Dog Suit

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
$10,000 punitive.

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.

Comments

[Beldar]

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.

[Beldar]

(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.)

[Antinome]

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.