COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71553 ALAN MALICKI, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION WILLIAM KOCI, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT JULY 17, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 290086 JUDGMENT: Affirmed in part, Reversed in part. DATE OF JOURNALIZATION: _______________________________ APPEARANCE: For Plaintiffs-Appellants: For Defendants-Appellees: WILLIAM L. SUMMERS, ESQ. MICHAEL G. CURTIN, ESQ. JOSEPH D. RUSSO, ESQ. Keller and Curtin Co., L.P.A. 28001 Chagrin Blvd., Ste. 300 330 Hanna Bldg.1422 Euclid Ave. Cleveland, Ohio 44122-4425 Cleveland, Ohio 44115-12901 For Defendant Animal House: For Defendant Animalkins, Inc.: GREGORY H. COLLINS, ESQ. HENRY A. HENTEMANN, ESQ. Davis & Young JOHN P. O'DONNELL, ESQ. 101 Prospect Avenue, W., Meyers,Hentemann,Schneider& REA Ste. 1700 2100 Superior Bldg., Cleveland, Ohio 44115 815 Superior Ave.N.E. Cleveland, Ohio 44114 For Defendant Texas Bird Wholesalers: ALAN R. BARNES, ESQ. Kronick Moskovitz Tiedemann & Girard 400 Capitol Mall, Sacramento, CA 95814 - 2 - PATRICIA ANN BLACKMON, J.: The issue before this court is whether a manufacturer, a wholesaler, and a retailer are liable for selling a parakeet that caused its owner's illness. The trial court granted summary judgment to all of the named and unnamed defendants. We conclude the trial court correctly granted summary judgment to all of the defendants except the retailers. The following errors have been assigned for our review: I. APPELLEE'S MOTIONS FOR SUMMARY JUDGMENT MUST BE OVERRULED BECAUSE THE AFFIDAVITS OF APPELLANT'S AND APPELLEE'S OPPOSING EXPERTS PRESENT SEVERAL MATERIAL ISSUES WHICH MUST BE DECIDED BY THE TRIER OF FACT. II. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE TEXAS BIRD'S MOTION FOR SUMMARY JUDGMENT BECAUSE PET ANIMALS ARE CONSIDERED PRODUCTS FOR STRICT LIABILITY PURPOSES. After reviewing the record and the arguments of all of the parties, we affirm in part and reverse in part. The apposite facts follow. On May 8, 1993, Dawn Hody purchased a parakeet from The Pet Experts, which was formally known as Animalkins, Inc., a division of Pet Villa, Inc. and owned by Damel and Lorna Buxton, also defendants in this action. She gave the parakeet to her parents, Alan and Linda Malicki, plaintiffs-appellants. Thereafter, they both were diagnosed with psittacosis. Psittacosis or parrot fever is an infectious disease of birds, especially parrots, characterizedby diarrhea, loss of appetite, wasting, and ruffling of feathers. It is sometimes submitted to man where its symptoms - 3 - include headache, nausea, epistaxis, constipation, and feve by a chill, and usually with added symptoms orpreceded bronchopneumonia. The causal agent is Chlamydia psittaci. Stedman's Medical Dictionary (5th Ed. 1982), 1163. They filed this lawsuit naming both named and unnamed defendants.1The complaint alleged that, at the time of purchase, the parakeet was diseased or infected with psittacosis. The Malickis alleged that, shortly after they received the parrot, they became ill and had to be hospitalized for treatment of psittacosis. They also alleged the defendants violated R.C. 941.06(C), which provides that no person shall sell, or otherwise transfer to another an animal which he knows or has reason to know, is infected with or exposed to any dangerously contagious or infectious disease. The defendants denied any knowledge that the bird was ill when sold. Texas Bird Wholesalers ( TBW ) filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted or, in the alternative, for summary judgment. TBW argued they did not manufacture the bird, there was no evidence the bird had psittacosis, and the bird appeared healthy upon visual inspection. TBW attached the affidavit of Dr. Robert Schmidt, a 1Daniel and Lorna Buxton dba Animalkins, Inc., a division of Pet Villa, Inc., the original owners who sold their inventory (which included this parakeet) to William and Denise Koci, dba Pet Experts; the parakeet was purchased by the retailer from wholesaler, Richard Clayton, dba Animal House, who received the bird from wholesalers, Texas Bird Wholesalers, Inc. All of these individuals were named as defendants including unnamed John Doe and John Doe, Inc. as designer, manufacturer, supplier, seller or otherwise involved with the sell of this parakeet. - 4 - veterinarian specializingin anatomic pathology. Schmidt concluded the bird's tissue samples showed no signs of psittacosis. In response to TBW's motion to dismiss, the Malickis presented the affidavit of Dr. Ram Mohan, a virologist with the Animal Disease Diagnostic Lab at Ohio State University. Mohan concluded the bird was in the sub-clinical phase of psittacosis and, had acted as a carrier of the disease and transmitted it to the Malickis. The trial court granted TBW's motion to dismiss on the claim against TBW as manufacturer of the bird but denied the motion as it pertained to the rest of the Malickis' claims. The remaining defendants filed motions for summary judgment,2 alleging they did not know or have reason to know the bird was infected because it showed no signs of disease. They also argued they used ordinary care by visually inspecting the bird, providing it with food and water, keeping its cage clean, etc. They also argue there was no evidence the bird was ill, if at all, at the time they possessed it. The defendants also alleged the Malickis failed to go forward with evidence that their illness was caused by the bird. On October 7, 1996, the trial court granted summary judgment in favor of all of the defendants except TBW. Two days later, the trial court granted summary judgment in favor of TBW on all of the Malickis' claims. This appeal followed. 2 Animal House's motion for summary judgment is not a part of the record. However, in their February 26, 1996 Brief in Opposition to Animal House's Motion for Summary Judgment, the Malickis acknowledge the motion was filed on December 20, 1995. - 5 - Before we address assignment of error one, we will first address the issue raised in assignment of error two, which is whether a pet is a product for strict liability purposes. The Malickis ask this court to adopt the position that a pet is a product for purposes of strict liability. They urge that we follow Sease v. Taylor's Pets (1985), 74 Or. App. 110, 700 P.2d 1054; Beyer v. Aquarium Supply Co. (1977), 94 Misc.2d 336, 404 N.Y.S.2d 778; and Worrell v. Sachs (1989), 41 Conn. Sup. 179, 563 A.2d 1387; these courts have held an animal is a product' for strict liability purposes. We, however, disagree. In Latham v. Wal-Mart Stores, Inc. (1991), 818 S.W.2d 673, the court held a parrot was not a product for products liability purposes stating that due to their mutability and their tendency to be affected by the purchaser, animals should not be products under S 402A as a matter of law. The Latham court followed Anderson v. Farmers Hybrid Co., Inc. (1980), 87 I11.App.3d 493, 408 N.E.2d 1194. [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 - 6 - development. Thus, living creatures have no fixed nature *** at the time they enter the stream of commerce. Sease at 1057. We agree with the reasoning in Latham and in Anderson, and conclude a parrot is not a product for purposes of products liability. Imposing 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. Liability may, however, still be imposed upon such defendants for the sale or distribution of animals under a theory of negligence. Consequently, the Malickis' assignment of error two is overruled. In this case, the Malickis only offered expert testimony as to the negligence of the retailer. They did not offer any evidence as to negligence of the wholesaler/supplier or manufacturer or breeder. Besides, the facts in this case show that this parakeet was caged with a bird that had died days before. The Malickis, however, did offer the affidavit of their expert who offered his opinion as to the negligence of the retailer: The standard of care for retail seller pet shop owners is one of ordinary care. A pet shop owner should know that parakeets may carry chlamydia and yet exhibit no outward signs of illness or symptoms. Psittacosis is a potentially deadly public health hazard. Purchasers of parakeets should be notified at the time of purchase by the seller that the parakeet may be a carrier of Chlamydia. Sellers should recommend that a newly purchased bird must be examined by an avian veterinarian especially for zoonotic diseases - 7 - at the expense of the purchaser. Thus, the expert's affidavit raises a question of fact as to whether there is a duty to warn of a latent defect, which, if known or constructively known, constitutes a breach of duty of ordinary care to a business invitee. The Malickis' first assigned error as to the seller-retailer is sustained. Judgment affirmed in part and reversed in part. It is ordered that Appellee and Appellant share the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Domestic Relations Division of Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES D. SWEENEY, C.J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .