Texas Injury Lawyer Blog

The Forth Worth Court of Appeals recently released the opinion in Medlen v.Strickland holding that a pet owner could recover sentimental or intrinsic value damages for the loss of a pet. The Medlen opinion flies in the face of the 120 year old Texas Supreme Court case of Heiligmann v. Rose decided in 1891. In Heiligmann the Texas Supreme Court held that the value of a dog was to be determined either by the market value or the pecuniary value to the owner. No case since that time has held that a pet owner could recover sentimental damages for the loss of a pet. The Medlen Court points to the more recent Texas Supreme Court cases of City of Tyler v. Likes and Porras v. Craig, both of which held that when personal property has little or no market value that the intrinsic or sentimental value may be used as a measure of damages. No court has applied this analysis to the loss of a pet until Medlen.

Medlen v. Strickland raises a number of interesting questions. If a motorist strikes and injures a cat in the roadway will the motorist, and consequently his automobile liability insurance company, be potentially liable to the cat's owner for sentimental damages? If a dog escapes from a fenced enclosure and kills the neighbors' pot bellied pig will the dog owner, and consequently his homeowner's liability carrier, be liable for intrinsic value damages for the death of the pig? If a dog expires during a medical procedure will the veterinarian, and consequently her malpractice liability carrier, be potentially liable for sentimental damages?

Since Medlen contradicts a 120 year old legal precedent it is highly likely that the Texas Supreme Court will agree to hear this matter. Studies suggest a very high correlation between insurance industry interests and Texas Supreme Court rulings in recent years. With the malpractice liability insurance industry, the automobile liability insurance industry and the homeowner's liability insurance industry all having a "dog in this hunt", Medlen v. Strickland is likely to be short lived.

Breed specific laws aimed at pit bulls, rottweilers, and the other more dangerous breeds would be unlikely to provide relief from the growing incidence of dog attacks in Tyler, Texas. This is not to say that pit bulls and rottweilers are not more likely to cause harm than the other breeds. When a Chihuahua goes rogue you need new shoelaces. When a pit bull goes off you need a new leg. However, the problem of enforcing breed specific laws would be insurmountable and the effect insignificant.

Tyler and the surrounding East Texas area has a problem with attacks by "yard dog" pit bulls. The profile of a "yard dog" pit bull is a dog which appears to have numerous pit bulls in its' family tree but which has no papers. The American Kennel Club has never heard of this dog. It does not have a collar and has never seen a veterinarian's office. It hangs around the yard and sometimes gets fed and sometimes does not get fed. Its' true breed can be determined only by very sophisticated scientific procedures and if it bites someone its owner will deny ownership. Breed specific legislation will be unlikely to have any effect on "yard dog" pit bulls and will only be a burden to the responsible owners of registered, well cared for, well mannered pit bulldogs.

The notion that the owners of large dogs which are allowed to run free should be required to carry insurance has merit. Not because the owners of most farm dogs will ever need the insurance but because it will allow an additional enforcement vehicle for local agencies. Large dogs should also be required to wear a collar that has ownership information and proof of current vaccinations attached to the collar. When a constable or animal control officer sees a large unrestrained dog the officer can easily check for insurance violations, vaccination violations, and identity violations and appropriate citations can be issued. If the dog is not collared and the owner of the property on which the dog is found denies ownership of the dog then it should go to the local animal shelter.

Such a statutory scheme would give local animal control officers a workable method of removing unrestrained, uninsured, uncollared, unvaccinated dogs from the community and would have a significant impact on the problem of the "yard dog" pit bull.

For more information contact a Tyler Dog Bite Attorney today.

My firm recently concluded the jury trial of a case in which a 4-year-old boy was mauled in Tyler by a dog that was restrained on a chain. There was no evidence that the dog had ever bitten anyone in the past. The jury awarded actual damages, primarily for disfigurement, and punitive damages.

Conventional wisdom is that there is no liability in a dog bite case without evidence that the dog has bitten in the past. The saying is that "the first bite is free." As a Tyler injury attorney I've never agreed with this theory.

During the voir dire the jury was carefully questioned whether any of the jurors held the belief that because there was no evidence of a past bite that there could be no liability. No prospective jurors were disqualified on that basis. During the trial one of the Defendants testified that it was not the breed but rather the way a particular dog was raised and conditioned that made it aggressive. The jury also received evidence regarding the training, nature, and disposition of the dog that suggested that the dog would bite. Based upon this evidence the jury found the defendants liability for not only actual damages but also punitive damages. So much for the old wives' tale that the first bite is free.

For more information contact a Tyler Dog Bite Lawyer today.

I've heard a lot of people say that "the first dog bite is free" meaning that there is no liability for a dog owner the first time that a dog bites someone. This saying simply isn't true. After a dog has bitten someone in the past the owner of the dog is clearly on notice that the dog has a propensity to bite and the owner will have a harder time arguing that they were unaware of the dog's aggressive tendencies but that still does not equate to a dog owner getting a pass the first time that a dog nails someone. The fact that a dog has not bitten in the past does not mean that there is not other good evidence which places the owner on notice that their dog will bite. Evidence that a dog is extremely territorial might indicate that a dog would attack. A dog that is unfriendly toward strangers might reasonably be expected to bite.

Regardless of what the dog nuts like to claim certain breeds are also just more likely to be aggressive and bite. Historically, Rottweilers, Pit Bulldogs and Doberman Pinchers are all more likely to attack. Centuries of breeding these dogs for security purposes and fighting have been successful. Sure, there are individuals in these breeds that are big sleepy lapdogs but as a group their breeding causes them to be more likely to go on the offensive and hurt someone. Certain individual dogs are also aggressive because of their training. Most dog trainers will agree that the way a dog is raised and trained has a big impact on the dog's behavior. A dog that is trained to be a watchdog and to become aggressive when strangers approach can be counted on to bite, regardless of whether it has bitten in the past.

The first bite is not free in Texas. The fact that a dog has not bitten in the past is nothing but one fact to be considered when determining whether the owner knew or should have known that the dog would bite.

For more information contact a Tyler Dog Bite Lawyer today.