Sease v. Taylor's Pets, Inc.

• Citation: 700 P.2d 1054,74 Or.App. 110
• Decision Date: 26 July 1985
• Docket Number: Nos. A8107-04299,s. A8107-04299
• Parties: , 63 A.L.R.4th 113, Prod.Liab.Rep. (CCH) P 10,621 Shirley SEASE; Janice Sease; and Betty Nelson, Plaintiffs, v. TAYLOR'S PETS, INC., a Minnesota corporation; Robert Taylor and Joan Taylor and Perfected Pets, Inc., an Oregon corporation, dba the Alley Cat Pet Center, Defendants, and Milbank Mutual Insurance Company, a corporation, Third-Party Defendant. Nora THAYER (previously known as Nora Woolcott); Paula Hill and D. Bradford Hill, Respondents, v. PERFECTED PETS, INC., an Oregon corporation, dba the Alley Cat Pet Center, Inc.; Taylor's Pets, Inc., a Minnesota corporation; and Robert Taylor and Joan Taylor, husband and wife, Appellants, and Milbank Mutual Insurance Company, a corporation, Third-Party Defendant. ; CA A29230 , A8107-04440; CA A29416.
• Court: Court of Appeals of Oregon

Page 1054

700 P.2d 1054

74 Or.App. 110, 63 A.L.R.4th 113,

Prod.Liab.Rep. (CCH) P 10,621

Shirley SEASE; Janice Sease; and Betty Nelson, Plaintiffs, v. TAYLOR'S PETS, INC., a Minnesota corporation; Robert Taylor and Joan Taylor and Perfected Pets, Inc., an

Oregon corporation, dba the Alley Cat

Pet Center, Defendants,

and

Milbank Mutual Insurance Company, a corporation, Third-Party

Defendant.

Nora THAYER (previously known as Nora Woolcott); Paula Hill and D. Bradford Hill, Respondents, v. PERFECTED PETS, INC., an Oregon corporation, dba the Alley

Cat Pet Center, Inc.; Taylor's Pets, Inc., a

Minnesota corporation; and Robert

Taylor and Joan Taylor,

husband and wife, Appellants,

and

Milbank Mutual Insurance Company, a corporation, Third-Party

Defendant.

Nos. A8107-04299; CA A29230 [control], A8107-04440; CA A29416.

Court of Appeals of Oregon.

Argued and Submitted Sept. 14, 1984.

Decided June 5, 1985.

Review Denied Aug. 8, 1985.

Reconsideration Denied July 26, 1985.

Richard L. Grant, Buell, Black & Dupuy, argued the cause for appellants Taylor's Pets, Inc., and Robert and Joan Taylor.

Patrick N. Rothwell, Portland, argued the cause for appellant Perfected Pets, Inc. With him on the briefs were Hallmark, Griffith & Keating, P.C., Portland.

Donald A. Greig, Portland, filed the brief for respondents. With him on the brief was McClaskey & Greig, Portland.

Before JOSEPH, C.J., and WARDEN and NEWMAN, JJ.

NEWMAN, Judge.

Defendants appeal judgments of $20,000 each for plaintiffs Nora Thayer, Paula Hill and Bradford Hill in a products liability action. ¹ Plaintiffs' actions had been consolidated for trial with a separate action of Shirley Sease, Janice Sease and Betty Nelson, who also obtained judgments against defendants but who settled pending appeal.

From the evidence the jury could have found these facts. On June 21, 1979, Janice bought a pet skunk from defendant Perfected Pets, Inc., a pet shop in Portland. It had purchased the skunk earlier in June from defendants Taylor's Pets, Inc., and Robert and Joan Taylor (Taylor's Pets), who had raised it on their Minnesota pet farm. Janice kept the skunk in her house and occasionally took it to the homes of the other plaintiffs. Nine or ten days after Janice bought it, it began to attack and bite people, lose fur and develop sores on its body. It bit Paula. Although it did not bite Nora, she handled it, fed it and came into contact with its saliva. The skunk also did not bite Paula's 16-year-old brother, Brad, but he came in contact with the skunk's saliva, because he handled the skunk at a time when he had open cuts and scratches on his arms from cutting blackberry bushes. Moreover, during play, the skunk had licked Brad several times with its tongue and also had stuck its nose in Brad's mouth. The skunk bit Janice and Shirley, and Betty came in contact with its saliva.

Janice and Paula took the skunk back to Perfected Pets. Janice asked if she was caring for the animal properly. Perfected Pets advised Janice to change the skunk's diet and she took it home again. The new diet had no effect, however, and the skunk died nine or ten days later. Janice took it to a veterinarian for an autopsy. Both the Oregon State Health Division and the Washington State Health Department confirmed that it was rabid. Dr. Williams of the Oregon State Health Division testified that the skunk had probably been in the incubation stage of rabies when it had left the pet farm in Minnesota.

Until recently, prophylactic rabies treatments consisted of 21 daily injections of duck embryo vaccine with boosters. ² Injections ordinarily were made in the abdomen. The shots could cause intense pain at the site of the injection, nausea, headaches, muscle aches and mild temperature elevations. Occasionally the shots caused anaphylactic shock and neuroparalytic accidents. If a person were infected with rabies and did not undergo treatment, death was almost certain. The vaccine, however, did not always prevent rabies.

A doctor from the Oregon State Health Division ordered rabies treatments for Nora and Paula and others whom the skunk had bitten or who had been exposed to its saliva. Because of his history of allergies, Brad's family physician concluded that the injections could cause anaphylactic shock and death and advised against them. He did not take the injections.

Nora experienced severe reactions to the vaccine. She suffered welts and bruises at the site of the injections. She received injections on top of welts and bruises from earlier injections. During the course of the treatment she experienced constant nausea and vomiting, lost between 20 and 25 pounds, could not watch television and could not drive a car because of motion sickness from the treatments. She had medical costs and lost wages totaling $1,006.20. Paula experienced nausea, soreness, irritability and pain connected with welts at the site of the injections. She had medical costs of $325.90. Both Paula and Nora were aware that their lives were endangered even after taking the treatments. Paula became withdrawn and reclusive because of worry.

Brad worried because he could not take the shots. He had to stay under the constant observation of his family. He testified that his anxiety caused him to lose sleep, but it did not limit his physical activities or cause him to lose wages or incur medical expenses. ³ None of the plaintiffs contracted rabies.

Nora, Paula and Brad's complaint was based on strict products liability. ORS 30.920. ⁴ It did not allege breach of warranty or that any defendant engaged in intentional or negligent misconduct. Shirley, Janice and Betty's complaint alleged breach of warranty in addition to strict liability.

Throughout the trial, defendants often raised identical objections, and the trial court considered motions and objections stated by counsel for Perfected Pets to have been stated as well for Taylor's Pets. On appeal, however, Perfected Pets and Taylor's Pets submitted separate briefs. They raise six common assignments of error, and we also consider four other assignments of Perfected Pets. Three of the common assignments of error are directed at all of the plaintiffs. Defendants assert that a live animal is not a "product" and that the court, therefore, erred when it denied motions for a directed verdict at the close of plaintiffs' case and at the close of all the evidence and motions for judgment notwithstanding the verdict. These assignments are the only ones that Taylor's Pets asserts against Nora and Paula. Accordingly, if the skunk is a "product," Taylor's Pets' appeal against Paula and Nora fails.

All of the remaining assignments relate to whether one or more of plaintiffs may recover damages for some aspect of the emotional distress that they suffered. Three are common assignments of error, concern only Brad and assert that because he suffered no "physical harm" he may not recover for emotional distress and that the trial court erred, therefore, when it denied motions for a directed verdict at the close of Brad's case and at the close of all the evidence and for judgment notwithstanding the verdict.

Perfected Pets' four separate assignments are that the court erred when it failed to give two requested jury instructions respecting plaintiffs' claims of emotional distress, failed to strike plaintiffs' "allegations" of emotional distress "relating to the fear of death" and denied its pretrial motion to dismiss Brad's claim because it asserts that he only alleged that he suffered "emotional distress" damages.

We turn first to the issue of whether a live animal is a "product" under ORS 30.900 et seq. It is a question of first impression in Oregon. In Illinois, live animals are not products within products liability law. In Anderson v. Farmers Hybrid Co., Inc., 87 Ill.App.3d 493, 42 Ill.Dec. 485, 408 N.E.2d 1194, 1199 (1980), the defendants sold diseased pigs, which subsequently infected and caused the death of several other pigs in the buyer's lot. The court stated:

"[T]he changeable nature and health of living creatures, and the potential effect of events and conditions outside the control of the seller on such creatures, lead us to conclude that the trial court was correct in finding that the gilts at issue in this case are not products for purposes of imposing strict liability in tort under Section 402A. While a 'product' may be unchanged from its natural state, viable, and not the result of manufacturing processes, it must also be of a fixed nature at the time it leaves the seller's control. * * * Living creatures, such as the swine in the instant case, are by their nature in a constant process of internal development and growth and they are also participants in a constant interaction with the environment around them as part of their development. Thus, living creatures have no fixed nature in the same sense as the blood or the mushrooms can be said to have a fixed nature at the time they enter the stream of commerce."

See also Whitmer v. Schneble, 29 Ill.App.3rd 659, 331 N.E.2d 115 (1975).

New York, however, has held that a claim can be stated for strict liability for the sale of diseased hamsters. Beyer v. Aquarium Supply Co., 94 Misc.2d 336, 404 N.Y.S.2d 778 (N.Y.Sup.Ct.1977). Although Beyer does not address the argument in Anderson v. Farmers Hybrid Co., supra, that living creatures do not have a fixed nature at the time they enter the stream of commerce, the court stated:

"[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defective manufactured product. The risk presented to human well-being by a diseased animal is as great and probably greater than that created by a defective manufactured product and in many instances, for the average consumer, a disease in an animal can be as difficult to detect as a defect in a manufactured product." 404...