Thursday, June 13, 2013

Negligent Euthanasia at Fort Worth Pound Deprives Family of Dog: Texas Supreme Court Allows Only Trivial Compensation

Avery, the dog of Kathryn and Jeremy Medlen, escaped from their back yard on June 2, 2009, and was picked up by Fort Worth Animal Control.  The Medlens did not have enough money to pay the fees to get him out of the pound but promised to return on June 10 when they would have the money. The Medlens were told by Animal Control officials that a “hold for owner” tag had been placed on Avery’s cage to notify employees that Avery was not to be euthanized.  On June 6, an employee of the shelter, Carla Strickland, put Avery on the list of animals to be euthanized anyway. He was put to death on June 7.

Fort Worth Animal Control Main Facility
The Medlens returned for their dog on June 10 and learned his fate.  The Medlens sued Strickland, alleging that her negligence was the proximate cause of Avery’s death.  They sued for “sentimental or intrinsic value” because Avery had little or no market value, but was to them irreplaceable.  Strickland excepted to the claim for intrinsic value and the trial judge ordered the Medlens to amend their pleadings to state a claim for damages recognized at law.  The Medlins filed an amended petition but continued to seek damages based on intrinsic value.  The judge dismissed the lawsuit and the Medlens appealed.

A picture of the dog and the Medlens was published by ABC News.

An 1891 Texas Supreme Court Case  

The Texas Supreme Court had stated more than a century ago, in 1891, in the case of Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891), that dogs could be valued specially based on their usefulness or services to a master.  In that case, three dogs were poisoned.  One of the dogs was described as a Newfoundland that “was trained to signal the arrival of any person at appellees’, who could tell from his bark if the person was man, woman, or child.”  The owners of the dogs sought $25 for the loss of each of the three dogs as actual damages and $75 of exemplary damages. The Texas Supreme Court concluded in the case:

“There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. We cannot say that the verdict in this case is not based upon actual damages, and when the evidence, as it does in this case, justifies a verdict for either actual or exemplary damages, or both, we will not presume that the finding of the jury was based on grounds not proper. We find no error in the record, and report the case for affirmance.”

Fort Worth Court of Appeals

The Medlens argued that the Texas Supreme Court had on occasion accepted intrinsic or sentimental value as a basis for damages, though it had not done so in the case of a pet.  Thus, sentimental value had been allowed in City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) for the loss of family correspondence, family photographs, and keepsakes.  Intrinsic value had been allowed for shade or ornamental trees in Porras v. Craig, 675 S.W.2d 503 (Tex. 1984).  Sentimental damages were allowed for the loss of a wedding veil, watch, and other items in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963). 

In Bueckner v. Hamel, 886 S.W.2d 368 (Ct. App. 1994), plaintiff sued defendant for shooting two of his dogs.  Damages of $1,825 had been awarded in that case, more than market value, perhaps including stud value.  The appeals court accepted this valuation of actual damages but did not address whether intrinsic value was involved.  A concurrence in the case stated:

“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.”

In Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Ct. App. 2004), the Austin Court of Appeals held that a trial court could not award damages for mental anguish, counseling costs, and loss of companionship when plaintiff’s dog escaped from a groomer and was run over.  The Fort Worth Court of Appeals disagreed with “our sister court’s interpretation.” This court noted that Heiligmann had stated that dogs could be of “special value to the owner,” and argued that “the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet.”

The appellate court, applying these cases to the Medlens’ loss of Avery, concluded that “the special value of ‘man’s best friend’ should be protected,” and reversed.  Strickland, now on the hook for much more than Avery’s market value, appealed to the Texas Supreme Court.

Texas Supreme Court

The lawyers for the Medlens likely realized they had lost on the second appeal when they saw that the opening words of the Supreme Court’s opinion consisted of a quote from Lord Byron concerning a Newfoundland dog’s monument: “Beauty without Vanity, Strength without Insolence, Courage without Ferocity, And all the Virtues of Man without his Vices.”  Courts tend to adopt such flowery language when they are going to find that the law does not support the sentiment behind the quote but they want to associate themselves with that sentiment rather than the result they are actually imposing.  Such was the case here.  The Court piled it on in the first paragraph: “Even the gruffest among us tears up (every time) at the end of Old Yeller.”

The Court stated the problem it was facing:

“In today's case, involving a family dog that was accidentally euthanized, we must decide whether to adhere to our restrictive, 122–year–old precedent classifying pets as property for tort-law purposes, or to instead recognize a new common-law loss-of-companionship claim that allows noneconomic damages rooted solely in emotional attachment, a remedy the common law has denied those who suffer the wrongful death of a spouse, parent, or child, and is available in Texas only by statute.”

The Court concluded that though “relationship attachment is unquestionable,” it was nevertheless “uncompensable.” The decision of the Fort Worth Court of Appeals was held to be an unwarranted extension of the law regarding the loss of a pet. As to Heiligmann, the Supreme Court stated:   

“[A] dog's ‘special or pecuniary value’ refers not to the dog-human bond but to the dollars-and-cents value traceable to the dog's usefulness and services. Such value is economic value, not emotional value based on affection, attachment, or companionship. In short, Heiligmann's use of the word 'special' does not authorize 'special damages' and does not refer generically to a dog's ability to combat loneliness, ease depression, or provide security. The valuation criteria is not emotional and subjective; rather it is commercial and objective.”

The Court distinguished Porras, involving the destruction of shade trees, by stating that the recoverable “intrinsic value” there was the “ornamental (aesthetic) value” and “utility (shade) value” of the trees, which were “not rooted in an owner’s subjective emotions.” The gravamen of the Medlens’ claim, according to the Court, was “fundamentally a form of personal-injury damage, not property damage,” akin to loss of consortium, which is a category of recovery “available only for a few especially close family relationships.” 

“Therefore, like courts in the overwhelming majority of other states, the Restatement of the Law of Torts, and other Texas courts of appeals that have considered this question, we reject emotion-based liability and prohibit recovery for loss of the human-animal bond.”  The cases that do not fit within the “overwhelming majority” are at the end of a footnote to the statement.  They involve cases in Florida, Louisiana, and New York (Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla. App. 1978) (jury could consider mental pain and suffering when dog suffered injuries while under veterinarian’s care); Barrios v. Safeway Ins. Co., 97 So.3d 1019 (La. App. 2012) (allowing recovery for mental anguish when owner was nearby and suffers psychic trauma because “clearly, pets are not inanimate objects”); Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (Civ. Ct. 1979) (plaintiff that discovered dead cat in casket meant for her dead dog was entitled to damages beyond market value)).  (All links are to the cases as posted on the Michigan State University College of Law Animal Legal and Historical Center.  See also Note by Rebecca F. Wisch: Quick Summary of Pet/Companion Animal Damages, listing additional decisions.)

The Texas Supreme Court received amicus briefs from animal welfare organizations and noted that these organizations were arrayed on both sides of the issue, with the majority opposing allowing emotion-based damages:

“Several animal-welfare groups—organizations that understand the intense grief and despair occasioned by a pet's death—insist that relational-injury damages would adversely impact pet welfare. For example, the American Kennel Club, joined by the Cat Fanciers' Association and other pro-animal nonprofits, worry that ‘pet litigation will become a cottage industry,’ exposing veterinarians, shelter and kennel workers, animal-rescue workers, even dog sitters, to increased liability: ‘Litigation would arise when pets are injured in car accidents, police actions, veterinary visits, shelter incidents, protection of livestock and pet-on-pet aggression, to name a few.’ As risks and costs rise, there would be fewer free clinics for spaying and neutering, fewer shelters taking in animals, fewer services like walking and boarding, and fewer people adopting pets, leaving more animals abandoned and ultimately put down. The Texas Veterinary Medical Association sounds alarms of ‘vast unintended consequences,’ asserting its members would have no choice but to practice defensive medicine ‘to safeguard against potential claims of malpractice.’ The unfortunate outcome, they contend, would be higher prices for veterinary care, thus fewer owners bringing in their pets for needed treatment. Families, particularly lower-income families, will avoid preventive care for their pets, not seek needed care for ill or injured pets, and be more apt to euthanize a pet. The Texas Municipal League and other government associations worry about police officers and animal-service employees being second-guessed for split-second decisions they must make in the field when they encounter loose and potentially dangerous animals. Not all dogs are good-natured, they warn, and government workers must be free to take swift action to protect citizens rather than worrying about lawsuits that, even if successfully defended, drain finite taxpayer resources. Various insurance groups caution that expanded damages would spike the cost of insurance across the board, not just for veterinarians but also for homeowners and automobile drivers, ‘inflat[ing] the value of property loss far above that which insurance contracts have been written to cover with serious consequences for the affordability and availability of insurance in Texas.’”

These are not negligible considerations, and the Court argued that the costs of allowing damages for emotional loss in pet situations might be best be calculated with a cost-benefit analysis.  For this, the Texas legislature is better equipped than the judicial system: 

“Perhaps the Legislature will enact a more generous valuation formula for family pets. Valuation derives fundamentally from values, and elected legislators may favor scrapping the 'property' label and reclassifying companion pets as something more elevated. The Legislature has passed a wrongful-death statute for humans; it has not (yet) for animals. Given the competing public-policy considerations, we believe if there is to be expanded recovery in pet-death cases, it, too, should be confronted legislatively, not judicially.”

The Court noted that some state legislatures had put limits on non-economic damages in losses of companion animals, including Tennessee ($5,000), Maryland ($7,500), Illinois (case must involve aggravated cruelty or torture, not ordinary negligence). 

Of course, had the Texas Supreme Court affirmed the appellate court, the legislature would have received pressure from various elements in the pet industry to put a cap on the limits that could be awarded for animal loss.  This would have been a powerful force in getting the legislature to move. 


The opinion of the Texas Supreme Court is not to be pilloried, as the Court clearly wants the legislature to wake up and do its duty to the citizens of the State of Texas and their pets.  Nevertheless, I disagree.  The common law can and does recognize social change, and social change regarding the values of pets there has certainly been.  A change in the law to accept damages for emotional suffering is appropriate, and the legislature could then decide whether there should be limits on such awards. 

I suspect that many animal owners, myself included, would not have a problem with certain limits on recoveries.  Veterinary expenses would substantially increase if veterinarians had to pay the kind of malpractice insurance premiums that physicians pay, part of which is based on damages that can arise from emotional suffering.  Dog pounds, however, are too often poorly run, and I have covered cases of negligent euthanasia before.  The Fort Worth Court of Appeals was right to lay blame where it belonged and place monetary responsibility on those who were careless. 

Strickland v. Medlen, 2013 WL 1366033 (Texas 2013), reversing No. 02-11-00105-CV (Tex. App. Dist. 2 2011). 

Thanks to Suzanne Boule for thoughts on this issue.  She says that kill shelters are virtually unknown in France and Germany.  Thanks also to Dennis Civiello for noting that one should check out the positions of various canine organizations on such issues in deciding where to donate or bequeath.  You might learn that an organization does not have animals in mind as much as its own revenue sources. 

No comments:

Post a Comment