Declarations and Exclusions

Well, Hush My Puppies! Texas Allows Recovery for Sentimental Value of Accidentally-Euthanized Dog

In law school many a year ago, our Real Property professor assured the class one day that "you can find authority for either side of any legal proposition in the opinions of the Texas Court of Civil Appeals." How right he has proved to be.

The Court of Appeals for the Second District of Texas (Fort Worth) ruled earlier this month that the owners of a dog that had been erroneously euthanized by an animal shelter "can recover intrinsic or sentimental damages for the loss" of their pet.

The case is Medlen v. Strickland (11/3/2011), and the facts before the trial court were largely undisputed. The Medlens' dog "Avery" escaped from their yard and was eventually picked up by Animal Control and taken to a shelter. The Medlens quickly learned their dog's whereabouts, but when Jeremy Medlen showed up to retrieve Avery, he was unprepared to pay the necessary fees for the dog's release. Jeremy was told that he could return in the morning, and Avery's enclosure was marked with a "hold for owner" tag. Carla Strickland, a shelter employee, made a list of dogs to be euthanized that evening and, for whatever reason, overlooked or ignored the "hold for owner" tag. When Jeremy Medlen returned with the requisite fees the next morning, he learned that Avery had already joined the choir invisible.

The Medlens sued Strickland for her negligence in bringing about Avery's death. They acknowledged that Avery had had little or no market value, but argued that they should be able to recover "sentimental or intrinsic value" because Avery was "irreplaceable." The trial judge ruled that those damages were not recoverable and dismissed the case; the Medlens appealed.

The trial judge was persuaded by a Texas Supreme Court decision from 1891, Heiligmann v. Rose, in which the plaintiff's three dogs had been poisoned by a neighbor. The evidence there showed that the dogs' market value (in the sense of what they could have been sold for) was about $5 each, but the Texas Supreme Court found that a higher amount of damages could be recovered based on the owner's showing of the dogs' "usefulness and services." In the 120 years since, the state Supreme Court has not revisited the valuation of a companion animal, and Heiligmann had come to be interpreted to mean that the only way to recover anything other than "market value" for an animal's death is by the sort of showing of "usefulness" to the owner that had been made in that case.

Since Heiligmann, however, the Texas high court has considered how to value other sorts of property found to be lacking in true "market value." In particular, a line of cases has determined that "sentimental" value can be considered when the property that is damaged or destroyed—such as family photos, keepsakes, heirlooms and the like—is of value to no one other than its owner. On appeal in this case the Medlens argued, and the Court of Appeals agreed, that a consistent interpretation of the law should require that animals with purely sentimental value be valued in the same way as any other kind of market-valueless property. In other words, because the dog has no value otherwise determinable, the court concluded that its sentimental value provides the proper measure of damages.

The Court of Appeals in Medlen is insistent that it is only "interpreting" Heiligmann, not overruling it. (As an intermediate appellate court, it has no authority to actually overrule a Supreme Court decision, however old that decision may be.) In its interpretation, however, the Court expressly declined to follow relatively recent decisions from other divisions of the Court of Appeals that have construed Heiligmann to limit or preclude sentimental value as a consideration in animal cases. The upshot, then, seems to be—but don't take my word for it, since I am not a Texas lawyer—that Heiligmann remains "good law" but that there is a division of opinion within the Court of Appeals over how it should be applied. Presumably a Texas trial court not within the Second District could elect to follow the rule as interpreted in other Districts' opinions. So the true "rule" in Texas is actually undecided, until such time as the Texas Supreme Court itself revisits the question.

    California Consequences?

Does Medlen have any immediate impact in California? In my view, it should not. In addition to the fact that decisions of out of state courts are not binding upon California courts, the underlying premise of the Medlen decision—that the purely sentimental value of some types of property is compensable in damages—is not consistent with settled California case law and statutes.

Decs&Excs readers may recall that the current state of the law in California turns on two recent decisions. In the 2009 case of McMahon v. Craig, the Court of Appeal found that an animal owner cannot recover damages for emotional distress or "loss of companionship" of an animal that is injured or dies as a result of negligence. More recently, in June 2010, a different division of the Court held in Kimes v. Grosser that the "reasonable" costs of treatment—however that may be determined—can be recovered when an animal is injured, even when those costs substantially exceed the animal's de minimus market value.

Both McMahon and Kimes considered the doctrine known in California as "peculiar value." Peculiar value is the value of property that is unique to its owner, and the doctrine is closely equivalent to what the Texas court calls "intrinsic value." California law differs from Texas law, however, in the manner in which this peculiar/intrinsic value is determined. Unlike the post-Heligmann cases relied upon in Medlen, which specifically permitted "sentimental" value as an element of "intrinsic value," California courts (and federal courts applying California law) have consistently ruled that "peculiar value" must be determined on a "rational" basis, and that sentimental value is a factor that is not to be considered in making that.

Also notable: the concept of "peculiar value" is a creature of statute under California law, codified since 1872 as Civil Code §3355. That statute provides for recovery of peculiar value damages, but only in cases of "willful wrongdoing"—i.e., not in cases where the cause of loss is mere negligence, as in Medlen—or in cases in which the defendant had "notice" of that value prior to the loss occurring.

The current majority rule across the States is that animals are personal property and that market value, or some rationally determined pecuniary value other than mere sentiment, is the appropriate basis on which to calculate damages for loss of an animal. In my opinion, Medlen is most likely not a harbinger of a national shift away from that eminently sensible rule. Medlen is likely to be cited by plaintiffs in animal cases going forward, however, until it is eventually either accepted or expressly rejected on a state by state basis.

~~~

Illustration: "In Disgrace" by Bessie Pease Gutmann. And yes, there was a copy of this classic on my bedroom wall when I was but a young pup of a wee sprat.

 

The Cat Came Back: California Allows "Reasonable" Costs of Treatment as Damages for Injury to Pet with No Market Value

Two years ago, in the case of McMahon v. Craig (in which I was counsel for the prevailing defendants), California's Court of Appeal (Fourth District) held that the owner of a pet or companion animal may not recover damages for "emotional distress" or "loss of companionship" when the animal is injured or dies as a result of negligence.  The McMahon decision implied, without quite holding, that because animals are viewed as a form of property, the applicable measure of damages is the same as for any other sort of property damaged or destroyed through negligence: the reasonable cost of repair or the animal's market value, whichever is less.

Left unanswered in McMahon was this question: Under California law, when an animal has essentially no market value, can the owner recover anything beyond nominal damages for its injury or death?  In particular, if the owner seeks veterinary treatment and the cost of that treatment exceeds any measurable economic value of the animal, can the cost of that treatment still be recovered as damages?

That question has now been considered by the First District of the Court of Appeal.  That panel states its conclusion in the first paragraph of its May 31, 2011, decision in the case of Kimes v. Grosser  [PDF]:

A defendant neighbor allegedly shot plaintiff's pet cat.  To save the cat's life, plaintiff incurred substantial bills.  The trial court dismissed the case on the grounds that the plaintiff would be unable to prove the value of the cat exceeded the costs of "repair." In this appeal, we are called upon to determine what damages can be awarded for a wrongful injury to a pet animal with little market value under these circumstances.  We hold that the owner can recover the costs of care of the pet attributable to the injury of the pet attributable to the injury if the costs are found to be reasonable and necessary, and punitive damages if the injury is found to be intentional.  Based on these conclusions, we reverse the judgment dismissing the case.

(Emphasis added.)

In Kimes, the plaintiff's cat "Pumkin" was shot with a pellet gun while sitting on a fence.  Plaintiff took the cat for emergency surgery, at a cost of $6,000. The surgery saved Pumkin's life, but the cat remained partially paralyzed. Subsequent care for the paralysis cost an additional $30,000.  It was essentially conceded that Pumkin's market value was minimal or nonexistent, so the trial court ruled as a matter of law that the veterinary bills were irrelevant and not to be considered at trial.  With all practical value removed from the case by that ruling, the plaintiff concluded that the expense of trial could not be justified and allowed the case to be dismissed so that the determination could be reviewed on appeal.

After discussing McMahon and finding it not to be dispositive of the question before it—the plaintiff in Kimes was not seeking to recover for emotional distress or lost companionship, though one might, mightn't one, wonder whether any consideration other than emotional attachment justified the expenditure of $36,000 for care—the First District looked to a 1915 decision (Willard) in which "certain scrap books and other data" personally valuable to the plaintiff, a writer, but valueless to anyone else were lost in a fire.

The Willard court, quoting an out-of-state case, acknowledged '"it may be that no rule which will be absolutely be certain to do justice between the parties can be laid down"' for property without market value, but '"it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely."'  Under this reasoning, where the property has no market value, the general rule limiting recovery to the loss of that value cannot apply, because it would invariably preclude any recovery.  In such cases, the property's value '"[m]ust be ascertained in some other rational way, and from such elements as are attainable."'

* * *

In this case, plaintiff is not plucking a number out of the air for the sentimental value of damaged property; he seeks to present evidence of costs incurred for Pumkin's  care and treatment by virtue of the shooting—a 'rational way of demonstrating a measure of damages apart from the cat's market value....
Plaintiff is entitled to have a jury determine whether the amounts he expended for Pumkin's care because of the shooting were reasonable.

* * *

[P]laintiff may present evidence  of the bills incurred to save the cat's life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat.  Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.

(Emphasis added; citations omitted.)

The Court's conclusion, it seems to me, leads to an anomalous or paradoxical result: the damages recoverable for harm caused to valueless property are potentially higher than those recoverable for valuable property.  If Pumkin, for example, had been a prized show cat that could be shown to be worth, say, $2,500, there is little doubt that $2,500 would be the upper limit on damages and that the case would properly belong in Small Claims Court if it belongs anywhere.  Because Pumkin is without a market value, however, the Court of Appeal justifies a potential upper limit on damages that may be $6,000 or even $36,000, if a jury concludes that it is "reasonable" to expend that much for care and maintenance of a "valueless" cat.  In practical terms, despite its protestations to the contrary, the Court has authorized a recovery for expenses incurred precisely because of the non-compensable sentimental or emotional bond between plaintiff and Pumkin.  Sentimentality has been kept out at the front door, but has slipped in through the cat door.

I am aware of at least two cases, now in their very early stages before the Second District of the Court of Appeal in Los Angeles, that raise more or less the same question as has been addressed in Kimes.  Particularly because I am counsel in one of those cases, it will be of great interest, philosophically and practically, to see whether the Second District will agree or disagree with the First.

~~~

Incidentally: In the concluding paragraph of its opinion, the Court confirms that punitive damages will be available if the injury to the cat is shown to have been "willful."  California Civil Code section 3340 expressly authorizes punitive damages for injury to animals if the injury is "committed willfully, or by gross negligence, in disregard of humanity."  Although that statute has been in place since 1872, Kimes is the first published appellate decision to so much as mention it.

~~~

Photo: "Dog and Cat Repair" by Flickr user lisatozzi, used under Creative Commons License.

Post title courtesy of the National Film Board of Canada:

Priceless, But Not Compensable in California:No Emotional Distress or Loss of Companionship Damages for the Death of a Pet

In late 2004, I wrote about the Bluestone case, in which a jury in Orange County, California, awarded a dog owner damages for his distress and loss of companionship in his suit against the veterinarians whose negligence was found to have caused the dog's death:

Although a minority of states -- Hawaii and Florida among them -- have permitted an animal owner to recover damages for the owner's distress when the animal is injured through negligence, the majority of states that have considered the question have come down on the side of the established common law rule: despite the well-known emotional bonds that can and do exist between humans and their non-human companions, the distress that the human may suffer when his or her pet is injured through negligence is not a loss for which any monetary compensation will be awarded.  No published California appellate case has addressed the question, though there are several cases indicating that merely negligent loss or destruction of other types of personal property -- irreplaceable family heirlooms, for example -- will not support an award of damages for emotional distress.  The Bluestone case will likely present that question squarely as it relates to animals.

The Bluestone defendants did take the issue up on appeal, as I reported in March, 2005.  No appellate decision was ever issued, however.  The parties reached a settlement, and the appeal was voluntarily dismissed, leaving California without a definitive statement of the damages a pet owner can or cannot claim for the loss of an animal companion.  Until now.

Late yesterday [Friday, July 31,2009], the California Court of Appeal issued its decision in the case of McMahon v. Craig, holding unequivocally that California law does not permit an animal owner to recover damages for his or her emotional distress at the injury or death of an animal caused by negligence, and that there can be no recovery of damages for loss of the companionship of a non-human companion.

•  Opinion, McMahon v. Craig, Case No. G040324 [PDF]

McMahon v. Craig arises from the death of "Tootsie," a Maltese, following surgery to correct a breathing disorder.  Tootsie's owner brought suit maintaining that the veterinarians' negligence in post-surgical care caused the dog to develop aspiration pneumonia, resulting in Tootsie's sudden death.  The owner further alleged that the doctors had misrepresented the causes of Tootsie's death in order to cover up their negligence.  The lawsuit sought damages for the owner's emotional distress resulting from the veterinarians' negligence, damages for emotional distress caused by the intentional or "outrageous" conduct of the veterinarians in misstating the cause of death, and damages for the loss of Tootsie's companionship.  Prior to trial, the lower court struck out all of the emotional distress and companionship damages.  Because the case had little or no practical value in the absence of those claims -- the recoverable damages if negligence was proven would be limited to Tootsie's relatively limited market value at the time of her death -- the owner stipulated to entry of a judgment in favor of the defendants on all theories, then sought review of the emotional distress/companionship claims in the Court of Appeal.¹

The Court of Appeal rejected each of the plaintiff's claims in turn:

An animal owner does not fall into either of the categories in which California law permits recovery for emotional distress caused by negligence.  The owner is not a "bystander" directly witnessing the injury or death of a close [human] family member, nor can a pet owner be considered a "direct victim" of the claimed negligence.  The court noted that doctors treating children are not liable for the emotional distress of a parent whose child is injured by a doctor's negligence, adding:

Regardless of how foreseeable a pet owner's emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.

On the question of loss of companionship, the court was also influenced by California's existing limitations on such recoveries in cases involving humans.  While California permits damages for lost companionship (or "loss of consortium") in a marital relationship, no such recovery is available in cases involving parents and children.

We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog.  But given California law does not allow parents to recover for loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet.

The court also declined to expand the common law doctrine of "peculiar value" to include the companion-value of a pet.  "Peculiar value . . . refers to a property's unique economic value, not its sentimental or emotional value."

McMahon v. Craig is not so much a statement of a new rule of law in California as it is the first explicit statement of the manner in which existing rules apply to cases involving animals.  It provides a much needed clarification of the law, and aligns California with the majority of other jurisdictions that have considered these questions.²

~~~

Disclosure: George M. Wallace of Wallace, Brown & Schwartz, Pasadena, CA, the author of this weblog, was counsel for the successful defendants in McMahon v. Craig.

~~~

¹   Because of the procedural posture of the case, the Court of Appeal was obliged to accept all of the plaintiff's allegations as true.  The defendants denied that there had been any negligence, misrepresentation, or other wrongdoing on their part and,  in this writer's opinion, would have been able to prevail on the merits if the case had proceeded to trial.

²     At this writing, the decision is not yet final, and is subject to modification either on reconsideration by the Court of Appeal or if review is sought and obtained in the California Supreme Court.

~~~

Photo: "Faithful Dog," Highgate Cemetery, London, by Flickr user Aphexlee, used under Creative Commons license.

~~~

Veterinarians: Dogged by Lawyers

Ted Frank at Overlawyered points to a USA Today article recapping the state of play in malpractice suits against veterinarians.  Using the death of a dog (the ironically named  "Lucky") following a dental procedure as its starting point, the article describes what it claims is a growing trend toward expansive veterinary liability:

Barry Silver, the attorney for Lucky's owners, says that when the case goes to trial this year in Broward County, Fla., he intends to ask jurors to award hundreds of thousands of dollars to the dog's owners, Adam Riff and his mother, Ellen.

If Silver is successful, Lucky's case would join a series of recent court decisions that essentially have treated animals as human under the law. In a reflection of the special place that pets have come to hold in Americans' hearts, U.S. courts are bucking centuries of legal decisions that have defined animals as property.

In recent years, courts in New York, Maryland and Texas have resolved custody disputes involving pets by deciding what's best for the pet. Judges in 25 states have administered financial trusts set up in pets' names.

And as Lucky's case indicates, there has been another turn in animal law: Courts have begun to take claims of veterinary malpractice seriously.

As usual in these stories, there are several references to the case of Marc Bluestone, whose $39,000 judgment in Orange County last year is generally described as the largest veterinary malpractice award to date.   Decs & Excs commented on the Bluestone case, in which our firm played a minor part prior to trial, in a December 6, 2004, item, here. 

The Bluestone verdict has been appealed by the defendant veterinarians, with a cross-appeal by Mr. Bluestone (who apparently contends that he is entitled to an even larger award).  The matter is before Division 3 of the Fourth District Court of Appeal, which has one of the more congested appellate dockets in the state: written briefing is just now getting started, and it is probable that it will be at least another year before the appeal is actually argued and ruled upon.  Interested readers can follow the progress of the case via the Court's on-line docket.

Of related interest: A wide-ranging trove of resources on the law and its relation to animals can be accessed through the Animal Legal & Historical Center, a service of the College of Law of Michigan State University.