FEATURE: WHEN A BOOKSHELF IS MORE THAN A BOOKSHELF: SENTIMENTAL DAMAGES IN INDIANA October, 2018 Reporter 62 Res Gestae 13 * Length: 7261 words Author: By Colin E. Flora Colin E. Flora is an associate civil litigation attorney who focuses his practice on appeals, class actions, business disputes, and personal injury cases with Indianapolis-based Pavlack Law, LLC. He is a 2011 graduate with honors from the I.U. McKinney School of Law. Colin has authored numerous journal articles and close to 200 posts for the Hoosier Litigation Blog. He was the recipient of the 2015 Harrison Legal Writing Award (3rd Place), the 2017 Donald R. Lundberg Writing Award, and the 2017 Harrison Legal Writing Award (1st Place). Colin has thrice been designated Friend of the Court (2013, 2016 & 2017) for contributions to the Robert H. Staton Intramural Moot Court Competition. Text [*13] In a corner of my apartment stands a bookshelf. On that shelf are books whose combined worth exceeds the market value of the shelf many times over. Yet, were I confronted with the choice of either saving the books or the bookshelf, without hesitation, I would save the bookshelf. What accounts for such an irrational decision? The law has long understood the answer, but just as long has rejected it. That answer is that the bookshelf holds intrinsic sentimental value for me, which cannot be recognized in the marketplace because no one else has a link to the hours of building it alongside my late grandfather. Although each of us can relate to the concept of sentimental value, 1 almost every jurisdiction claims to reject it as a factor in setting damages for loss of personal property. 2 It may, however, surprise you to learn that Indiana is among the handful of states holding the minority view. 3 Although infrequently addressed, since 1984, Indiana 1 Furlan v. Rayan Photo Works, 12 N.Y.S.2d 921, 171 Misc. 839, 840-41 (Mun. Ct. 1939) ("One can easily understand and sympathize with plaintiff 's emotions as a result of the partial mutilation of his deceased mother's only picture."). 2 See Edmonds v. United States, 563 F. Supp. 2d 196, 202-04 (D.D.C. 2008) (discussing national view); Landers v. Municipality of Anchorage, 915 P.2d 614, 617-20 (Alaska 1996) (same); Dave Linn, "Damages for Loss of Personal Property with Little or No Value," 3 Am. Jur. Proof of Facts 3d 171 § 3 (1989); R. Carol Terry, Annotation, "Elements and Measure of Damages Recoverable from Bailee for Loss, Destruction, or Conversion of Personal Papers, Photographs, or Paintings," 9 A.L.R. 4th 1245 § 5 (1981); W.E. Shipley, Annotation, "Measure of damages for conversion or loss of, or damage to, personal property having no market value," 12 A.L.R. 2d 902 § 7 (1950). 3 See, e.g., Campins v. Capels, 461 N.E.2d 712, 721 (Ind. Ct. App. 1984), reh'g denied ; Mitchell v. Mitchell, 685 N.E.2d 1083 (Ind. Ct. App. 1997), aff'd in relevant part , 695 N.E.2d 920 (Ind. 1998); Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 304- 05 (Tex. 1963); Bond v. A.H. Belo Corp., 602 S.W.2d 105, 108-10 (Tex. App.1980); McCurdy v. Union Pacific R.R. Co., 413 P.2d 617, 623 (Wash. 1966); Terry, supra note 2, at § 4 (collecting cases); 18 Am. Jur. 2d Conversion § 154 (2015); cf. Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084, 1086-87 (Ill. App. Ct. 1987) (suggesting plaintiffs may have been able to recover Page 2 of 11 caselaw has supported awards for sentimental value in the loss of personal property. 4 Still, the circumstances for recovery are, as one court wrote, "severely circumscribed." 5 This article delves into the limited Indiana caselaw and authority from throughout the nation to examine the scope and availability of sentimental damages. As you read, keep in mind one question: Could the author recover for the sentimental loss of his bookshelf? By the end, you should see the answer is anything but clear. In order to understand the exceptional circumstances in which sentimental value may be compensated, we must begin with how damages are traditionally doled out for personal-property injuries. General views of damages At a basic level, there are usually three methods for deriving damages to personal property. The first is to compensate for the diminution in value from the moment immediately before the injury to after, 6 which may include both total destruction of the property as well as accompanying stigma damages that drive down market value. 7 The second is the cost to repair. 8 And the third is the accompanying consequential damages resulting from loss of use. 9 In each of the classic methods for calculating compensation, there is some theoretically objective basis of calculation: the amount of money a reasonable person would pay in the circumstance, i.e. , the fair market value. There are, however, two circumstances in which courts routinely depart from market value. One is the instance of household goods and wearing apparel. 10 In determining the measure of damages to household goods and wearing apparel, Indiana courts have explained: Fair market value is not a proper standard for the measurement of the value of used wearing apparel or household goods. It is generally held that the amount of recovery for the loss, or conversion of, or injury to wearing apparel or household goods is not limited to the price which could be realized by a sale in the market, but that the owner may recover the value of the goods to him, based on his actual money loss resulting from his being deprived of the property, or the difference in actual value caused by the injury, excluding any fanciful or sentimental values which he might place upon them. In determining the value of used wearing apparel or household goods, it is proper to consider any fact which goes to show the real value, such as the cost, and condition and age, and any damage that has resulted to them through use, decay, or otherwise. The value should not be fixed on the basis of any purely sentimental value of the owner or any fanciful price which the owner for special reasons might place thereon. 11 for sentimental damages for loss of dog had they sought such damages). 4 Campins, 461 N.E.2d at 721. 5 Jankoski, 510 N.E.2d at 1087. 6 3 Dan B. Dobbs, The Law of Torts § 481 (2d ed. 2011). 7 9 Indiana Law Encyclopedia at "Damages" § 57 (2015) (hereafter " I.L.E ."); Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 253 (Ind. 2005). 8 Dobbs, supra note 6, at § 481. 9 Id .; 2A Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 8:30 (2009). 10 See generally I.L.E., supra note 7, at "Damages" § 94 (2015); 6 Indiana Law Encyclopedia at "Conversion" § 25 (2008); Brendan de R. O'Byrne, "Valuation of Wearing Apparel or Household Goods Kept by Owner for Personal Use, in Action for Loss of Conversion of, or Injury to Such Property," 34 A.L.R. 3d 818 (1970); Speiser, supra note 9, at § 8:31. 11 Anchor Stove & Furniture Co. v. Blackwood, 109 Ind. App. 357, 363, 35 N.E.2d 117, 119 (1941); accord Campins v. Capels, 461 N.E.2d 712, 719-20 (Ind. Ct. App. 1984), reh'g denied ; Cannon v. Northside Transfer Co., 427 N.E.2d 712, 715-16 (Ind. Ct. 62 Res Gestae 13, *13 Page 3 of 11 At the heart of the household-goods-and-apparel exception, explained one commentator, is the realization that most persons will not turn to the secondary market to replace such goods, instead buying new items to replace lost ones. 12 That behavior seems the result of an innate stigma toward household goods; the value of someone else's used undergarments is decidedly inferior to the value of your own. 13 The other generally recognized exception is when the item either lacks a market from which to derive a value or lacks a value in the existing market. 14 Most frequently the type of items with-out an existing market are items such as photographs, personal papers and drawings. 15 As one author recognized, the lack of market value stems from the reality that often none but the owner wants to own the item. 16 Throughout the nation, the general rule is that damages for loss of property without an existing market value will not encompass the sentimental value of the item. 17 Instead, recovery is for the special or intrinsic value to the owner, but not sentimentality. 18 That is the position advanced in the Restatement (Second) of Torts : Some things may have no exchange value but may be valuable to the owner; other things may have a comparatively small exchange value but have a special and greater value to the owner. The absence or inadequacy of the exchange value may result from the fact that others could not or would not use the thing for any purpose, or would employ it only in a less useful manner. Thus a personal record or manuscript, an artificial eye or a dog trained to obey only one master, will have substantially no value to others than the owner. The same is true of articles that give enjoyment to the [*14] user but have no substantial value to others, such as family portraits. Second-hand clothing and furniture have an exchange value, but frequently the value is far less than its use value to the owner. In these cases it would be unjust to limit the damages for destroying or harming the articles to the exchange value. * * * * If the subject matter cannot be replaced, however, as in the case of a destroyed or lost family portrait, the owner will be compensated for its special value to him, as evidenced by the original cost, and the quality and condition at the time of the loss. Likewise an author who with great labor has compiled a manuscript, useful to him but with no exchange value, is entitled, in case of its destruction, to the value of the time spent in producing it or necessary to spend to reproduce it. In these cases, however, damages cannot be based on sentimental value. Compensatory damages are not given for emotional distress caused merely by the loss of the things, except that in unusual circumstances damages may be awarded for humiliation caused by deprivation, as when one is deprived of essential articles of clothing. If the article was wantonly destroyed, punitive damages can be awarded. 19 App. 1981); N.H. Ins. Co. v. Farmer Boy AG, Inc. , IP 98-0031-C-T/G, 2001 U.S. Dist. LEXIS 18185, at *12-13, 2001 WL 1386055 (S.D. Ind. Oct. 4, 2001). 12 Linn, supra note 2, at § 2. 13 O'Byrne, supra note 10, at § 2[a]. 14 See generally , 18 Am. Jur. 2d Conversion § 152 (2015); Speiser, supra note 9, at § 8:31 (2009); Linn, supra note 12, at § 1; 3 Am. Jur. Proof of Facts , "Damages" Proofs 4-5 (1959) (hereafter " Proof of Facts "); Shipley, supra note 2, at § 9. 15 Terry, supra note 2, at § 3. 16 Linn, supra note 2, at § 1. 17 See Edmonds v. United States, 563 F. Supp. 2d 196, 202-03 (D.D.C. 2008) (discussing general national view); Linn, supra note 2, at § 3. 18 Linn, supra note 2, at § 3; Edmonds, 563 F. Supp. 2d at 203; Mieske v. Bartell Drug Co., 593 P.2d 1308, 1311 (Wash. 1979). 19 Jacobs v. Pa. Dep't of Corr., No. 04-1366, 2011 U.S. Dist. LEXIS 60869, at *49-50, 2011 WL 2295095 (W.D. Pa. June 7, 2011) (quoting Restatement (Second) of Torts § 911, cmt. e (1979)) (internal formatting omitted). 62 Res Gestae 13, *13 Page 4 of 11 Distinguishing between impermissible sentimental damages and permissible intrinsic values is often far from easy. The distinction has been criticized because often the only articulable value is sentimental. 20 Indeed, as one author noted, many older cases claiming to prohibit awards for sentimental loss regularly affirmed awards based exclusively on evidence of sentimental considerations. 21 Of the states permitting sentimental damages, Washington caselaw may be the most difficult to suss out. Routinely viewed as permitting sentimental damages, 22 the Washington Supreme Court has actually held that recovery for sentimentality is not permitted. 23 But the distinction between permissible and impermissible sentimentality is largely semantic. In Washington, the distinction turns on the meaning of "sentimental value." 24 Washington allows some damages that meet Webster's definition of "sentimental," while only excluding damages of "the type of sentiment ... which relates to 'indulging in feeling to an unwarranted extent' or being 'affectedly or mawkishly emotional[.]'" 25 In distinguishing between intrinsic and sentimental damages, likely the most useful articulation was provided by the Supreme Court of Texas: intrinsic or special damages compensate for loss of true, objective value, whereas sentimental damages compensate for the subjective, emotional loss of the relationship. 26 One federal court tasked with determining whether the District of Columbia would permit sentimental damages applied a similar distinction, but held that the permissible scope of damages did not include those "given for emotional distress, caused merely by the loss of" personal property. 27 Indiana cases The general rule in Indiana remains that mental anguish for injury to personal property will not be compensated unless "the act occasioning the injury was inspired by fraud, malice, or like motives, involving intentional conduct." 28 "The reasons courts are reluctant to award such damages are readily apparent. The very nature of the claim is subjective and may easily be feigned. Courts naturally fear a flood of fictitious claims carrying with it potential for imposing unlimited liability." 29 At the core of this article, however, is the fact that Indiana has joined the short list of states allowing a carveout to the general rule for what was classically called pretium affectionis , 30 i.e. , sentimental damages. The first Indiana 20 Linn, supra note 2, § 3 (citing 22 Am. Jur. 2d , "Damages" § 149 (1965)). 21 Id . (collecting cases). 22 See, e.g. , Edmonds, 563 F. Supp. 2d at 203; Landers v. Municipality of Anchorage, 915 P.2d 614, 618 n.6 (Alaska 1996). 23 Mieske, 593 P.2d at 1310. 24 Id. at 1311. 25 Id . (quoting Webster's Third New International Dictionary (1963)). 26 Strickland v. Medlen, 397 S.W.3d 184, 185-86 (2013). 27 Edmonds, 563 F. Supp. 2d at 203; see also Furlan v. Rayan Photo Works, 12 N.Y.S.2d 921, 171 Misc. 839, 840-41 (Mun. Ct. 1939) (denying recovery for sentimental damages for mutilation of only photo of deceased mother). 28 First Nat'l Bank v. Acra, 462 N.E.2d 1345, 1350 (Ind. Ct. App. 1984) (citation and formatting omitted), reh'g denied 29 Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 325, 357 N.E.2d 247, 253 (1976), modified on reh'g , 175 Ind. App. 1, 369 N.E.2d 947 (1977), trans. denied 30 See, e.g. , Thomason v. Hackney & Moale Co., 74 S.E. 1022 (N.C. 1912) ("It has been held that the sentimental value of property, the 'pretium affectionis' as it is called, cannot be recovered as compensation for the destruction or conversion of such property."); Furlan, 171 Misc. at 840 ("Plaintiff 's rare photograph of his deceased mother is an article which has sentimental value principally, or pretium affectionis."). 62 Res Gestae 13, *14 Page 5 of 11 case to so hold was the 1984 Campins v. Capels decision from the Court of Appeals. 31 The destroyed items at issue were "three national racing championship rings awarded by United States Auto Club (USAC) and a free-form wedding band with twelve diamonds." 32 [*15] The wedding band, being replaceable, was compensated at the replacement cost. 33 The debate arose over the proper method for calculating loss of the USAC rings. 34 The Court of Appeals concluded that rings are not household goods, thus removing the USAC rings from the established household-goods analysis. 35 That they "have no real market value, and [that] their sentimental function increases the actual worth beyond the value of the materials[,]" led the court to determine the USAC rings were entitled to valuation differently than other jewelry. 36 The proper method for valuation, the court determined, necessarily included the sentimental value to the owner: The emphasis in the cases where the actual value of the goods exceeded the market value or where there was no market value at all is upon looking at all the circum-stances and the available elements of loss in a rational, reasonable fashion. For example, the South Carolina Supreme Court stated, "[A]ny method adopted, which is obviously fair, and which duly conserves the rights and interest of the party to be made liable, will satisfy legal requirements." We believe the best method to ensure fairness to both parties is to receive a wide range of elements for consideration in the actual value. This range of evidence gives the trier of fact sufficient latitude to intelligently determine the amount of damages. Such elements that have been introduced and relied upon are often such typical factors as cost of replacement, original cost, and cost to reproduce. But our courts and juries have also examined elements of a less prosaic nature, such as the proposed use of woodland for a forestry course, uniqueness, the feelings of the owner, and the cost to build and decorate a room to match a single painting. We believe that sentimental value, in limited circumstances, is also such a consideration. When we refer to sentimental value, we do not mean mawkishly emotional or unreasonable attachments to personal property. Rather, we are referring to the feelings generated by items of almost purely sentimental value, such as heirlooms, family papers and photographs, handicrafts, and trophies. What we are referring to basically are those items generally capable of generating sentimental feelings, not just emotions peculiar to the owner. In other words, any owner of these USAC rings would have similar feelings. The most apt analogy to our situation is that of the trophies. In two cases, courts have awarded damages based on the consideration of the "blood, sweat and tears" expended to win these objects. We see no difference in giving special consideration to items such as these and to the three USAC rings, awarded for three years of "blood, sweat and tears" and thus having special sentimental meaning for Capels. 37 For the next 13 years, no published appellate decisions addressed sentimental damages. That changed in 1997 when the Court of Appeals once more confronted the issue in Mitchell v. Mitchell 38 Affirming an award of $ 35,000 for the loss of photographs, movies, videos, and a leather wallet, each belonging to the plaintiff's [*16] late father, along with a list of persons who had sent flowers to the father's funeral and a mold of his face, the court looked to Campins with little difficulty to find that the items were "just the sort of sentimental items discussed in 31 461 N.E.2d 712, 719-23. 32 Id. at 714. 33 Id. at 719. 34 Id 35 Id. at 720. 36 Id . (emphasis in original). 37 Id. at 721-22 (citations omitted). 38 685 N.E.2d 1083. 62 Res Gestae 13, *14 Page 6 of 11 Campins ." 39 Although transfer was successfully obtained, the Indiana Supreme Court summarily affirmed the portion regarding sentimental damages. 40 Neither Campins nor Mitchell has fully explained how to ascertain when sentimental value may be compensated. Indeed, Campins creates a bit of confusion. There are three general approaches used in other states. The Washington approach requires the plaintiff to affirmatively establish "that the property does not have a fair market value and cannot be replaced." 41 But under the Washington approach, there must, in fact, be no market value. Even $ 200 for an item that clearly possesses cherished sentimental value may be insufficient. 42 Under the Texas approach, sentimental damages are recoverable where the primary value of the item is sentimental. 43 That approach permits sentimental damages even if the market value of the loss is substantial. 44 The determinative question is whether "the object's special value is greater than the market value[.]" 45 And falling between those two perspectives is Florida's view, which permits recovery of sentimental value where "the lost property has both a market value and sentimental value" so long as the plaintiff "prove[s] that market valuation would be manifestly unfair." 46 But Campins indicated that it was applying both the Washington and Texas views without distinguishing between them. In a footnote, the court wrote, "It is important to note that Capels established the lack of market value as it was his burden to do[,]" citing decisions from Illinois, Texas and Washington. 47 That suggests adherence to the Washington approach. But the USAC rings had a replacement value listed as $ 349, indicating a non-zero market value. 48 Further, the focus of Campins appeared to be the nature of the property as "items of almost purely sentimental value, such as heirlooms, family papers and photographs, handicrafts, and trophies[,]" 49 which conforms to the Texas approach. A third Indiana decision focused on whether the property is one of "almost purely sentimental value such as an heirloom[,]" 50 which further signals adherence to the Texas approach. Perhaps adding even more confusion, the 39 Id. at 1088-89. 40 Mitchell v. Mitchell, 695 N.E.2d 920, 925 (Ind. 1998). 41 Sherman v. Kissinger, 195 P.3d 539, 548-49 (Wash. Ct. App. 2008). 42 See id. at 549. 43 Bond v. A.H. Belo Corp., 602 S.W.2d 105, 108-10 (Tex. App.1980) (citing Brown v. Frontier Theaters, Inc., 369 S.W.2d 299 (Tex. 1963)). 44 See, e.g., id. (finding entitlement to sentimental value even when market value was $ 2,500). 45 Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 754 (Tex. App. 1998). 46 Carye v. Boca Raton Hotel & Club Ltd. P'ship, 676 So. 2d 1020, 1021-22 (Fla. Dist. Ct. App. 1996); accord Champlin v. Corrections Corp. of Am., Inc. , No. 5:08cv76-RS-AK, 2008 U.S. Dist. LEXIS 48994, at *20-21, 2008 WL 2686189 (N.D. Fla. June 26, 2008); see also John W. Reis, "Measure of Damages in Property Loss Cases," 76 Fla. Bar J. 32, 36-37 (Oct. 2002) 47 Campins v. Capels, 461 N.E.2d 712, 720 n.1 (Ind. Ct. App. 1984) (citing Jensen v. Chicago & Western Indiana R.R. Co., 419 N.E.2d 578 (Ill. App. Ct. 1998); Allis-Chalmers Mfg. Co. v. Board, 118 S.W.2d 996 (Tex. Civ. App. 1938); McCurdy v. Union Pacific R.R. Co., 413 P.2d 617 (Wash. 1966)), reh'g denied 48 Id. at 722. 49 Id. at 721 (citations omitted). 50 Lachenman v. Stice, 838 N.E.2d 451, 465-68 (Ind. Ct. App. 2005), reh'g denied, trans. denied 62 Res Gestae 13, *16 Page 7 of 11 case that created the Florida approach was cited in Campins 51 And a fourth Indiana decision issued in July suggests a new standard altogether, focusing on an item's "special origin" that "would likely add actual value." 52 [*18] 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, 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 51 Campins, 461 N.E.2d at 720 (citing Fla. Pub. Utils. Co. v. Wester, 150 Fla. 378, 7 So.2d 788 (1942)). Florida courts have also relied upon Campins without distinguishing it from the Florida view. See Carye, 676 So.2d at 1021-22 (citing Campins, 461 N.E.2d at 720 n.1); Champlin, 2008 U.S. Dist. LEXIS 48994, at *19 & *21. 52 Liddle v. Clark , No. 49A04-1707-MI-1662, 2018 Ind. App. LEXIS 257, at *13, 2018 WL 3520797 (Ind. Ct. App. July 23, 2018), petition for trans. filed 53 Tim Wall, "Millennials Led U.S. Pet Ownership to 84.6 Million in 2016; 68 Percent of American Households Now Own a Pet," PetFoodIndustry.com (Apr. 7, 2017), available at www.petfoodindustry.com/articles/6386-millennials-led-us-pet-ownership-to- 846-million-in-2016. 54 Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084, 1086-87 (Ill. App. Ct. 1987). 55 Id. at 1085-87. 56 Sherman v. Kissinger, 195 P.3d 539, 546-49 (Wash. Ct. App. 2008). 57 Id. at 548-49. 58 Id. 59 Id. at 549. It merits note that mutts may be of a type without an existing market from which to ascertain a value. See Brousseau v. Rosenthal, 443 N.Y.S.2d 285, 286 (Civ. Ct. 1980) ("Ms. Brousseau's dog was a gift and a mixed breed and thus had no ascertainable market value[.]") 60 Brousseau, 443 N.Y.S.2d at 286; see also Gerald L. Eichinger, "Veterinary Medicine: External Pressures on an Insular Profession and How Those Pressures Threaten to Change Current Malpractice Jurisprudence," 67 Mont. L. Rev. 231, 243-44 (2006) (discussing Brousseau ). 61 Id. at 287 (quoting Stettner v. Graubard, 368 N.Y.S.2d 683, 685 (Town Ct. 1975)) (quotation marks omitted). 62 Res Gestae 13, *16 Page 8 of 11 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 [*19] expansion a bridge too far, reversing the lower court's ruling in the process: We acknowledge the grief of those whose companions are negligently killed. Relational attachment is unquestionable. But it is also uncompensable. We reaffirm our long-settled rule, which tracks the overwhelming weight of authority nationally ...: Pets are property in the eyes of the law, and we decline to permit non- economic damages rooted solely in an owner's subjective feelings. True, a beloved companion dog is not a fungible, inanimate object like, say, a toaster. The term "property" is not a pejorative but a legal descriptor, and its use should not be misconstrued as discounting the emotional attachment that pet owners undeniably feel. Nevertheless, under established legal doctrine, recovery in pet-death cases is, barring legislative reclassification, limited to loss of value, not loss of relationship. 66 As acknowledged by the Supreme Court of Texas, the vast majority of jurisdictions wholly reject any recovery to an owner meant to approximate the emotional harm for the loss of the animal. 67 Generally, recovery is limited to the animal's market value or its unique services to the owner. 68 The services may include breeding, showing, special training or usefulness such as security. 69 For Hoosier pet owners, whatever room remained in the margin between traditional animal-damages cases and the sentimental-damages cases of Campins and Mitchell was closed by Lachenman v. Stice 70 Confronted with whether a Jack Russel terrier mauled to death by two other dogs entitled the owner to recover sentimental losses from the belligerents' owners, the Court of Appeals of Indiana stood by more than a century of precedent, holding 62 Gluckman v. Am. Airlines, 844 F. Supp. 151, 158 (S.D.N.Y. 1994) (rejecting adherence to Brousseau ); Mitchell v. Heinrichs, 27 P.3d 309, 313 n.20 (Alaska 2001) (same); Kaufman v. Langhofer, 222 P.3d 272, 277-80 (Ariz. Ct. App. 2009) (same); Pickford v. Mason, 98 P.3d 1232, 1235 (Wash. Ct. App. 2004) (same); Travis v. Murray, 977 N.Y.S.2d 621, 625-26 (Sup. Ct. 2013) (rejecting sentimental value for pet); but see Mercurio v. Weber, 2003 N.Y. Slip Op. 51036[U], 2003 N.Y. Misc. LEXIS 801, 2003 WL 21497325 (Nassau Dist. Ct. 2003) (unpublished) (following Brousseau ). 63 Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084, 1087 (Ill. App. Ct. 1987). 64 Strickland v. Medlen, 353 S.W.3d 576 (Tex. App. 2011). 65 Strickland v. Medlen, 397 S.W.3d 184, 185 (Tex. 2013). 66 Id. at 185-86. 67 Linn, supra note 2, at § 3.3 (2017 supp.); Casey Chapman, Comment, "Not Your Coffee Table: An Evaluation of Companion Animals as Personal Property," 38 Cap. U.L. Rev. 187, 195 (2009) ("Most courts are reluctant to allow recovery for mental anguish."); Debra Squires-Lee, Note, "In Defense of Floyd: Appropriately Valuing Companion Animals in Tort," 70 N.Y.U.L. Rev. 1059, 1073-77 (1995). 68 See 1A Indiana Law Encyclopedia , "Animals" §§ 44-45 (2011); I.L.E., supra note 7, at "Damages" §§ 57 & 94; Linn, supra note 2, at § 3.3; Speiser, supra note 9, at § 8:33; Jonathan M. Purver, "Damages for Loss or Injury to Animal," 37 Am. Jur. Proof of Facts 639 §§ 2-3 (1984); Proof of Facts, supra note 14, at "Damages" Proof 6. 69 Speiser, supra note 9, at § 8:30; Brousseau v. Rosenthal, 443 N.Y.S.2d 285, 286 (Civ. Ct. 1980); Chapman, supra note 67, at 193. 70 838 N.E.2d 451, 465-68 (Ind. Ct. App. 2005), reh'g denied, trans. denied 62 Res Gestae 13, *18 Page 9 of 11 that "the measure of damages for the destruction of personal property is the fair market value thereof at the time of the destruction." 71 The owner of the deceased pet attempted to expand both Campins and Mitchell to pets. 72 But the court found those holdings were limited to "items of almost purely sentimental value such as heirlooms, family papers and photographs[.]" 73 Since, the court concluded, "[a] family dog ... is not an item of almost purely sentimental value such as an heirloom[,]" it was subject to the same limitations as other items of personal property. 74 Indeed, the deceased dog was initially acquired for approximately $ 500, which, the court noted, is "not an insignificant sum." 75 In July, the Court of Appeals reaffirmed Lachenman in Liddle v. Clark 76 Writing for the unanimous panel, Senior Judge Shepard found that even without Lachenman as precedent, the court would have ruled the same: [E]ven if we were deciding from a clean slate whether sentimental damages should be recoverable for the death of a pet due to negligence, it would be difficult to determine where to draw the line. Would all types of pets be included? Which individuals would be entitled to recover such damages for the loss of a pet? As the Wisconsin Supreme Court said in denying recovery for emotional distress arising from the killing of a pet, "allowance of recovery would enter a field that has no sensible or just stopping point." 77 Notably, the court distinguished Campins "because the Court intended for its decision to apply to inanimate items whose special origin would likely add actual value." 78 Still, there is reason to suspect the future trend will ultimately be to expand emotional recovery for losses of pets. First, transfer of Liddle is being sought. Second, Tennessee has enacted a statute "allowing up to $ 5,000 in 'noneconomic damages' for the negligent death of one's pet, subject to certain restrictions[.]" 79 And, if the litany of articles calling for recognition of enhanced damages to capture the loss of companion animals 80 are any 71 Id. at 454 & 467. 72 Id. at 467-68. 73 Id. (quoting Mitchell v. Mitchell, 685 N.E.2d 1083, 1088 (Ind. Ct. App. 1997) (quoting Campins v. Capels, 461 N.E.2d 712, 721 (Ind. Ct. App. 1984), reh'g denied ), aff'd in relevant part , 695 N.E.2d 920 (Ind. 1998)) (emphasis and formatting omitted). 74 Id. 75 Id. at 467 n.16. 76 N.E.3d , No. 2018 Ind. App. LEXIS 257, 2018 WL 3520797 (July 23, 2018). 77 Id., 2018 Ind. App. LEXIS 257, at *11-12 (quoting Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d 486, 500, 627 N.W.2d 795, 802 (2001). 78 Id., 2018 Ind. App. LEXIS 257, at *13. 79 Id., 2018 Ind. App. LEXIS 257, at *9 (summarizing Tenn. Code Ann. § 44-17-403 (2007)). 80 See, e.g. , Lauren M. Sirois, Comment, "Recovering for the Loss of a Beloved Pet: Rethinking the Legal Classification of Companion Animals and the Requirements for Loss of Companionship Tort Damages," 163 U. Pa. L. Rev. 1199 (2015); Jessica Rugeley, Comment, "Going to the Dogs: The Successes, Failures, and Hopes for the Future of Texas Animal Law," 46 Tex. Tech. L. Rev. 593 (2014); Schyler P. Simmons, Comment, "What is the Next Step for Companion Pets in the Legal System? The Answer May Lie with the Historical Development of the Legal Rights for Minors," 1 Tex. A&M L. Rev. 253 (2013); Sabrina DeFabritiis, "Barking Up the Wrong Tree: Companion Animals, Emotional Damages and the Judiciary's Failure to Keep Pace," 32 N. Ill. U. L. Rev. 237 (2012); Brandi Browning, Comment, "At Your Service: An Analysis of the Remedies for Service-Animal Providers and a Suggestion for More Effective Recovery Under Existing Tort Law," 42 U. Tol. L. Rev. 493 (2011); Logan Martin, Comment, "Dog Damages: The Case for Expanding the Available Remedies for the Owners of Wrongfully Killed Pets in Colorado," 82 U. Colo. L. Rev. 921 (2011); Kathleen Wilde, Note, "Animal Law in Nevada: All Bark and No Bite," 11 Nev. L.J. 254 (2010); Vasiliki Agorianitis, Comment, "Being Daphne's Mom: An Argument for Valuing Companion Animals as 62 Res Gestae 13, *19 Page 10 of 11 indication, there is a growing belief that the bond between man and beast merits greater legal recognition than between man and armchair. With 81 percent of American pet owners reporting "feel[ing] unconditional love for their pet[,]" it seems a developing consensus is to view them as much more than property. 81 [*20] Quantifying damages Finally, there remains the logistical matter of quantifying damages. As one treatise recognized, the problem with a non-market-based measure is the practical difficulties of controlling a subjective measurement. 82 When it comes to compensating an owner for unique value to him or her, there is no better source than the owner for setting the worth. Nationally and in Indiana, it has long been held that an owner is competent to testify to the value of personal property. 83 Although, generally, "[t]he opinion of the owner as to value is not conclusive ... . The [finder of fact] may consider the description of the article, its original cost, and facts relative to its association with the owner or his family, as well as the opinion of the owner as to its value, and accordingly measure the pecuniary loss suffered." 84 Both Campins and Mitchell provide insight into establishing damages. Accepting that the only damages evidence was provided by the plaintiff, the court wrote in Mitchell : The Campins court stated that "in establishing proof of loss, the complainant is less compelled to provide certainty in the amount of loss as he is to provide certainty in the actual fact of loss." "In addition, no mathematical exactitude is required in assessing damages, and all uncertainties are resolved in favor of the complainant and against the wrongdoer." ... Though we recognize that placing a dollar value on items of purely sentimental value is a difficult and abstract business, we believe that Campins provides sufficient guidance in the determination of damages. We note that the damages awarded by the trial court were based on the lowest estimate given by [Plaintiff]. Because the trial court correctly considered the factors set forth in Campins and its Companions," 39 J. Marshall L. Rev. 1453 (2006); Julian Lee, "Woof, Woof: A Call for Legislative Action to Help Companion Animals and Those Who Care for Them," 32 W. St. U. L. Rev. 141 (2004); Lisa Kirk, Note, "Recognizing Man's Best Friend: An Evaluation of Damages Awarded When a Companion Pet is Wrongfully Killed," 25 Whittier L. Rev. 115 (2003); Elizabeth Paek, "Fido Seeks Full Membership in the Family: Dismantling the Property Classification of Companion Animals by Statute," 25 Hawaii L. Rev. 481 (2003); Lynn A. Epstein, "Resolving Confusion in Pet Owner Tort Cases: Recognizing Pets' Anthropomorphic Qualities Under a Property Classification," 26 S. Ill. U.L.J. 31 (2001); Rebecca J. Huss, "Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals," 86 Marq. L. Rev. 47 (2002); but see Victor E. Schwartz & Emily J. Laird, "Non-Economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule," 33 Pepp. L. Rev. 227 (2006) (making case for restraint in expanding recovery of non-economic losses for animals). 81 Wall, supra note 53. 82 Speiser, supra note 9, § 8:31; see also Mieske v. Bartell Drug Co., 593 P.2d 1308, 1311 (Wash. 1979) ("The problem is to establish the value to the owner. Market and replacement values are relatively ascertainable by appropriate proof. Recognizing that value to the owner encompasses a subjective element, the rule has been established that compensation for sentimental or fanciful values will not be allowed."). 83 Shipley, supra note 2, at § 9; Bonds v. State, 247 Ind. 260, 262, 214 N.E.2d 796, 797-98 (1966); SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 767 (Ind. Ct. App. 2011); Symon v. Burger, 528 N.E.2d 850, 853-54 (Ind. Ct. App. 1988); Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 324, 357 N.E.2d 247, 252 (1976) ("In such cases, after detailing the extent to which his vehicle was damaged, the owner may give his judgment as to the amount of damages suffered He may give his opinion as to the value of the car, as he is presumed to be familiar in some way with its worth." (quoting 15 Blashfield Automobile Law and Practice 5-7, 480.2 (3rd ed. 1969) (emphasis in original)), modified on reh'g , 175 Ind. App. 1, 3969 N.E.2d 947 (1977), trans. denied 84 Harvey v. Wheeler Transfer & Storage Co., 277 N.W. 627, 629-30 (Wis. 1938); see also SJS Refractory Co., 952 N.E.2d at 767 ("Further, the purchase price of a good is admissible as evidence of the value of that good."). 62 Res Gestae 13, *19 Page 11 of 11 findings were supported by the evidence, we hold that the trial court's award of $ 35,000 in damages was not clearly erroneous. 85 It was also of no problem that the plaintiff was the only source of damages evidence: "Because the damages consisted of the emotional loss and expense caused by [Defendant]'s inaction, [Plaintiff] was in the best position to judge the amount of her damages." 86 Campins provides an additional important factor to the analysis. As the Mitchell excerpt above noted, the trial court awarded the lowest amount estimated by the plaintiff, who had set a range between $ 35,000 and $ 50,000. 87 That point is important in light of Campins , which held that a trial court erred in awarding $ 1,000 for each USAC ring because, although the plaintiff had estimated a range of between $ 700 and $ 1,000, when asked to be