How will dogs–and cats–now be treated in a divorce action?
From the Texas Lawyer 11/14/11
For the Love of Avery: Dog Owners Can Recover Sentimental-Value Damages for Loss of Pet
November 14, 2011
In a decision sure to make canine lovers rejoice and veterinarians cringe, Fort Worth’s 2nd Court of Appeals has ruled that value can be attached to the love of a dog, overruling a 120-year-old case in which the Texas Supreme Court held that plaintiffs can only recover for the market value of their pets.
On Nov. 3, the 2nd Court ruled in Kathryn and Jeremy Medlen v. Carla Strickland that dog owners can recover damages from a defendant based on the “sentimental value” related to the loss of their pet – a decision the defendant’s lawyer argues could create new causes of action against vets.
According to the 2nd Court’s opinion, the allegations in Medlen are as follows: In 2009, Kathryn and Jeremy Medlen’s dog Avery escaped from their backyard and was picked up by animal control. Jeremy went to the animal shelter but did not have enough money to pay the fees. He was told he could return the next day, and a “hold for owner” tag was placed on Avery’s cage, notifying the shelter employees that Avery was not to be euthanized.
Despite the “hold for owner” tag, Avery was put down the next day. When the Medlens returned to the shelter to pick up Avery, they learned what had happened.
The Medlens sued Carla Strickland, an employee at the shelter, alleging her negligence proximately caused Avery’s death. They sued for “sentimental or intrinsic” damages because Avery had little or no market value and was irreplaceable.
Strickland objected to the Medlens’ claims for damages on the ground 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 appealed to the 2nd Court.
In its Nov. 3 decision, the 2nd Court took aim at the Texas Supreme Court’s 1891 decision inHeiligmann v. Rose . Heiligmann involved a plaintiff who successfully sued a defendant after his dog was poisoned. In that case the high court ruled that a damage award for the loss of a canine may be determined by “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 usefulness and services of the dogs, and that they were of special value to the owner.”
The 2nd Court pointed out that the Supreme Court has not addressed the value of a lost pet in the 120 years since it issued Heiligmann but has written several opinions in modern times that have “explicitly held that where personal property has little or no market value, and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value.”
“Because of 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 other personal property,” wrote Justice Lee Gabriel in an opinion joined by justices Sue Walker and Bill Meier. [ See the court’s opinion in Medlen .]
“Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of ‘man’s best friend’ should be protected,” Gabriel wrote. “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.” The 2nd Court reversed the trial court and remanded the case.
See The Texas Lawyer for their full Article.