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Pet rat carries bacterial infection which kills 10 year-old child

Imagine that you buy a pet rat for your 10 year-old son from a major pet store chain.  Shortly thereafter, your son contracts a rare bacterial infection from the rat and dies due to complications related to the infection.  Can you prevail in a suit against the store that sold you the rat which carried the bacterial infection?

That’s the unfortunate set of circumstances that gave rise to a recent Court of Appeal decision out of San Diego in Pankey v. Petco Animal Supplies, Inc. (2020) 2020 Cal. App. LEXIS 569

After their son Aidan died, his parents filed suit against Petco alleging products liability causes of action, asserting that the rat was a “product” for the purposes of the suit.  Additionally, causes of action were asserted for ordinary negligence and negligent failure-to-warn theories.

Prior to trial, Petco brought a motion for summary judgment of the products liability causes of action on the basis that a pet rat is not a product.  The Court denied the motion, concluding a pet rat is a product for the purposes of California’s strict products liability doctrine.  The case proceeded to trial and the jury found in Petco’s favor for all causes of action.

On appeal, the parents argued the trial Court erred when it refused to instruct the jury as to an alternative “strict liability” design defect theory, the consumer expectations test.  The parents argued that the jury, had they received said instructions, could have concluded the pet rat purchased from Petco failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

The Appellate Court parted ways with the trial Court’s ruling on motion for summary judgment and concluded that a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.  Because of this finding, the Court of Appeal did not reach the issue of the propriety of the consumer expectations test; however, it declared it would have determined the refusal proper even if the rat was a “product.”  The Appellate Court confirmed the judgment of the trial court.

Of note, this decision included a dissent. The dissenting Justice believes the rat was clearly a “product,” sold over 400,000 times throughout the United States each year.  The dissent argues the real question, whether the rat carrying the bacteria was defective, is one for the jury to decide.  The dissent believes the consumer expectations test is appropriate – ordinary pet store customers can form reasonable safety expectations about their purchases, including that a pet rat will not kill their child.

What are your thoughts regarding this case?  Is it reasonable to expect a pet rat comes with the risk of carrying a life-threatening bacterial infection?  Is the pet rat a product?

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