Kennels, groomers and trainers are not regulated
I get quite a few calls and emails from people whose animals have been injured, killed or lost by kennels, groomers and trainers. They are usually surprised to learn that kennels, groomers and trainers are not regulated in Texas and are not required to be licensed, certified, or inspected. There are no minimum standards, rules or regulations they are required to follow. The person at the nail salon who clips your toenails must be licensed and must undergo inspections by the State of Texas—but not the person who grooms, boards or trains your beloved four-legged family member. The only laws protecting these animals are the animal cruelty provisions in the Texas Penal Code that make it a crime to intentionally, knowingly or recklessly kill, torture, abuse or neglect animals. This affords little protection for these animals since the cruelty usually takes place behind closed doors or not in view of the public, and is usually impossible to show, let alone prove beyond a reasonable doubt. The only recourse when an animal is injured, killed or lost is usually a civil lawsuit for money damages.
Negligence
A kennel, grooming facility, or trainer is liable for the injury, loss or death of an animal if it was caused by their negligence. Negligence is defined as “failing to act as a reasonable, prudent person would under the same or similar circumstances.” Although the burden of showing negligence is on the animal owner, there is a legal presumption that the injury, loss or death of an animal in the possession of a kennel, groomer or trainer was caused by negligence. This presumption is rebuttable and may be overcome by the groomer, kennel or trainer if they can show: 1) how the injury or death occurred, and 2) that it was caused by something other than negligence on their part. If “gross negligence” is shown, then the animal owner may be entitled to recover punitive damages in addition to actual economic losses.
Breach of implied warranty.
In Texas there is an “implied warranty” that services will be performed in a good and workmanlike manner if the services relate to the “repair or modification” of “tangible goods or property.” (Animals are considered property in Texas.) Injuring, killing or losing an animal could be a breach of the implied warranty if the services were going to “repair or modify” the animal. For example, horse-training services would carry an implied warranty because such training would typically “modify” the horse by increasing its value. A breach of implied warranty is a violation of the Texas Deceptive Trade Practices Act which allows for the recovery of attorney’s fees.
Owner is only entitled to economic losses
Texas law treats pets the same as inanimate property objects. If your pet is injured, killed or lost, you can only recover your economic losses. This would be the pet’s “pecuniary” or monetary value” if your pet was killed or lost—which is the amount you could have sold the pet for before it was killed. If your pet was not killed or lost but was only injured, your recoverable damages would be limited to the expenses you incurred in treating your pet’s injuries. 1 You are not entitled to recover your attorney’s fees unless there was a breach of implied warranty or contract or the pet intentionally killed (discussed below.)
Some states have begun allowing pet owners to recover a pet’s sentimental value or damages for mental anguish when a pet is killed. However, Texas law still treats pets as the same as chairs, toasters, lawn mowers or any other piece of property. I took a case to the supreme court in 2013 and tried to convince them to change the law but was unsuccessful. See http://abcnews.go.com/US/texas- supreme-court-rule-dogs-sentimental/story?id=18186388).
So, if your seven-year-old mixed breed dog was strangled to death when the groomer walked away from the grooming table for a few minutes and the dog jumped off the table while still tethered, the most you could sue the groomer for is whatever amount you could have sold your seven-year-old mutt for. (This was an actual case I handled.) And, if you win your lawsuit, the groomer does not even have to reimburse you for the attorney’s fees you spent unless you proved a breach of the implied warranty or an intentional killing as discussed in this blog.
Some lawyers have taken the position that you are not even entitled to recover all those expenses if they exceed the monetary value of your pet, just as you cannot recover the cost to repair your car in an auto collision claim if the repair cost exceeds the car’s market value. I disagree with this because in a case I took to the Texas Supreme Court they recognized that pets are “a special form of personal property,” and I think the Court would allow a pet owner to recover veterinary expenses even though they exceed the pet’s monetary value. This issue will need to be decided by the courts.
Punitive or exemplary damages
If your pet was killed or injured by the “gross negligence” of a groomer, kennel or trainer, then they may be liable for punitive or exemplary damages, in addition to your economic losses. These damages may be assessed to punish the wrongdoer and deter such conduct in the future. “Gross negligence” is defined as conduct “a) which … involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and b) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” Gross negligence is usually extremely difficult to prove, and punitive damage awards are very rare.
Intentional killing or injuring an animal
If your animal was intentionally killed or injured, then, in addition to your economic losses, you may also be entitled to recover punitive or exemplary damages. These are damages that may be assessed against a wrongdoer to punish and deter such conduct in the future (see paragraph above.)
If your animal was intentionally killed, you can file suit under the Texas Theft Liability Act. If successful, you may recover the monetary value of the animal along with “additional damages” up to $1,000, and attorney’s fees. However, the Theft Liability Act is a “loser pays” statute and an animal owner who loses such a lawsuit will be liable for the other party’s attorney’s fees.
Texas Humane Legislation Network
Everyone in Texas who owns a pet and cares about the laws that protect them should join the Texas Humane Legislation Network (www.thln.org). This is a non- profit, grassroots organization that fights for animals in the Texas legislature. Most of the animal protections laws in Texas were passed because of THLN’s efforts. The more members THLN has, the more clout they have in Austin to get animal protection laws passed.