By Mark J. Schocke
A recent case in the United States District Court for the Southern District of Indiana examined an interesting and novel topic in Indiana law: whether an animal purchased from a pet store qualified as a product for the purposes of the Indiana Product Liability Act. Ultimately, the case was resolved on other grounds at the summary judgment stage before a court ruling whether a pet could be a product. Nonetheless, whether living things can be characterized as products under the IPLA is an interesting question that is likely to resurface. This article focuses on the practical legal considerations of categorizing pets as products within the statutory constructs of the IPLA; however, one could just as easily argue the negative ethical implications of finding that a pet is a product under the Act. Few would consider a faithful family dog a fungible product to be exchanged as chattel in interstate commerce. Nonetheless, since the issue has recently arisen, we should take another look at the way we classify pets within the IPLA.
A. What does the IPLA govern?
The IPLA governs “all actions that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by the product, regardless of the substantive legal theory (or theories) upon which the action is brought.” See Ind. Code §§ 34-6-2-115; 34-20-1-1; see also Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 975 (Ind. 2002). A products liability claim may proceed only on a single count of strict liability under the IPLA, which also encompasses the common-law theory of breach of implied warranty. See, e.g., Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 582-84 (Ind. Ct. App. 1986) (upholding grant of summary judgment on breach of implied warranty in tort claim because that count duplicated and merged with strict liability in tort claim). Moreover, when a cause of action relates to an injury caused by a product, the IPLA is the exclusive remedy. See Ind. Code § 34-20-1-1; see also Stegemoller, 767 N.E.2d 974, 976 (Ind. 2002). The term “product,” for purposes of the IPLA, is defined generally as “any item or good that is personalty at the time it is conveyed by the seller to another party.” Ind. Code § 34-6-2-114. The IPLA, however, fails to define “product” further or to otherwise shed light on whether the Indiana Legislature intended such term to include a pet animal (i.e., a living organism that is not manufactured, has a changeable nature, and has a tendency to be affected or altered by its environment). Moreover, there is no instructive Indiana case law on the issue. The law in other jurisdictions must be examined to assess the possible outcome in Indiana. It is important to note that the IPLA is patterned after the Restatement (Second) of Torts, Section 402A, which is a guide for the product liability statutes in other jurisdictions. Accordingly, other jurisdictions with product liability acts based on 402A are likely to provide reliable guidance on the subject. Section 402A of the Restatement (Second) of Torts, provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
B. Jurisdictions holding that a pet is not a product – The majority opinion
Five states have held that a pet is not a product pursuant to their states’ product liability statutes: Colorado, Illinois, Missouri, Ohio and South Dakota. Similarly, Georgia has adopted the majority opinion that pets are not products, explaining that “[t]he inherent differences between a pet dog and a manufactured product are obvious, including whether the performance or behavior of these two is reasonably predictable.” See Coogle v. Jahangard, 271 Ga. App. 235, 237, 609 S.E.2d 151,153 (Ga. Ct. App. 2005).
In short, the overarching theme in the majority states is that living creatures are by their nature engaged in a continuous process of internal development and growth. Moreover, because they are participants in a constant interaction with the environment around them by sheer virtue of their development, living creatures have no “fixed nature” and, thus, cannot be “products” for purposes of a product-liability action as a matter of law. See, e.g., Latham v. Wal-Mart Stores, Inc., 818 S.W.2d 673, 676 (Mo. Ct. App. 1991) (citing Anderson v. Farmers Hybrid Cos., Inc., 408 N.E.2d 1194, 1195-1200 (Ill. Ct. App. 1980)); see also Whitmer v. Schneble, 331 N.E.2d 115, 118 (Ill. Ct. App. 1975). In the majority jurisdictions, courts have held that the purpose of imposing strict liability on sellers of products would be defeated if such liability applied to “products whose character is easily susceptible to changes wrought by agencies and events outside the control of the seller, which is the case with living creatures.” Anderson, 408 N.E.2d at 1199. Given the changeable nature of living creatures and the potential influence on them of exterior events and conditions that are generally outside the seller’s and breeder’s control, one can draw the obvious conclusion that animals are not products. Id. A product — for purposes of product liability laws — must be of a fixed nature at the time it leaves the seller’s control. Id. Because living creatures have no fixed nature at the time they enter the stream of commerce, they are not products as contemplated by product liability laws. Id.; see also Blaha v. Stuard, 640 N.W.2d 85, 89 (S.D. 2002) (holding that dogs are not products as a matter of law because they are not fixed in nature).
Similarly, in Malicki v. Koci, 700 N.E.2d 913, 914-15 (Ohio Ct. App. 1997), the Ohio Court of Appeals determined that a pet parakeet (which, shortly after it was purchased, allegedly gave its owners parrot fever, an infectious avian disease that can be transmitted to humans) was not a product for purposes of Ohio’s product liability statute. The Malicki court specifically noted that “[i]mposing strict liability upon the defendants in this case would yield the harsh result of holding them responsible as absolute insurers of the health of a living organism whose health can be affected by many factors totally outside the defendant’s control.” Id. at 915. Similarly, in Latham, the Missouri Court of Appeals held that a parrot was not a product for product liability purposes, observing that “due to their mutability and their tendency to be affected by the purchaser, animals should not be products under [Restatement (Second) of Torts Section] 402A as a matter of law.” Latham, 818 S.W.2d at 676. Likewise in Kaplan v. C Lazy Ranch, 615 F. Supp. 234, 236-37 (D. Colo. 1985), a Colorado court held that a horse is not a product for purposes of recovery under Colorado’s Product Liability Act. In Kaplan, the plaintiff was injured when she fell from a rental horse she was riding, allegedly because the saddle was loose. (Evidently, the horse tended to expand its chest while being saddled, preventing the saddle from being tightly cinched.) Id. at 236. As a result, the plaintiff filed an action against the stable owner alleging strict liability for failure to warn that the horse had an unreasonably dangerous habit of expanding its chest while being saddled. Id. The Kaplan court determined, in relevant part, that a horse was not a product because the animal’s nature is not fixed when it leaves a seller’s control. Id. at 238. The sale of living things simply does not meet this criterion. Id. Moreover, the Kaplan court held that characterizing a horse as a product would be contrary to established case law and the basic policies underlying the doctrine of strict product liability. Id. The Kaplan court also examined Colorado’s product liability law’s definitions of “seller” (“any individual or entity who is engaged in the business of selling or leasing any product for resale, use or consumption”) and “manufacturer” (“a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer”) and ultimately determined that whether the defendant stable is a seller or manufacturer depends upon whether a saddled horse, or a ride on a horse with a saddle, constitutes a product. Kaplan, 615 F. Supp. at 237-38. In holding that the Colorado products liability statute did not cover living animals, the court commented, “no person ever designed, assembled, fabricated (except the Greeks at Troy), produced, constructed or otherwise prepared a horse.” Id. at 238.
C. Minority opinion – Pets are products
Three states have disagreed with the majority: New York, Connecticut and Oregon. These states appear to have adopted public policy arguments to support consumers within their states, although Connecticut and Oregon have crafted interpretations of 402A to encompass pets as products. In Connecticut, a mother purchased a puppy for a small child. The puppy was harboring a communicable disease at the point of sale. Worrell v. Sachs, 41 Conn. Supp. 179, 180, 563 A.2d 1387 (Super. Ct. 1989). The disease spread to the child causing severe and permanent vision loss. In Worrell, the court examined the Connecticut product liability act (also based on 402A) and reasoned that the mutability component of a plaintiff’s product case (e.g., the plaintiff’s ability to prove change from the point of manufacturer throughout the supply chain to the end consumer) is difficult to apply to a living organism. But despite the difficulty in application, the Worrell court reasoned that an animal was still a product because 402A does account for a “change in character” in products, which applies equally to living animals. Worrell, 563 A.2d at 1388.
New York has taken the approach that “there is no reason why a ... vendor who places a diseased animal in the stream of commerce should be less accountable for his action than one who markets a defectively manufactured product. The risk presented to human well-being by a diseased animal is as great and probably greater than that created by a defectively manufactured product ... .” Beyer v. Aquarium Supply Co., 94 Misc. 2d 336, 337, 404 N.Y.S.2d 778 (1977). Similarly, Oregon has adopted the consumer protection position holding that consumers who are otherwise unaware of a pet’s underlying infection at the point of sale should not be denied a just remedy as the sellers are in a superior position to detect and guard against selling diseased animals. Sease v. Taylor’s Pets, 74 Or. App. 110, 700 P.2d 1054, rev. denied, 299 Or. 584, 704 P.2d 514 (1985). The Sease court, like Worrell above, found that the Oregon product liability statute (also based on 402A) encompasses products that are subject to both natural change and intentional alteration (mutability), and as such, animals are encompassed in the Act. Sease v. Taylor’s Pets, Inc., 700 P.2d at1058.
Clearly, the three minority jurisdictions are primarily concerned with protecting the consumer, although Connecticut and Oregon have tied their holdings to a reasonable interpretation of the product mutability factor of 402A. Despite the practical difficulty of attributing liability to sellers and breeders of pets, the policy arguments of protecting the public appear to bear great weight in these jurisdictions.
D. Indiana’s likely position
Indiana is likely to adopt the majority view in light of the policy adopted in its sister jurisdictions of Illinois and Ohio. While Indiana’s course is uncertain, the practical difficulty of characterizing a pet as a product would result in harsh consequences for the entities in the chain of a pet’s life before the pet’s placement in a home. As living organisms are subject to natural changes, it would be unjust to attribute these changes to persons selling or raising these animals. While policy considerations of protecting the public from potential harm are important, we must also appreciate the complexity of designating family pets as mere fungible chattel with defects like every other widget. Taken one step further, if pets were classified as products under the IPLA, liability concerns could arise for rescue associations and animal shelters that typically charge fees for adopting animals. As such, it is likely that Indiana will join the majority, should the issue arise.•
Mr. Schocke is an attorney in the Merrillville office of Kightlinger & Gray and is a member of the Defense Trial Counsel of Indiana, where he serves on the board of editors of the Indiana Civil Litigation Review. The opinions expressed in this article are those of the author.