Beldar has a post from a few days ago about an award out of Austin Texas for the death of a person's dog. Since he makes some points I disagree with (and since I have never actually used the track back feature before and want to try it) I figured I would respond. He has cited to two news articles one in the Houston Chronicle and one in the Austin American Statesmen
With regard to liability, Beldar has his doubts as to whether there was even conduct that amounted to negligence (1) and focuses on the possibility that the leash could have slipped without any lack of reasonable care. Neither he nor I are the fact finders, neither he nor I heard any of the testimony in the case. The judge on the other hand did hear the testimony and found that there was negligence. It is quite possible the two employees were not paying proper attention to what they were doing, they may also have violated their own procedures as to where the dog was to be walked. I think the more reasonable assumption is the judge heard ample evidence to support negligence. This particularly true given that there was some finding to support a punitive damages claim. Presumably, this was under malice, which under Texas law (for the benefit of the viewers at home) includes:
(B) an act or omission:
(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
While we dont know for sure, I suspect malice was based not on how the dog got loose but what happened (or did not happen more likely) after it initially got loose.
"I saw two Petco people up on a little hill by Pier One watching her running down the highway," Schuster said in Sunday's edition of the Austin American-Statesman.
It appears that the two employees may have made no effort to catch this miniature schnauzer and instead watched it run away. In fact giving the above quote and the judges award, which if it was based on malice required the actors subjective awareness of the risk, I would take that dollars to donuts bet about the employees' remorse, at least at the time the dog got away.
The judge in the case awarded $47,000 in total to the plaintiff against Petco. We are missing some information about this because the articles say the award was for
$10,000 mental anguish
$10,000 loss of society
We don't know the basis for the other $17,000. Some of it would be interest, but not all. Some of it may be for the value of the dog itself, probably on an intrinsic value theory (2).
Is $10,000 "too much" to award for the mental anguish associated for the loss of a beloved pet. Some people see their pets as members of their families. Mental anguish is a subjective measure , I just can't see this amount as an "outrageous" amount. Of course to a certain extent whether ones finds such an award "too much" turns on what seems to be "alot" of money. While $10,000 might be more than I might award depending on the testimony, it is not out of the range I might expect to be awarded in the case.
Of course it is qustionable whether it is even recoverable at all in this circumstance:
"In the following Texas cases, the courts adjudicated whether in an action to recover for the killing of, or an injury to, pets and animals, the owner may be entitled to recover damages for the owner's emotional or mental distress. In City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. Eastland 1963), writ refused n.r.e., (Oct. 2, 1963), the court implicitly held that a dog owner may recover mental-distress damages for the killing of the owner's dog. Specifically considering the validity of that portion of the judgment that awarded the dog owner $200 for mental pain and suffering, the court affirmed the judgment. In Zeid v. Pearce, 953 S.W.2d 368 (Tex. App. El Paso 1997), the court, without citing City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. Eastland 1963), writ refused n.r.e., (Oct. 2, 1963), flatly held that one may not recover damages for pain and suffering or mental anguish for the loss of a pet. In Texas, the court said, the measure of recovery for the death of a dog is the dog's market value, if any, or some special or pecuniary value to the owner that may be ascertained by reference to the dog's usefulness or services. This longstanding Texas rule, the court concluded, is inconsistent with a claim for pain and suffering and mental anguish."
“Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals” 91 A.L.R.5th 545 (2001) These two cases are possibly distinguishable since White involved an intentional killing of a dog. If so then that definitely weighs against the award for mental anguish damages. Given the split in authority I don't really question though the judges decision to award the damages.
Now I do question the separate award for loss of society on the basis that does not seem to be any support for this under Texas law. Further since the Texas Supreme Court has held that parents can't get loss of society for their injured children, it seems very unlikely that it would extent it to pets.
The $10,000 punitive damage does not seem to be outlandish to me at all. Even if the actual damages were just a nominal amount, such a nominal amount can support significant punitive damages. The worth of the defendant, the egregiousness of the conduct and the risk of harm are relevant to the inquiry. I can guess the worth of the company and this weighs in favor of a higher of award. I really don't know what were acts or ommisions the basis for the punitive award. But given the range of potential conduct, I can see it being fair.
(1) It appears that this was a negligence case or I guess a bailment case.
(2) if so that would seem to be redundant with the loss of society recovery.