WASHINGTON — Lord Byron was, according to one of his legion of lovers, “mad, bad and dangerous to know,” but he also loved dogs, which explains his cameo appearance in a recent Texas Supreme Court opinion. It answered an interesting question in a way that shows how courts can avoid creating opportunities for trial lawyers.
The eyes of Texas were upon the state’s high court when it reaffirmed an 1891 ruling that because pets are personal property, a bereaved owner of a negligently killed dog can seek only economic damages, not emotional damages. A lower court had sided with the Medlen family, letting them sue for “loss of companionship” after their dog Avery escaped from their backyard, was captured by animal control officers and was mistakenly euthanized.
This created an interesting anomaly:
Wrongful death liability is traditionally defined legislatively and restricted to two fundamental relationships — husband-wife, parent-child. The Medlens sought from the judiciary an essentially legislative elevation of human-animal relationships.
The Texas Supreme Court, reversing the appellate court, ruled that this anomaly was just the tip of a troubling iceberg. In an opinion written by Justice Don Willett, the Supreme Court acknowledged that Byron, who knew about vices, was right that dogs are man’s best friend, possessing “all the virtues of man without his vices.” Nevertheless, “pets are property in the eyes of the law, and we decline to permit non-economic damages rooted solely in an owner’s subjective feelings.”
Otherwise there would be profound ripple effects in a nation with more pets than people. To begin with, people treasure many more pets than just dogs — even cats. Should judges, acting as robed legislators, decide which creatures should be given elevated status?
The Medlens argued that although Avery had no significant economic value, he had lots of “intrinsic value” as a family member. The appeals court held that since 1963, Texas law has found that when property, such as an irreplaceable heirloom, has little or no market value but has value in “sentiment,” damages may be awarded on this basis. Dogs, too, are property, ergo damages can be collected for Avery because of his sentimental value.
Texas’ Supreme Court decided to distinguish between dogs and heirlooms “such as a wedding veil, pistol” — this is Texas — “jewelry, handmade bedspreads and other items going back several generations.”
Noting that the Medlens “find it odd that Texas law would permit sentimental damages for loss of an heirloom but not an Airedale,” Willett rejoined that it would be even odder if Texans could recover wrongful-death damages for the loss of a Saint Bernard but not for a brother Bernard.
Laconically noting that “the law is no stranger to incongruity,” Willett explained that “permitting sentiment-based damages for destroyed heirloom property portends nothing resembling the vast public-policy impact of allowing such damages in animal-tort cases.”
The court performed something like a cost-benefit analysis to answer the Medlens’ perplexity that they could seek sentimental damages if a taxidermied Avery, rather than a living, panting Avery, had been negligently destroyed.
The court noted that the American Kennel Club, in a friend of the court brief joined by the Cat Fanciers’ Association and other pet-welfare groups, warned against the unintended consequences of allowing “sentiment-based damages” for injured or destroyed dogs. They fear that “pet litigation will become a cottage industry,” bringing the danger of increased liability to veterinarians, shelter and kennel workers and even dog sitters. “Litigation would arise when pets are injured in car accidents, police actions, veterinary visits, shelter incidents, protection of livestock and pet-on-pet aggression.” As risks and costs rose, the results would be fewer free clinics, fewer shelters, defensive veterinary medicine leading to higher prices, and “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.”
“To his dog,” wrote Aldous Huxley, “every man is Napoleon; hence the constant popularity of dogs.” It would, however, be expensive, in myriad social costs, to create a novel tort action for loss of pet companionship. So Texas’ highest court has held that no Texas dog, however beloved, will be given an exalted status akin to that of an heirloom pistol and thereby becoming the subject of imprecise, arbitrary and potentially unlimited tort litigation.
By this judicial statesmanship, the trial bar was muzzled, for now, and denied a fresh arena for mischief. So Texas’ Supreme Court is, for now, man’s best friend.
George Will’s email address is email@example.com.