SENTIMENTAL DAMAGES Continued from page 16 And so it appears to remain unsettled exactly how one proves entitlement to sentimental damages in Indiana. Based upon the result in Campins, it seems most likely that Indiana follows Texas, with the burden being on the plaintiff to establish that the item is of the type that carries a high degree of sentimental value in excess of the market value,
RES GESTÆ • OCTOBER 2018
but not requiring a complete lack of market value.
What about pets? For the 84.6 million pet-owning households in the United States,53 the obvious next question is whether the loss of a pet permits sentimental damages. In considering that question, an Illinois
appellate court signaled the answer could be yes.54 The court rejected an attempt to expand claims for loss of companionship to loss of a dog’s companionship but suggested that sentimental damages for loss of personal property may have been available had they been sought.55 Similarly, a Washington court held that sentimental damages may be available for the loss of a dog that died while undergoing a medical procedure by a veterinarian.56 The court did not, however, hold that such damages were in fact available, only that there were questions of fact as to whether the dog possessed a market value.57 Only if there was no market value for the pet, the court reasoned, could recovery be made.58 Implicit in the opinion is that most dogs will be found to have a market value of some sort, with the debate largely turning on whether the specific dog had a rare medical condition that would negate the usual cost of between $100 and $200 for the breed.59 In 1980, a New York appellate court went so far as to hold that the emotional value of an injured animal and the loss of companionship was a proper element to consider when evaluating a “dog’s actual value to [its] owner.”60 Most colorfully, the court wrote that the value of the dog did not decrease with the passage of time because, the court believed, “manifestly, a good dog’s value increases rather than falls with age and training.”61 But other courts have failed to carry that decision forward.62 And, as one Illinois court recognized, the decision did not purport to or support creation of an independent cause of action for loss of companionship.63 In late 2011, a panel of Texas’ intermediate civil appellate court held directly that sentimental damages could be recovered for the loss of a dog.64 On review of that decision, the Supreme Court of Texas viewed allowance of sentimental damages for the loss of a pet as nothing more than creating a claim for loss of a pet’s companionship.65 Like the Illinois court, the Supreme Court of Texas considered that
October 2018 edition of Res Gestae, the journal of the Indiana State Bar Association