SAN DIEGO (Legal Newsline) – A deadly rat is not a product under products liability law, a California appeals court has ruled in the case of a boy who contracted an infection from it and died.
Andrew Pankey sued Petco in San Diego Superior Court, but a jury failed to put the blame on Petco for son Aidan’s death. California’s Fourth Appellate District affirmed its decision on June 24, though one judge authored a dissent.
“We are sympathetic to Andrew and his family for the tragic loss of Aidan. However, because we conclude an unmodified rat is not a designed product for purposes of design defect strict products liability, we are compelled to affirm the judgment,” Justice Richard Huffman wrote for the majority.
Aidan was 10 in 2013 when his grandmother bought him a rat that he kept at her house, occasionally taking it out of its shelter to play with it.
Two weeks later, he developed a fever and grew lethargic. He collapsed on the floor and died at the hospital shortly after he arrived.
Tissue samples revealed a bacteria carried by rats called streptobacillus moniliformis. His rat was shown to have it also, leading to his death being caused by rat bite fever.
The lawsuit alleged negligence and strict products liability on the part of the rat supplier and Petco, which sells about 400,000 rats each year. They can be tested for the bacteria, but Petco does not tell customers that it is available.
Instead, the company requests its suppliers to provide rats that don’t have it. It also warns customers in three ways, the court ruled.
The first is a sign near rat habitats that say all small animals can carry germs that can infect humans. Also, Petco displays a care sheet that tells customers “all rats are potential carriers of infectious diseases, such as Rat Bite Fever.”
Third, customers who buy animals there must acknowledge that they’ve read caution statements on a card made available to them.
When the trial began, Andrew had four theories: negligence, warning defect, manufacturing defect and design defect.
By the end, the trial judge refused to instruct the jury on the consumer expectations test, which would have allowed it to find a design defect if “the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary customers.”
Instead, the jury was told to conduct a risk-benefit test to determine if Petco established that the benefits of the product’s design outweigh its risks.
The jury found Petco adequately warned of the dangers of buying a rat. It also found the risk of the rats design did not outweigh its benefits.
Justice William Dato would have overturned their findings, he wrote in his dissenting opinion. He would ask for a new trial at which the jury would have been instructed on the consumer expectations test.
Dato wrote that Petco’s general warnings did not include the risk of death or serious injury because they could have been bad for rat sales.
“And perhaps a jury could rationally conclude that the incidence of serious consequences from RBF is sufficiently rare that no more specific warning was required,” Dato wrote. “But it does not mean that ordinary consumers would expect to die — or, worse yet, watch their child or grandchild die — after playing with a furry little creature purchased for benefits of companionship.
“In those instances, liability based on the product's design could be properly imposed on the product seller so that cost of a rare and unexpected — but nonetheless devastating — injury can be internalized in the price of the product and spread among all users. In that way, the price of the product could reflect its true cost.
“Consistent with the well-established consumer expectations test, the jury here should have made that call.”