September 1998 - They Lost That Loving Feeling
From Don Swaim of Irving (Kern & Wooley) this marvelous opinion by U.S. District Judge Terry R. Mean of Fort Worth in a case that "involved the Anheuser-Busch blimp that flew over the plaintiff's ostrich farm," allegedly causing the ostriches to stop breeding. In granting Don's motion for summary judgment, Judge Means wisely opined:

Plaintiff's further allege that the [loud noise and frightening appearance of the blimp's] fly-over so scared the [ostriches] that the ceased exhibiting the amorous behavior associated with the onset of the breeding season. The males did not puff themselves up and strut around the pens, announcing their romantic intentions; the hens did not extend their wings and drop, fluttering, to the ground, as they had only one day before the fly-over. Plaintiffs allege that the birds' apparent lack of interest in procreation for the remainder of the 1992 breeding season was caused by their unnerving experience with t he airship. In 1993, however, the birds' courtship resumed....

Although Defendants' counsel laid an egg by overlooking the offspring recovery issue, this Court will not bury its head in the sand and ignore clear Texas precedent. Plaintiffs simply cannot recover the value of the offspring they estimate would have been produced but for the airship invading their ostriches' conjugal nest at the heights of breeding season....

Plaintiffs have failed to show the existence of a material factual dispute regarding whether Defendants' actions caused a physical injury to the birds resulting in a decline in their market value. For such an injury, damages could be recovered. Plaintiffs' only proof of injury to the birds, however, is that they lost that loving feeling during the remainder of the 1992 breeding season. Texas courts have not seen fit, however, to fashion a remedy for such harm, and this Court is not free to hatch one. ...

It is, therefore, ORDERED that the Defendants' March 3, 1994 motion for summary judgment should be and is hereby GRANTED.
- posted by texasbar @ 5/17/2011