George Will: Ruling to bark about

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May 31, 2013

 

Excerpt: 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 humananimal 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.