Pankey v. Petco Animal Supplies, Inc. (June 24, 2020, D072779) [previously published at 51 Cal.App.5th 61]
Plaintiff filed a products liability claim against Petco Animal Supplies, Inc., after his son contracted a rare bacterial infection from a rat purchased at Petco. His son later died as a result of complications related to his infection. Plaintiff alleged, among other things, that Petco was strictly liable for injuries resulting from the sale of the pet rat, which he argued was a product for purposes of strict products liability. The trial court instructed the jury on negligence under ordinary negligence and negligent failure-to-warn theories, as well as three theories of strict products liability: (1) failure to warn, (2) manufacturing defect, and (3) design defect under a risk-benefit test. The jury returned verdicts in favor of Petco.
On appeal, Plaintiff asserted that the trial court erred by refusing to instruct the jury on an alternative strict liability design defect theory, the consumer expectations test. He argued there was sufficient evidence from which the jury 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 Court of Appeal affirmed.  It 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. Because it affirmed on that basis, it didn’t reach any conclusion regarding the applicability of the consumer expectations test or the prejudicial effect of its exclusion, but indicated that if it did reach that issue, it would affirm.