups representing everyone from dog owners to the American Kennel Club have weighed in on the issue. Several of the seven amici briefs sent to the court touch on familiar Texas tort-reform arguments, including, for example, that if the high court allows Medlen to stand, the decision will spark similar litigation and ultimately drive up the cost of pet care due to higher insurance premiums for veterinarians.

But other amici argue that Medlen will do no such thing and merely allows plaintiffs to recover for the loss of property — in this case a dog — something Texas case law has allowed since 1891.

The background to Medlen, according to the 2nd Court's decision, is as follows: Kathryn and Jeremy Medlen sued Carla Strickland, an employee at the city of Fort Worth animal shelter, alleging she negligently proximately caused the death of their family's dog, Avery, by mistakenly euthanizing the dog after he escaped from their back yard. The Medlens sued for "sentimental or intrinsic" damages because Avery had little or no market value and was irreplaceable.

Strickland denied the allegation and objected to the Medlens' claims for damages on the grounds that such damages are not recoverable for the death of a dog. The trial court dismissed the Medlens' suit for failure to state a claim for damages recognized by law — a ruling the Medlens successfully appealed to the 2nd Court [See "For the Love of Avery" Texas Lawyer, Nov. 14, 2011, page 1.]

The history and emotion behind the Medlen decision, as well as the attention it is receiving, is not lost on John Cayce, a former 2nd Court chief justice who will argue the case at the high court on behalf of Strickland.

"For more than 120 years, Texas law has recognized the 'special value' dogs have to their owners and has afforded greater compensation to aggrieved pet owners who have lost their dogs as a result of negligence than the majority of states in the nation," says Cayce, a partner in Fort Worth's Kelly Hart & Hallman.

"The Medlen case is not about whether dogs have special or sentimental value — we agree that they do — or whether existing Texas law provides fair compensation to owners like the Medlens who have lost their dog to negligence — it clearly does," Cayce says. "The question the Texas Supreme Court has been asked to decide is whether existing law should be judicially expanded to offer much broader compensation to dog owners in the form of emotional damages than is available for the loss of a friend or relative?"

And that argument just about sums up what plaintiff attorney Randy Turner faces in trying to preserve the 2nd Court's ruling on behalf of his clients, the Medlens: the contentionthat the decision is a broad expansion of the law, comparable to allowing a plaintiff to recover for the mental anguish for the loss of a human family member, he says.

"The other side is really trying to confuse the argument by claiming that we're seeking mental anguish damages for a dog, and we're not. And their argument is, well, under Texas law a person cannot recover mental anguish damages when that person's sibling or parent or grandchild is killed. So why should a pet owner be able to recover sentimental value when a dog is killed? And that is a disingenuous argument," says Turner, a partner in the Bedford office of Bailey & Galyen.

The Medlen case, Turner says, is simply about the sentimental value of property — not people.

"First of all, you don't own your sibling or your grandparent. And secondly, we're not seeking mental anguish damages. That's a damage that's recoverable in tort law for various tort cases. We're not talking about mental anguish. We're talking about the value of property," he says.

Policy Considerations

According to an amicus brief filed by numerous pet-industry groups, including the American Kennel Club and the American Veterinary Medical Association, affirming Medlen and allowing dog owners to recover for "emotion-based" damages would contribute to rising veterinary bills and make it more difficult for pets to receive medical care.

"If you care about the welfare and health of animals, the most important thing is for them to have access to quality and affordable care. And if we inject emotion-based damages into the pet-care community the way it's been done in the human health-care system, the losers will be the pets themselves, who will suffer by not getting needed care or potentially being euthanized when their owners can no longer afford the cost of treatment," says Phil Goldberg, a partner in the Washington D.C. office of Shook Hardy & Bacon, who filed the brief on behalf of pet-industry groups.

"Clearly, the law in Texas has been moving toward having a more restrained system. The change being sought here is being sought by the plaintiffs. They are looking to change liability law that hasn't existed anywhere in the country and has never existed in Texas," Goldberg says.

An amicus brief filed by the Texas Municipal League, Texas City Attorneys Association and the city of Arlington includesa graphic picture of an Arlington boy's mangled arm after he was bitten by a pit bull and treated at a hospital.

"It came pretty close to biting the child's arm off,"says Robert Fugate, an assistant Arlington city attorney who filed the brief on behalf of the municipal groups. He says including photo was necessary to make a point: "The Fort Worth Court of Appeals opinion focused very heavily on the pets. Dogs are truly man and woman's best friend. But it didn't seem to consider other dogs and what our police officers and our animal services people have to deal with."

Fugate says his primary problem with Medlen is allowing plaintiffs to recover "emotional damages" from municipal defendants.

"When you allow for emotional damages, you're creating an almost unlimited standard that varies from juror to juror and jury to jury," he says.

South Texas College of Law professor Fran Ortiz, who filed a brief in the case on behalf of herself and 10 other Texas law school professors who teach tort and property law, says she took emotion out the analysis when articulating the reasons why the high court should uphold the Medlen decision.

The professors' brief concludes that the decision in Medlen is in keeping with 120 years of property law, dating back to the Texas Supreme Court's 1891 decision in Heiligmann v. Rose. In Heiligmann, the court determined that a dog owner could recover for the loss of his pet "either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog."

"I just set out the rule," Ortiz says, explaining the modern implications of Heiligmann in her amici brief. "If there is market value, then market value applies. And if there is not market value, it's going to be use value or sentimental value. And in either case, the plaintiff will have to prove their damages."

"When anyone makes the argument [that the Medlen decision will] put them out of business, that's assuming that [plaintiffs] can prove the damage in the first place," Ortiz says. And it is very difficult for a plaintiff to demonstrate the sentimental damages caused by the loss of a pet in a state court, she says.

"It may be easier to claim value for market value for an animal that has one than an animal that has sentimental value," says Ortiz, who is also director of South Texas' Animal Law Clinic.

Zandra Anderson, a Houston solo who practices animal law, filed an amicus brief on behalf of the Texas Dog Commission, a group that advocates the rights of pets and their owners. She also argues that there's nothing new to allowing dog owners to recover for the sentimental value of dogs in court. What has changed since the Heiligmann decision is how people feel about their canine companions, Anderson says.

"Welcome to my world," says Anderson, who represents pet owners in everything from property to animal abuse disputes. "It's like family law on steroids. You can't imagine the visceral reactions people have to dogs, because they are sometimes the nicest member of the family. They always welcome you; they're never mad at you. People fight for these animals like you wouldn't believe. It's emotions off the charts."

And it's very hard to separate emotion from the Medlen case, Anderson says.

"When it comes to dogs, there is no red or blue. It's not an issue of Democrats, Republicans, conservatives or liberals," Anderson says. "All people of all political persuasions all love dogs."