Pet Rat not a Consumer Product

The Fourth Appellate District held 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.

The grandmother of 10-year old Aidan bought him a pet rat. Unbeknownst to them, the rat was infected with streptobacillus moniliformis, a bacteria often carried by pet rates, including those bred for sale as pets. The bacteria was transmitted to Aidan, who developed rat bite fever. He died two weeks after bringing the rat home. Aidan's father, Andrew Pankey, sued Petco, where the rat was purchased, alleging negligence and strict products liability. The case was tried to a jury, which returned a verdict in favor of Petco on all claims, finding that Petco had adequately warned customers of the risk that the rats it sold might carry germs.
Penkey appealed, arguing the trial court erred in refusing to instruct the jury on the consumer expectations test.

The court of appeal affirmed, holding that Aidan's rat was not a "product" for purposes of the consumer expectations test. An animal sold in a diseased condition can be deemed a defective product. The streptobacillus moniliformis bacteria, however, although it is carried by rats and can cause disease in humans, does not cause disease in rats. An animal carrying the bacteria will have no symptoms of illness---it will have glossy fur, bright eyes, and look alert. It can thus not be deemed defective due to disease. Further, pet rats living in their natural state are not "designed." Thus, a pet rat living in its natural state is neither diseased nor designed. To hold a seller responsible under a theory of design defect would make the seller an absolute insurer of the rat's health, biological condition, and even behavior, even though those things are affected by factors beyond the scope of the seller's control. Because a pet rat is not a product for purposes of design defect liability, the consumer expectations test did not apply. Justice Dato dissented, finding no principled basis to distinguish pet rats from millions of other items of personal property placed into the stream of commerce by retailers like Petco. They are products, subject to being deemed "defective" if any of the accepted tests for establishing a product defect can be satisfied, including the consumer expectations test.

Pankey v. Petco, June 24, 2020