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for the Texas Court of Appeals. Just heard this on the nightly news so I googled it. http://www.courthousenews.com/2011/11/15/41444.htm
FORT WORTH (CN) - A Texas appeals court ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court. The closely reasoned opinion cites more than a century of Texas courts rulings on dogs.
The Court of Appeals for the 2nd District of Texas reinstated Kathryn and Jeremy Medlen's negligence lawsuit against Carla Strickland, a City of Fort Worth animal shelter employee.
According to court filings, their 8-year-old Labrador mix, Avery, escaped from the Medlens' back yard and was picked up by the city's animal control.
Jeremy Medlen went to the shelter to bail out Avery, but did not have enough cash in hand to pay the fees. He was told he could return the next day and that a hold-for-owner tag would be placed on Avery's cage, to prevent him from being euthanized. But Avery was killed the next day before the Medlens could pick him up.
The Medlens sued for "sentimental or intrinsic" damages.
Strickland objected, saying such damages are not recoverable for the death of a dog.
The First Tarrant County Court at Law dismissed for failure to state a claim for damages recognized by law. The court said the Medlens could recover only the market value of the dog.
Defendant Strickland "contends that under an 1891 supreme court case, dogs are treated differently under the law than other personal property. See Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891)," Justice Lee Gabriel wrote for the three-judge panel. "For dogs, a party can only recover the market value, if there is any, or a special or pecuniary value determined by the usefulness or services of the dog. Id. at 932. Strickland argues that Heiligmann prohibits consideration of the sentimental value of the animal in determining its 'usefulness' to the owner.
"In Heiligmann, the trial court awarded damages to the appellees after three of their dogs were maliciously poisoned by Heiligmann. Id.at 931. The dogs 'were of a fine breed, and well trained'; one of the dogs used different barks to signal to appellees whether an approaching person was a man, woman, or child. Id. at 932. One of the appellees testified that the dogs could have been sold for $5 each, but that she would not have been willing to part with them for $50 apiece. Id.Heiligmann argued that there was no evidence presented supporting a market or pecuniary value of the dogs or that their use or service was valuable to their owner. Id.The court upheld the damages award, holding that the value of a dog 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 the usefulness and services of the dog.' Id.In that case, 'the evidence [was] ample showing the usefulness and services of the dogs, and that they were of special value to the owner.' Id.The court reasoned that the jury could infer the value of the dogs 'when the owner, by evidence, fixes some amount upon which they could form a basis.' Id.
"The Texas Supreme Court has not dealt directly with the value of a lost pet in the 120 years since Heiligmann, but in more recent cases, it has 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. See Likes, 962 S.W.2d at 497 (reaffirming recovery of sentimental value for items that have little or no market value, such as family correspondence, family photographs, and keepsakes); Porras, 675 S.W.2d at 506 (adopting 'intrinsic value rule' and awarding intrinsic value for the loss of shade or ornamental trees); Brown, 369 S.W.2d at 304-05 (awarding sentimental damages for loss of items such as wedding veil, shoes, point lace collar, watch, and slumber spreads). The Medlens contend that the notion that the Texas Supreme Court intended to exclude dogs from the intrinsic value rule appears nowhere in these subsequent opinions. They argue that to treat a dog differently than all other personal property would be irrational."
The appeals court also disagreed with Strickland's claim "that the Medlens 'are asking this Court of Appeals to overturn one hundred and twenty years of law' and that we are 'not empowered to make such a ruling.' First of all, there is a difference between overruling one hundred and twenty years of law and overruling one one-hundred-and-twenty-year-old case. Second, we are doing neither of those things. We are duty-bound to interpret Heiligmann in light of subsequent supreme court decisions which have developed and refined the law concerning intrinsic value damages.
"The Heiligmann court still stated that the dogs 'were of a special value to the owner.' Id. at 226. That special value must be more than the market value of a well-trained dog. A dog's ability to use certain barks to alert its owner to the gender and general age of an approaching visitor would surely be included in its price if it were sold. We believe that the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet.
"Strickland attempts to distinguish this case from the supreme court decisions allowing sentimental damages for personal property by arguing that sentimental value is only recoverable for heirlooms or property that takes a long time to replace, such as trees. According to Strickland's position, intrinsic damages could be awarded for a sentimental photograph of a family and its dog, but not for the dog itself. Strickland's position might also allow intrinsic damages for a pet that had been inherited from a loved one, but not a pet that had been purchased. We find little reason in this argument and do not believe that it reflects the attachment owners have to their beloved family pets.
"Finally, as Strickland has admitted, Texas law has changed greatly since 1891. ...
Heiligmann was ahead of its time by noting that the dogs 'were of special value to the owner.' 16 S.W. at 932. As we noted above, sentimental damages may now be recovered for the loss or destruction of all types of personal property. See Likes, 962 S.W.2d at 497; Porras, 675 S.W.2d at 506; Brown, 369 S.W.2d at 304-05. 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 any other personal property. Cf. Bueckner, 886 S.W.2d at 377-78 (Andell, J., concurring) ('Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.'). 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.
"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. We sustain the Medlens' sole issue on appeal.
"Strickland raises a cross-point, asking that the case be remanded if reversed, so that she may file a motion to dismiss on grounds of governmental immunity. Because we have sustained the Medlens' sole issue and are remanding the case to the trial court on that basis, we do not need to reach Strickland's cross-point seeking the same relief of remand."
The Medlens' attorney Randy Turner told the Fort Worth Star-Telegram that this is the first time in Texas that someone can sue for a pet's sentimental value.
"No matter how attached they were to their pet, and no matter how devastated they were by its death ... they (had been) only entitled to the 'market value' of the animal," Turner told the Star-Telegram.
Strickland's attorney, Paul Boudloche, told Texas Lawyer that "our position is the law has been settled for 120 years not only by the Supreme Court but by the court of appeals. And the decision by the 2nd Court took us totally by surprise.
"I think it's going to have a significant impact on the private sector, particularly veterinarians, kennel owners, even individuals who take care of their neighbors' pets. I mean, for example, on veterinarians, things which would be routine care for a pet, now they have to practice much more defensive medicine," Boudloche said. "[T]he value of a dog has changed in the eye of the law. So, if mistakes happen, the exposure for everybody is much greater."
for the Texas Court of Appeals. Just heard this on the nightly news so I googled it. http://www.courthousenews.com/2011/11/15/41444.htmFORT WORTH (CN) - A Texas appeals court ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court. The closely reasoned opinion cites more than a century of Texas courts rulings on dogs.
The Court of Appeals for the 2nd District of Texas reinstated Kathryn and Jeremy Medlen's negligence lawsuit against Carla Strickland, a City of Fort Worth animal shelter employee.
According to court filings, their 8-year-old Labrador mix, Avery, escaped from the Medlens' back yard and was picked up by the city's animal control.
Jeremy Medlen went to the shelter to bail out Avery, but did not have enough cash in hand to pay the fees. He was told he could return the next day and that a hold-for-owner tag would be placed on Avery's cage, to prevent him from being euthanized. But Avery was killed the next day before the Medlens could pick him up.
The Medlens sued for "sentimental or intrinsic" damages.
Strickland objected, saying such damages are not recoverable for the death of a dog.
The First Tarrant County Court at Law dismissed for failure to state a claim for damages recognized by law. The court said the Medlens could recover only the market value of the dog.
Defendant Strickland "contends that under an 1891 supreme court case, dogs are treated differently under the law than other personal property. See Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891)," Justice Lee Gabriel wrote for the three-judge panel. "For dogs, a party can only recover the market value, if there is any, or a special or pecuniary value determined by the usefulness or services of the dog. Id. at 932. Strickland argues that Heiligmann prohibits consideration of the sentimental value of the animal in determining its 'usefulness' to the owner.
"In Heiligmann, the trial court awarded damages to the appellees after three of their dogs were maliciously poisoned by Heiligmann. Id.at 931. The dogs 'were of a fine breed, and well trained'; one of the dogs used different barks to signal to appellees whether an approaching person was a man, woman, or child. Id. at 932. One of the appellees testified that the dogs could have been sold for $5 each, but that she would not have been willing to part with them for $50 apiece. Id.Heiligmann argued that there was no evidence presented supporting a market or pecuniary value of the dogs or that their use or service was valuable to their owner. Id.The court upheld the damages award, holding that the value of a dog 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 the usefulness and services of the dog.' Id.In that case, 'the evidence [was] ample showing the usefulness and services of the dogs, and that they were of special value to the owner.' Id.The court reasoned that the jury could infer the value of the dogs 'when the owner, by evidence, fixes some amount upon which they could form a basis.' Id.
"The Texas Supreme Court has not dealt directly with the value of a lost pet in the 120 years since Heiligmann, but in more recent cases, it has 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. See Likes, 962 S.W.2d at 497 (reaffirming recovery of sentimental value for items that have little or no market value, such as family correspondence, family photographs, and keepsakes); Porras, 675 S.W.2d at 506 (adopting 'intrinsic value rule' and awarding intrinsic value for the loss of shade or ornamental trees); Brown, 369 S.W.2d at 304-05 (awarding sentimental damages for loss of items such as wedding veil, shoes, point lace collar, watch, and slumber spreads). The Medlens contend that the notion that the Texas Supreme Court intended to exclude dogs from the intrinsic value rule appears nowhere in these subsequent opinions. They argue that to treat a dog differently than all other personal property would be irrational."
The appeals court also disagreed with Strickland's claim "that the Medlens 'are asking this Court of Appeals to overturn one hundred and twenty years of law' and that we are 'not empowered to make such a ruling.' First of all, there is a difference between overruling one hundred and twenty years of law and overruling one one-hundred-and-twenty-year-old case. Second, we are doing neither of those things. We are duty-bound to interpret Heiligmann in light of subsequent supreme court decisions which have developed and refined the law concerning intrinsic value damages.
"The Heiligmann court still stated that the dogs 'were of a special value to the owner.' Id. at 226. That special value must be more than the market value of a well-trained dog. A dog's ability to use certain barks to alert its owner to the gender and general age of an approaching visitor would surely be included in its price if it were sold. We believe that the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet.
"Strickland attempts to distinguish this case from the supreme court decisions allowing sentimental damages for personal property by arguing that sentimental value is only recoverable for heirlooms or property that takes a long time to replace, such as trees. According to Strickland's position, intrinsic damages could be awarded for a sentimental photograph of a family and its dog, but not for the dog itself. Strickland's position might also allow intrinsic damages for a pet that had been inherited from a loved one, but not a pet that had been purchased. We find little reason in this argument and do not believe that it reflects the attachment owners have to their beloved family pets.
"Finally, as Strickland has admitted, Texas law has changed greatly since 1891. ...
Heiligmann was ahead of its time by noting that the dogs 'were of special value to the owner.' 16 S.W. at 932. As we noted above, sentimental damages may now be recovered for the loss or destruction of all types of personal property. See Likes, 962 S.W.2d at 497; Porras, 675 S.W.2d at 506; Brown, 369 S.W.2d at 304-05. 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 any other personal property. Cf. Bueckner, 886 S.W.2d at 377-78 (Andell, J., concurring) ('Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.'). 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.
"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. We sustain the Medlens' sole issue on appeal.
"Strickland raises a cross-point, asking that the case be remanded if reversed, so that she may file a motion to dismiss on grounds of governmental immunity. Because we have sustained the Medlens' sole issue and are remanding the case to the trial court on that basis, we do not need to reach Strickland's cross-point seeking the same relief of remand."
The Medlens' attorney Randy Turner told the Fort Worth Star-Telegram that this is the first time in Texas that someone can sue for a pet's sentimental value.
"No matter how attached they were to their pet, and no matter how devastated they were by its death ... they (had been) only entitled to the 'market value' of the animal," Turner told the Star-Telegram.
Strickland's attorney, Paul Boudloche, told Texas Lawyer that "our position is the law has been settled for 120 years not only by the Supreme Court but by the court of appeals. And the decision by the 2nd Court took us totally by surprise.
"I think it's going to have a significant impact on the private sector, particularly veterinarians, kennel owners, even individuals who take care of their neighbors' pets. I mean, for example, on veterinarians, things which would be routine care for a pet, now they have to practice much more defensive medicine," Boudloche said. "[T]he value of a dog has changed in the eye of the law. So, if mistakes happen, the exposure for everybody is much greater."
