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Thursday, November 20, 2003


Factfinders are indeed due considerable deference. I'm working on the assumption that the "juicy details" that supported the plaintiff's case were probably picked up in the newspaper accounts, which is a reasonable but by no means infalible assumption. I'll bet you there is a higher satisfaction rate, and greater degree of devotion to the "clients," at most Petcos than at most law firms. It's a crummy, minimum wage job from which you go home every day with scrapes and bites and stinking of animals in estrus. Almost nobody would take such a job unless they loved animals. I'll bet you that the dogwalker checked the leash and the dog's collar before starting the walk. That translates to reasonable care. Accidents happen every day that aren't the result of anyone's negligence. Dogs run away, chase cars, and are killed every day everywhere in the world without any human necessarily having been negligent. You're approaching this like it's a res ipsa loquitur case — with a presumption that someone must be at fault, therefore someone must pay. Fortunately, that's not the law. Ordinary care also could not possibly require someone to chase a fleeing dog down one of Austin's busiest freeways. Doing so would have been negligence, probably gross negligence, because of the extreme risk that a HUMAN life would be lost in such an attempt. Even unliquidated damages should bear some proportion to things we do attach monetary values to. Here, the overall verdict is higher than the $42,228 yearly median annual household income in the United States, http://www.census.gov/prod/2002pubs/p60-218.pdf. It's almost twice as high as the $27,754 maximum total yearly compensation allowed for workers who can demonstrate their total and permanent disability under Texas Workers Compensation Law, http://www.workerscompensation.com/texas/quickfacts/glance.htm#07. Did the plaintiff take a year or two off work to mourn this dog? I.e., did the plaintiff herself value this dog above a year or two of her own work? If not, then I would submit that the judge erred in valuing the dog more highly than did the plaintiff herself and more than society values the productive yearly output of the average Texas worker. Moreover, a replacement dog -- one who will likely be just as affectionate, and who the plaintiff could probably save from being "humanely destroyed" -- is available at any animal shelter for substantially less than one percent of this award. If the plaintiff didn't get a new dog, she failed to mitigate her damages. I repeat, either the defense lawyer was a complete mullet or the judge lost all perspective. My money is on the latter, but I agree that it's possible that it was the former. But nothing in these newspaper articles can possibly justify this outrageous verdict.
(Unfortunately, with the defaults you have enabled, Typepad converted the URLs I just listed into working links, but added the end-of-sentence periods as part of them, so those URLs won't work unless one copies to clipboard, then into browser address line, then manually deletes the final period before searching. And I meant to say, and did say in an earlier version of this that I stupidly erased by clicking BACK from the preview screen -- Thanks for reading BeldarBlog. My continuing disgreements with you are entirely good-natured in intent, and I hope will be received that way. Welcome to blogging, or in particular, blawging.)
I am not applying any sort of res ipsa to this situation. If there is a difference in our presumptions it is that I presume the judge knew what he or she was doing and that the salient details were left out, particularly given the the dearth of details that we were given. I still contend that this is particularly true given a finding of punitive damages. There is simply more to this case than that fact the leash was dropped. While I understand your point your point about not expecting people to chase the dog into traffic, I would point out that there is no indication that that is where the dog was when it got loose. In fact the employees were standing up on a hill. Further, if it was a dangerous area for them to chase the dog then they may have been violating their own policies about where they walked the dog. If you routinely walk dogs, and if you know that dogs sometimes get loose, is it not arguably negligent to walk them in areas that they will be in immediate danger if they do get loose? As for the argument as to wages and time off of work, I do not buy into that this is a relevant standard to mental anguish. The same argument could be made about a parent who lost their child but continued to get up and go to work every day. I don't think many would not compensate that loss just because someone did not take off work. And while the loss of a pet is no where near comparable to the loss of a child, mental anguish awards for loss of a child can be over a million dollars. A clever lawyer might ask for 1% of that for the loss of a pet and still get the $10,000 awarded. The mitigate damage as for the new dog would go to the loss of society damages, not the mental anguish. And as I said, I don't think that is recoverable under any theory. Thanks for the comments, you have the first that I have gotten. I will try to fix the problem you bring up with regards to the link.

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