Posted on: 7/3/2012
Abby Volin, Harris Beach
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On November 3, 2011, the Court of Appeals of Texas, Fort Worth, issued a groundbreaking opinion holding that pet owners can recover damages for a pet on the sole basis of sentimental value. This is the first court in the United States to find that a pet owner can recover for damages in an amount greater than the market value of the animal. Although many people regard pets as another family member, in the eyes of the law, pets have historically been considered personal property and monetarily not worth more than a nominal value.
On June 2, 2009, Plaintiffs Jeremy and Kathryn Medlen's dog, Avery, escaped from their backyard and was found by the municipal animal control and taken to the city shelter. Mr. Medlen went to the shelter to retrieve Avery, but did not have the requisite funds with him to pay the release fee. Mr. Medlen was told that he could return later to recover Avery. Additionally, a shelter employee placed a "hold for owner" tag on Avery's cage, alerting all shelter staff that Avery was not to be euthanized. When shelter employee Defendant Carla Strickland made a list of animals that were to be euthanized the following day, she mistakenly included Avery on that list, despite the "hold for owner" tag, and Avery was euthanized the next day. Plaintiffs learned what happened when they returned to the shelter to reclaim him.
Plaintiffs sued Strickland, alleging that her negligence was the proximate cause of Avery's untimely death. Because Avery had little to no market value but also could not be replaced, Plaintiffs alleged damages for "sentimental or intrinsic" value. Defendant specially excepted to this claim on the basis that intrinsic value damages for pets are not recoverable under the law. The trial court granted this special exception and ordered Plaintiffs to amend their complaint to state damages recognized under the law. Although Plaintiffs amended their complaint, they still asserted intrinsic value damages. Defendant specially excepted to the court again and this time the trial court dismissed Plaintiffs' complaint. Plaintiffs appealed to the Court of Appeals of Texas, Fort Worth on the single issue of whether a party can recover sentimental or intrinsic value damages for the loss of Plaintiffs' dog.
The controlling case was a Texas Supreme Court 1891 ruling on the type of recovery allowed for the loss of pets. Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891). In Heiligmann, plaintiffs sued defendant for maliciously poisoning three of their dogs. These dogs "were of a fine breed, and well trained." In fact, the dogs were able to signify whether an approaching person was a man, woman or child with their barks. The Texas Supreme Court sustained the damages awarded by the trial court and held that a dog's value 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." The Texas Supreme Court has not directly dealt with this issue since 1891. Moreover, this ruling, that pets are worth their market value, is consistent with the law in all other states; namely, that pets are considered personal property.
The Court of Appeals had a different approach to the issue of the recovery of a lost pet. Throughout the past fifty years, the Texas Supreme Court has held that where "personal property has little to no market value, and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value." Medlen v. Strickland, 353 S.W.3d 576, 577 (Tex. Ct. App. 2011) (citing City of Tyler v. Likes, 962 S.W.2d at 489, 497 (Tex. 1997) (affirming recovery of sentimental value for items with little or no market value, such as family correspondence, photographs and keepsakes; Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984) (awarding intrinsic value damages for the loss of shade/ornamental tree); Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 304-05 (Tex. 1963) (allowing sentimental damages for loss of wedding veil, shoes, point lace collar, watch and slumber spread)).
Using this precedent, the Court of Appeals found that there was no rational basis for treating pets differently than any other type of personal property. Further, the Court of Appeals asserted that the Heiligmann Court did not state that "special or pecuniary value" may only be derived from "usefulness and services" of the pet, nor did the Heiligmann Court delineate all factors that may be considered when determining such an award. Thus, Texas courts have never specifically listed all factors that may be considered nor ruled out factors such as companionship or sentimental value for an award of a lost pet. The Court of Appeals also found it significant that the "intrinsic or sentimental value" recovery rule for personal property came about long after the Heiligmann decision.
Accordingly, the Court of Appeals determined that Plaintiffs could recover for the intrinsic or sentimental value of their lost dog based on the fact that dogs are personal property and should be treated the same as other personal property with little to no market value. The Court of Appeals remanded the case to the trial court for further proceedings. It is unknown at this point whether Plaintiffs will ultimately prevail and recover intrinsic or sentimental damages for the loss of their dog. Defendant raised a cross-point in the appeal requesting remand to file a motion to dismiss on the grounds of governmental immunity. It is likely that Defendant will file such a motion with the trial court in the near future.
While many in the animal rights community are hailing this as a victory in terms of upgrading the legal status of pets, there are several unintended consequences to consider.
First, not every state allows for the intrinsic or sentimental recovery of personal property with little to no market value. For example, in New York, recovery for personal property with little to no market value is limited to the "real value" rule, which is measured by the price the owner paid for the property less any depreciation at the time of the loss. See Mullen v. Sinclair Refining Co., 32 A.D.2d 1000, 301 N.Y.S.2d 716 (3d Dep't 1969); Teich v. Andersen, 24 A.D.2d 749, 263 N.Y.S.2d 932 (1st Dep't 1965); Allboro Equip. Co. v. Hill, 2004 WL 2624634 (N.Y. City Civ. Ct., 2004); Conboy v. Studio 54, Inc., 113 Misc.2d 403, 449 N.Y.S.2d 391 (Civ. Ct., Small Claims, N.Y. Co., 1982); Ashare v. Mirkin, Barre, Saltzstein & Gordon, P.C., 435 N.Y.S.2d 438 (Sup. Ct., Suffolk County, 1980); Alebrande v. N.Y. City Housing Auth., 44 Misc.2d 803, 254 N.Y.S.2d 326 (Civ. Ct., N.Y. County, 1964), rev'd on other grounds, 49 Misc.2d 880, 268 N.Y.S.2d 579 (App. Term, 1st Dep't 1966); Eaves Costume Mfg. Corp. v. Greene, 156 N.Y.S.2d 229 (Muni. Ct., City of New York, 1956). In fact, New York expressly does not recognize a claim for damages of personal property on purely sentimental value. See Polanco v. Dilone, 930 N.Y.S.2d 410 (Fam.Ct. Bronx Co., Aug. 3, 2011); Mohammed v. Air France, 11 Misc.3d 1071(A), 2006 WL 777076 (N.Y. City Civ. Ct.); Furlan v. Rayan Photo Works, 171 Misc. 839, 12 N.Y.S.2d 921 (Muni. Ct., Queens County, 1939); Twersky v. Penn. R. Co., 152 Misc. 300, 273 N.Y.S. 328 (Sup. Ct., N.Y. County, 1934). As such, this decision will have the most impact on states that recognize recovery for the independent intrinsic or sentimental value of personal property with little to no market value.
Also of consideration is how this decision is going to impact ancillary markets to pets, such as veterinary care, veterinary schools, pet food, pet toys and municipal shelters. If owners are suddenly allowed to recover for solely sentimental damages, the number of lawsuits filed against members of those industries will sky-rocket. While this will likely heighten the awareness and care of veterinarians and municipal shelters, this will also dramatically increase the prices of such services: the necessity of veterinarians to obtain increasing medical malpractice insurance will raise already expensive veterinary services; city shelters may close finding the cost of maintaining them and any resulting lawsuits untenable; and the prices of pet food and toys also will rise. Further, many veterinarians may cluster in states where the medical malpractice insurance costs are significantly lower due to the lack of an "intrinsic or sentimental value" rule. This will create a glut of veterinarians in some states with a drought in others. Moreover, organizations that provide free or low-cost care such as the ASPCA or the Humane Society may become hesitant to provide such services in "intrinsic value" states for fear of the costs associated with being sued. The end result of all this is that many pets, especially those in "intrinsic value" states, will receive sub-standard veterinary care because either the drastically higher prices for care will be unaffordable or there will be an insufficient supply of veterinarians in those states.
Time will only tell whether this Texas decision is a one-time fluke or the beginning of a new trend in animal law. This decision will not likely have an impact on the criminal laws related to animal abuse and cruelty. On the civil law side, to all "intrinsic value states": Proceed with caution.
Abby Volin is an associate in the New York City office of Harris Beach, practicing in its Mass Torts and Industry-Wide Litigation Practice Group, as well as in the Medical and Life Science Industry Team. She focuses her legal practice in the areas of complex torts and toxic tort litigation, products liability, pharmaceuticals as well as the emerging field of animal law. Abby defends clients in mass tort and centralized management litigation, including federal multi-district litigation throughout the country. She also assists in the defense of municipalities and corporations in negligence and wrongful death claims. She can be contacted at avolin@harrisbeach.com