Latham v. Wal-Mart Stores, Inc.

• Decision Date: 24 September 1991
• Docket Number: WAL-MART,No. 59064,59064
• Citation: 818 S.W.2d 673
• Parties: , Prod.Liab.Rep. (CCH) P 12,961 James D. LATHAM and Roberta M. Latham, Plaintiffs/Appellants, v.STORES, INC. and Charles Bezoni and General Petco Corporation and Gators of Miami (Third-Party Defendant), Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 673

818 S.W.2d 673

60 USLW 2252, Prod.Liab.Rep. (CCH) P 12,961

James D. LATHAM and Roberta M. Latham, Plaintiffs/Appellants, v. WAL-MART STORES, INC. and Charles Bezoni and General Petco

Corporation and Gators of Miami (Third-Party

Defendant), Defendants/Respondents.

No. 59064.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 24, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 30, 1991.

Application to Transfer Denied Dec. 17, 1991.

Thomas J. Casey, St. Louis, for plaintiffs/appellants.

Stefan J. Glynias, Jeffrey Keith Fischer, Lisa Green, St. Louis, for defendants/respondents.

GARY M. GAERTNER, Presiding Judge.

Appellants, James and Roberta Latham, appeal a grant of summary judgment in favor of respondents, Wal-Mart, Inc., and Charles Bezoni on appellants' product-liability claim. We affirm.

On or about January 22, 1987, appellant, Roberta Latham, ordered a parrot at a Wal-Mart store managed by respondent, Charles Bezoni. Respondents claim that this transaction was unusual because they do not normally sell parrots, and because the bird had to be specially ordered. This was done at the express request of appellant Roberta Latham, who was an employee of that particular Wal-Mart store.

The bird was delivered to Wal-Mart on or about February 24, 1987. Appellant was notified of the delivery and picked up the bird within 30 minutes. Both respondents allege the bird was never removed from its container, nor handled by them in any way.

On November 4, 1988, appellants filed suit against three parties: Wal-Mart, the retailer of the bird; Charles Bezoni, the manager of the individual store which sold the bird to the employee-appellant; and General Petco, the corporation from which Wal-Mart received the bird. General Petco impleaded Gators of Miami, Inc. as a third-party defendant. In their petition, appellants alleged that, at the time they received the bird, it was infected with psittacosis, a disease transmittable to humans, which is much like pneumonia. Appellants further contend that James Latham, Roberta Latham's husband, contracted psittacosis from the bird, and displayed various pneumonic symptoms (fever, nausea, loss of appetite, etc.). Appellants also claimed damages for mental anguish, permanent impairment of all bodily functions and loss of consortium. Appellants pled the foregoing suit in strict liability based on the theory the parrot constituted an unreasonably dangerous and defective product.

On March 13, 1989, the Circuit Court of the City of St. Louis granted a motion for summary judgment on behalf of respondents. On September 14, 1990, appellants dismissed their claims against General Petco and the third-party defendant Gators of Miami, Inc., pursuant to a settlement agreement. The September 14, 1990, dismissal effectively resolved all issues pertaining to all parties in the litigation and rendered the grant of summary judgment of March 13, 1989, final and appealable. Appellants now appeal the grant of summary judgment in favor of Wal-Mart and Charles Bezoni.

In their brief, appellants claim the trial judge erroneously granted summary judgment based on RSMo § 537.762 (Supp.1988). Appellants claim the Act covers only those claims which accrued after July 1, 1987, while the instant cause of action accrued on February 24, 1987, the date James Latham allegedly contracted psittacosis.

In this assertion, appellants are undoubtedly correct. RSMo § 537.762 (1988) was not intended to apply retroactively. The Act reads, "The provisions of sections ... 537.760 to 537.765 ... shall apply to all causes of actions [sic] accruing after July 1, 1987." However, in addition to asking the trial court to dismiss the appellants' petition pursuant to RSMo § 537.762, the respondents' motion also requested in the alternative, that the trial court grant summary judgment in their favor "as the pleadings and affidavits herein show there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law." Thus, respondents moved either for a dismissal without prejudice, for which they relied on RSMo § 537.762, or summary judgment, for which they claimed no issues of material fact were before the court.

Since the trial court granted summary judgment rather than dismiss appellants' claims, this court presumes appellants' claims survived the motion to dismiss and the trial judge found that the respondents were entitled to judgment as a matter of law. The main issue presented arises under the Restatement (Second) of Torts, § 402A, adopted in Missouri in 1969. Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969). 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.

Restatement (Second) of Torts § 402A. This court believes the issue presented is whether a living animal can be a "product" under the Restatement. This question, though a subject of some controversy in several states, is one of first impression in Missouri. We begin our analysis by reviewing the decisions reached by other courts.

The issue of whether an animal fits within § 402A's definition of a product first arose in Whitmer v. Schneble, 29 Ill.App.3d 659, 331 N.E.2d 115 (1975). In this dog-bite case, the plaintiffs alleged that the defendants were strictly liable for selling them an unreasonably dangerous product. The Illinois court disagreed, holding inter alia, that although a product under § 402A need not be manufactured, and may be a viable thing, its nature must be fixed when it leaves the manufacturer's or seller's control. Whitmer, 331 N.E.2d at 119. The court went on to cite the policy behind imposition of strict liability, namely, that the costs of injuries resulting from defective products be borne by those who market such products, rather than by the injured persons, who are powerless to protect themselves. Id. The court concluded that the above purpose would be defeated if strict liability were applied to products whose character could be changed and shaped by the purchaser rather than the seller. Id. Thus, the Illinois court held, as a matter of law, that animals could not be "products" under the Restatement.

Two years later, a New York court reached a different result on the same issue, this time in the guise of diseased hamsters. Beyer v. Aquarium Supply Co., 94 Misc.2d 336, 404 N.Y.S.2d 778 (N.Y.Sup.Ct.1977). Denying a motion to dismiss, the New York court noted that the reason for strict products liability is to equitably distribute the inevitable consequences of commercial...