Hypothetical questions are fairly common at oral arguments at the Texas Supreme Court. It’s an easy way for justices to probe what could happen in the future if the court ruled a particular litigant’s way.
Sometimes, they’re a useful way for a judge to make a point. And, sometimes, they’re kind of gross. For example, consider the Jan. 10 argument the high court heard in Kathryn and Jeremy Medlen v. Carla Strickland. The litigants in that case are fighting over whether a lower court decision should stand; it allowed pet owners to recover for the “sentimental value” of a dog that was mistakenly euthanized. The litigants and amici in Medlen have brought up all sorts of hypotheticals to test the boundaries of the lower court ruling.
Texas courts allow plaintiffs to recover the sentimental value of “heirlooms” that would otherwise have no value. But what if that heirloom happened to be a dog? Justice Don Willett decided to test this hypothetical out: “Let’s say a beloved canine companion has died, and the owners go to the taxidermist and — for whatever reason — and they have it stuffed and displayed. Can that ever take on the attributes of a heirloom where, if that is destroyed, the owners can get compensation for that heirloom, taxidermied pet, but not the actual pet itself?” Willett asked.
John Cayce, a partner in Fort Worth’s Kelly Hart & Hallman did his best to answer that question, deflecting it as an “apples to oranges” comparison but saying that dogs are “living, breathing, emotive, sentient beings to which humans form an emotional bond,” making the point that puppies (stuffed or not) are not like other forms of personal property and should not be treated as such in the grand scheme of Texas tort litigation.
Randy Turner, who represents the Medlens, who sued over the loss of their pet, argued that pets are property, just like any other object, regardless of whether it’s living or not.
Both are fascinating legal arguments. Still, I’m left pondering a hypothetical question of my own: What would be worse: stuffing my dog for display purposes or seeing my dearly departed canine destroyed by a tortfeasor? On second thought, strike that question, because I'm going to need counseling from just from thinking about it.
--- John Council