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Dog Attacks and Injures or Kills Another Dog – Are Damages Available in Texas?

Friday, October 29th, 2010
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Our law firm on occasion receives call from people whose dogs, cats, and other animals have been injured or killed by a dog.  Naturally, they want to recover money damages and mental anguish as a result of the loss of companionship of the pet.  However, unfortunately, Texas law is very strict in this regard and treats pets simply as property.

Here are some extensive excerpts from a 2004 Austin Court of Appeals opinion about how pets are treated under the law, and what damages can be recovered for the death of our pets:

In this case, we consider the types of damages that Texans may recover for the loss of a pet dog. (1)Appellee, Carol Schuster, sued appellant, Petco Animal Supplies, Inc. (Petco) after her miniature schnauzer, Licorice, was run over by traffic after escaping from a Petco groomer. Schuster took a default judgment, and the trial court awarded damages, including Schuster’s replacement costs for Licorice; her out-of-pocket costs for training and microchip implantation; her wages lost while searching for Licorice after the dog escaped; Schuster’s mental anguish, emotional distress and counseling costs; “‘intrinsic value’ loss of companionship”; exemplary damages; and attorneys fees. Petco now brings a restricted appeal challenging the award of several of these damage elements. Because we are bound to adhere to Texas’s traditional restrictive view toward damages for the loss of a dog, we will affirm in part and reverse in part.

Background

On January 16, 2003, Schuster brought her fourteen-month-old miniature schnauzer, Licorice, to a Petco store in Austin to be groomed. As Schuster was returning to the store to pick up Licorice, she saw the dog running away from the store through the surrounding high-traffic area. Later, Schuster learned that Licorice had slipped her leash and run away from a Petco employee who had taken the dog outside for a bathroom break. Schuster and Petco employees searched for Licorice for four days until, tragically, the dog was found dead, having been run over by traffic.

Schuster sued Petco for breach of contract, gross negligence, and conversion. Petco did not answer, and Schuster took a default judgment and then offered evidence to support a range of unliquidated damages. Schuster testified that Licorice’s replacement value was $500.00, that she had incurred $892.00 to send Licorice to training school and $52.40 for microchip implantation, (2) and that she had lost $857.68 in wages while missing work to search for Licorice.

Schuster also testified that she had experienced a total of $645,000 in mental anguish while searching for Licorice and after learning of the dog’s death, as well as $160 in counseling costs. Schuster also asked the district court to award $280,000 in damages for “loss of companionship of Licorice.” She additionally requested $1 million in exemplary damages, plus attorneys fees.

The district court awarded Schuster the following damages:

$500.00 as the replacement value of Licorice;

$892.00 as reimbursement costs of putting Licorice through training school;

$52.40 as reimbursement for microchip implantation;

$857.68 as lost wages for Schuster when she was searching for Licorice;

$160.00 as counseling costs;

$10,000 as compensation to Schuster for mental anguish and emotional distress;

$10,000 as compensation for “‘intrinsic value'” loss of companionship”;

$10,000 as exemplary damages; and

$ 6,750 as attorney’s fees (with more allowed for any appeals taken).

[portions omitted here]

 Damages for loss of a dog

Petco asserts that the district court could not, as a matter of law, award Schuster damages for mental anguish, counseling costs, “‘intrinsic value’ loss of companionship,” and lost wages. We agree.

Analysis of damage issues recoverable for the loss of a dog in Texas begins with Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891), a tort action arising from the poisoning deaths of several dogs. The jury, finding that the defendant poisoned the dogs intentionally and maliciously, awarded both actual and exemplary damages. Id. The defendant challenged the sufficiency of the evidence of damages. Id. In addressing this argument, the Texas Supreme Court articulated legal principles governing damages for the death of a dog:

The authorities well settle that dogs are property, and that an owner has his action and remedy against a trespasser for the damages resulting from injuries inflicted upon them. Some authorit[i]es hold that dogs have no market value. This may be relatively true, but it is not a rule that will govern in all cases. It may be difficult, in the majority of cases, to ascertain the market value of a dog, but such a result may, in some cases, be accomplished. The special charge asked by appellant, and given by the court, substantially presents the true rule in determining the value of dogs.[ (5)] It may be 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 the usefulness and services of the dog.

Id. at 932. Evaluating the evidence, the court noted that the dogs had been “of a fine breed, and well-trained,” that the owners had taken “great pains” to raise them, and that one of the dogs had even been trained to identify, through distinguishing barks, whether persons who approached were men, women or children. Id. The court concluded that while “[t]here is no evidence in this case that the dogs had a market value . . . the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner.” Id.

Though decided a few years before the Texas courts of appeals were created, Heiligmann remains the law today, and it stands for several key principles that govern our resolution of the damage issues in this case. First, it classifies dogs as personal property for damage purposes, not as persons, extensions of their owners, or any other legal entity whose loss would ordinarily give rise to personal injury damages. Texas courts have continued to classify dogs as property for damage purposes. Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.–El Paso 1997, no writ); Buekner v. Hamel, 886 S.W.2d 368, 370 (Tex. App.–Houston [1st Dist.] 1994, writ denied); see also Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App.–Fort Worth 1981, no writ) (refusing to appoint managing conservator of pet dog in divorce case, observing that “[a] dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.”). We do not understand Schuster to be challenging this traditional classification. (6)

Second, Heiligmann identifies only two elements that can be awarded under the “true rule” of damages for loss of a dog: (1) market value, if any, and (2) “some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.” Third, Heiligmann makes clear that the “special or pecuniary value” of a dog to its owner refers solely to economic value derived from the dog’s usefulness and services, not value attributed to companionship or other sentimental considerations.

Mental anguish

Petco maintains that Heiligmannforecloses Schuster’s recovery of mental anguish damages. Though Heiligmanndid not squarely address whether mental anguish damages are available for the loss of a dog, our sister court in El Paso has held “this longstanding Texas rule” barred recovery of damages for mental anguish, as well as pain and suffering, for the loss of a dog in a veterinary negligence case. Zeid, 953 S.W.2d at 369. (7)

[portions omitted here]

Because there is no support in Texas law for awarding mental anguish damages for the loss of a dog, we reverse the trial court’s award of mental anguish damages. Heiligmann, 16 S.W. at 932;Zeid, 953 S.W.2d at 369.

Counseling expenses

Because Schuster cannot recover for mental anguish or emotional harm arising from Licorice’s death, we also reverse her award of counseling expenses. Alternatively, we agree with Petco that there is no evidence that those expenses were reasonable and necessary.

[portions omitted here]

“‘Intrinsic value’ loss of companionship”

The trial court also awarded an element of damages it termed “‘intrinsic value’ loss of companionship.”

[portions omitted here]

As an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute. (13) Thus, we follow Heiligmannand reject Schuster’s attempt to expand “intrinsic value” damages to embrace the subjective value that a dog’s owner places on its companionship.

Lost wages

Heiligmannwould also appear to preclude Schuster’s lost wages recovery. Moreover, Schuster cites no authority allowing her to recover lost wages for property damage unrelated to her job. Likes informs us that “[w]hile few persons suffering serious bodily injury would feel made whole by the mere recovery of medical expenses and lost wages, many whose property has been damaged or destroyed will be entirely satisfied by recovery of its value.” 962 S.W.2d at 496-97 (emphasis added). We conclude that “lost wages” are not properly recoverable under Schuster’s tort theories. See Heiligmann, 16 S.W. at 932;Zeid, 953 S.W.2d 368; Buekner, 886 S.W.2d 368.

END OF CASE

Even though a Texas resident cannot recover damages for loss of a dog or cat like the damages available for loss of a human being, there is legal protection for pet owners depending on the circumstances. 

In three cases we are currently handling, a dog attacked our clients’ dogs.  While our clients were attempting to save their dogs’ lives, they were attacked as well.  In all these cases, our clients can recover damages under the law for their physical injuries, pain and suffering, and mental anguish.  In one of the three cases, our client’s dog was injured by the attacking dog.  Our client in that case can also recover damages for her dog’s vet bills.  Payment for the vet bills might not seem like much, but it helps to make those responsible pay for a portion of the harm they caused.

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