[s213062]

Missouri state law defines a product liability claim in statutes sections 537.760 to 537.765, the term "products liability claim" means a claim or portion of a claim in which the plaintiff seeks relief in the form of damages on a theory that the defendant is strictly liable for such damages because:
(1) The defendant, wherever situated in the chain of commerce, transferred a product in the course of his business; and
(2) The product was used in a manner reasonably anticipated; and
(3) Either or both of the following:
(a) The product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold; or
(b) The product was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and the plaintiff was damaged as a direct result of the product being sold without an adequate warning.
The above statue is a strict liability statute in Missouri. Not all courts agree that animals are products for strict liability purposes. Missouri adopted the Second Restatement of Torts, § 402A in Keener v. Dayton Electric Mfg. Co., Section 402A provides:
Special Liability of Seller of Product for Physical Harm to User or Consumer
(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.
In Latham v. Wal-Mart Stores, Inc., the court answered the question of whether a parrot was a product for purposes of § 402A. The court held “due to their mutability and their tendency to be affected by the purchaser, animals should not be products under § 402A as a matter of law.” I disagree with this court’s ruling because a plaintiff can meet the burden of proving the product was defective when it left the seller’s hands. To not provide the plaintiff with this remedy allows all sellers engaged in the business of selling animals to sell diseased animals without any liability. The court should have at least provided the plaintiff with a rebutable presumption.
Other courts disagree with the Missouri holding in Latham v. Wal-Mart Stores, Inc., and hold that an animal may be a product for purposes of § 402A. “There is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for its actions than one who markets a defectively manufactured product.” In Worrell v. Sachs, the court held a puppy could be treated as a product for purposes of strict liability. In this case a diseased puppy was sold carrying a parasite that caused serious eye damage and loss of vision to a child exposed to the puppy. The court reasoned through testimony of an expert witness it can be established through the stages of disease if the animal was infected at the time of purchase. In Sease v. Taylor’s Pets, Inc. the court held a pet shop could be held strictly liable for damages caused by the sale of a rabid skunk. The court interpreted § 402A to (1) provide a defense for defendants whose animals had undergone substantial change after sale and (2) provide more certain protection to consumers injured by animals where diseased conditions might not be apparent to consumers. In my opinion these courts have made an accurate analysis in defining animals as products.
The Third Restatement of Torts, not yet adopted by Missouri, defines “product” as follows:
(a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement.
(b) Services, even when provided commercially, are not products.
(c) Human blood and human tissue, even when provided commercially, are not subject to the rules of this Restatement.
The Third Restatement of Torts does specifically reference animals sold in a diseased condition. However it does state, “But when a living animal is sold commercially in a diseased condition and causes harm to other property or to persons, the animal constitutes a product for purposes of this Restatement.”
Warranties and Contract Claims
As mentioned earlier animals are defined under the definition of goods in the Uniform Commercial Code. The U.C.C. provides several contract claims that could potentially be used in purchasing a defective product.
The implied warranty of merchantability in U.C.C. § 2-314 provides, “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” The goods must also be fit for ordinary purposes for which such goods are used. A puppy if defined as a “good” would fall under this section and would come with an implied warranty of merchantability. However, a seller may be able to exclude the implied warranty of merchantability in the purchase contract by U.C.C. § 2-316. A seller may exclude implies warranties by including expressions such as “with all faults” or “as is,” or any other language that calls the buyer’s attention to the exclusion of warranties. If such language is included the purchaser may be able to argue U.C.C. § 2-302 the contract is unconscionable. A court will use several factors to determine if a contract was unconscionable such as prevention of oppression, unfair surprise, the presence of unequal bargaining power between the parties, the allocation of risk, the commercial needs of the particular trade, and public policy reasons.