WAY TO GO, RANDY!!!!!!!!!!!!!!!!!!!
I don't usually cut-and-paste whole articles into this blog, but this decision is so important in this field that I don't want anyone to possibly miss it if the hyperlink breaks or your internet service is acting up or anything else. So here's a good article from a Texas legal journal in its entirety:
For the Love of Avery: Dog Owners Can Recover Sentimental-Value Damages for Loss of Pet
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. Randy Turner of Hurst represents the plaintiffs pro bono.Texas Lawyer
11-14-2011
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.
Unconditional Love
In its Nov. 3 decision, the 2nd Court took aim at the Texas Supreme Court's 1891 decision in Heiligmann 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.
Medlen is a huge victory for Randy Turner, a partner in Hurst's Turner & McKenzie and a dog lover who represents the Medlens pro bono. "I've said before I die or retire, I'm going to get this law changed," Turner says.
"I quote a study [in briefs] that says more than 50 percent of Americans would risk their lives to save their dog. And that's just a fact. And I'm one of those people," Turner says. "After Hurricane Katrina, people wouldn't leave because they wouldn't leave their dogs or cats. I defy you to find a piece of personal property that people value more than their pets. It can't be done."
The loss of Avery was especially hard on the Medlens, Turner says. They had raised the 80-pound brindle-coated dog since he was a puppy, he says. The dog was part of their family and even went on family vacations, Turner adds. Jeremy Medlen had his two children with him at the shelter when they learned Avery had been euthanized, Turner says.
"They are so devastated they have not gotten another dog. They are still grieving," Turner says of the Medlens.
Paul Boudloche, a partner in Fort Worth's Mason & Boudloche who represents Strickland, says he plans to file a motion with the 2nd Court seeking an en banc rehearing in Medlen .
"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," Boudloche says.
"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 says. "[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."
Boudloche says the Texas Veterinary Medical Association already has contacted him about Medlen . Association spokeswoman Ashley Bustamante did not return a telephone call seeking comment.
Yet Boudloche says he and his client understand and sympathize with the emotional price of losing a dog.
"I fully understand," Boudloche says. "I'm a dog lover. I've had a number of dogs and I've grieved every time one of them passed away. And my client was devastated that she may have had something do with this dog's death."
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