Legally Speaking: Angel On My Shoulder

John G. Browning Apr. 23, 2009, 4:57am

Recently, a New Jersey appellate court made headlines with its ruling that pets have "special subjective value" that judges should consider when deciding custody of a companion animal.

The decision made headlines because in nearly all states, pets are legally treated as mere property, and pet owners are limited as to the damages they can recover when their animals are injured or killed as a result of intentional or negligent conduct.

Traditionally, courts (including those in Texas) have limited damages to the "market value" of the animal (the amount of money someone else would pay for a pet of the same breed, age, and condition), and have refused to permit pet owners to recover damages for emotional distress or loss of companionship. On this issue, I think the courts are dead wrong and fail to take into account how society currently views pets.

How do I know this? Because of a little girl named Bo. Bo came prancing into our lives in September 1998, shortly after my wife and I had experienced the heartache of a miscarriage. My mother told me that she had dreamt that I was sitting by the swimming pool with a little brown dog at my side.

I laughed at the notion, noting that the ornery orange tabby cat we'd had since law school was perfectly happy being the only pet in the household. Besides, I said, if we ever did decide to get a dog, Lisa (who'd grown up with a German shepherd) and I would likely choose a big one.

Then one day, my wife was driving down a street not far from our house when she spotted a small dog walking in the road. She stopped, and tried to coax the dog away from the busy street that it was approaching.

While she had her car door open, the little female Chihuahua/terrier mix with the long brown hair jumped in as though her long-overdue chauffeur had finally appeared, and promptly settled herself on the passenger seat.

Lisa proceeded to return home with her unexpected passenger, and fed and bathed the dog. Although a little thin and without tags or even a collar, the little girl did not otherwise appear neglected.

She ate readily and delightedly explored the house, and must have picked up my scent, for she grew excited when my car pulled into the garage. Lisa hadn't warned me about our little furry houseguest, and as I glanced up at the staircase I was dumbfounded to see this little Chihuahua mix – all 6½ pounds of her – dancing and prancing excitedly at the top of the stairs. As she bounced happily, I looked into her impossibly big, liquid eyes and was lost forever.

Sure, we did the responsible things: we notified local vets and animal shelters with her description, looked for signs and "missing dog" notices, and even purchased materials to make signs of our own. Just days into her stay with us, however, it was becoming evident that my wife and I had fallen hard for this tiny little stranger.

We had her examined by our local vet, who gave her a clean bill of health (though she would need to be spayed), and estimated her age at 2-3 years old. Lisa and I began considering names, and ultimately settled on Bo (short for "Bo neca," a Portuguese term of endearment meaning "pretty little girl" that Lisa's late grandfather had used).

Bo answered to her new name right away, which struck us as odd, but no stranger than other traits. She was perfectly housebroken, and more serious than playful: Bo took the responsibility of guarding her new home very seriously, scrambling to the top of a couch so that she could view the street and bark at passersby.

As for me, I had gained a furry little 6½ pound bodyguard who followed me around from room to room. And I do mean every room: Bo always followed me to the bathroom, and would sit with her back to me as she vigilantly kept watch for approaching threats – give her an earpiece, sunglasses, and a little suit, and she would've looked like a tiny little Secret Service agent. Bo was utterly without fear and we often joked that she didn't know how small she was.

Bo was very much a "daddy's girl" in every way; as Lisa always wryly observed, "She loves her mommy, but she LOVES her daddy."

Bo's favorite spot was on my shoulder, where she would perch while we sat on the couch. At night, she slept in our bed, curled up in a little brown ball on my pillow, as close to my head as she could possibly get.

Although she wasn't wild about losing her "only child" status, Bo was an inspiration for us. Concerned about the many "Bo"s out there in need of loving "forever homes," Lisa began doing animal rescue volunteer work, and soon our house was home to a number of small dogs.

Several started out as fosters until a permanent adoptive home could be found for them; all too often, however, we would flagrantly ignore "fostering 101", fall in love with them, and adopt them ourselves.

All the while, though, our little Bo ruled the roost and reigned supreme as the princess and daddy's little angel (and for those who couldn't tell from her regal posture, she had a little shirt that proclaimed her as "The Princess").

Then one day in August 2008, blood work during a routine checkup revealed that Bo had liver cancer.

The perfect little girl was forced to become the perfect little patient, as she stoically endured being poked, prodded, and tested. We had previously lost an older female Yorkie to a rapidly spreading blood borne cancer, and so we feared the worst.

Surgery to remove the cancerous mass proved futile; the malignancy was situated too close to arteries supplying vital organs, and there was too great a risk that Bo would bleed out.

So, we embarked upon treatment with chemotherapy.

After one form of chemo proved ineffective, a different one was tried. But as is so often the case, the cure was exacting a crueler toll on Bo's frail body than the disease. After several rounds of this type of chemo resulted in adverse side effects and left her worse off than ever, we stopped all chemotherapy in December.

Now, it was just a matter of time.

We resolved that we would make the most of Bo's limited time with us. Desperate to put weight back on her cancer-ravaged frame, we fed Bo whatever she would eat: shrimp, bacon, steak, grilled chicken, you name it (even with appetite stimulants, Bo continued to turn her nose up at regular dog foods).

We took Bo everywhere with us, and everywhere people fussed over the dainty little girl: from my law office to the patio of a dog-friendly restaurant to the bustling crowds of the North Texas Irish Festival (proudly wearing her shamrock bandanna), Bo was the belle of the ball.

But the cancer continued its inexorable advance through her tiny body. By the end of March, her weight had plummeted to 4½ pounds, and the cancerous mass had grown from 2.7 centimeters in diameter to 8.7 centimeters.

Despite pain medication, it was getting harder and harder for Bo to settle herself into a comfortable position and rest; even her cherished spot on daddy's shoulder offered her no relief.

Although she was declining rapidly, and required intravenous fluids just two days before her death, Bo didn't display any pain until the very end.

When she did, on April 19, we tearfully said our goodbyes to this little girl who had bounced so happily into our lives 11 years earlier; under the watchful eyes of a local veterinarian, Bo went to sleep in her daddy's arms for the last time.

I know that the case law dictating that a pet or companion animal is worth no more than that animal's "market value" is wrong, because pets have an impact on our lives in ways that cannot be measured in mere dollars and cents.

They become members of our families; if you don't believe me, just look at the footage of disaster victims who refuse to leave four-legged members of the household behind, as was the case with Hurricane Katrina.

Look at the studies about domestic violence that reveal how abusers use actual or threatened cruelty against family pets as a tool of emotional intimidation and control over human victims, because of the deep emotional bond that exits.

I disagree with the prevailing caselaw, because I know that on April 19 I lost a member of my family, just as I also know that from now on there will be an angel on my shoulder.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

More News