This case presents a novel question: Is a pet animal a “product” under Connecticut’s product liability law, General Statutes § 52-572m et seq.?
Thе complaint alleges serious eye damage and loss of sight by a child resulting from exposure to a diseased, parasite-carrying рuppy purchased by the child’s mother from the defendant’s pet shop. The defendant moves to strike, arguing that a dog is not a product within the meaning of § 52-572 et seq. of the General Statutes.
“Product” is not defined by that law. Nor are there relevant Connecticut cases. Other jurisdictions which considered the issue have split.
The defendant relies on Illinois cases and a federal case in which the courts disapprоved applying product liability laws to a transaction involving live animals. Noting the changing nature of living creatures which constantly interact with their environment, the courts in
Whitmer
v.
Schneble,
The approach of the Illinois courts appears to prove too much. This court believes these cases inadequately analyze the interrelationship between mutability and product status. See note, “The Applicability of Strict Products Liability to Sales of Livе Animals,” 67 Iowa L. Rev. 803 (1982).
*181 While § 402A makes mutability of the product highly significant on the issue of liability in any particular case, it does not speak to the question of product status. Since liability provisions require that the product reach the consumer without substantial change in its condition, a рlaintiff cannot prove a case under this theory in the face of such change. But it does not necessarily follow logically that inability to prove a case because of mutability means that an animal is not a product at all. Rather it means that liability may not attаch to that particular product. The argument confuses proof of liability with status.
Not all product change provides exemption — only substantial change. Moreover, General Statutes §
52-5721
et seq. and analogous product statutes do apply to products which аre susceptible to a change in character over time (e.g., food products, pressurized bottles, etc.). The Restatement
1
аnd product liability statutes clearly anticipate and make provision for the effects of a change in character; seе, for instance, General Statutes § 52-572p (“[limitation of liability of product seller”); note, supra, 67 Iowa L. Rev. 803; providing for exemption from liability in applicable cases. Without doubt, a product can undergo sufficient change that its seller will be shielded from strict liability in tort. See
Hanlon
v.
Cyril Bath Co.,
On the other hand, it is entirely possible that in a given case, expert opinion can establish that because of the stage in which a diseasе appears, the animal must have been similarly infected prior to sale. Thus, externally caused change may be testimonially eliminated as an exemption. Similarly, a rider thrown by a horse suffering from an inadequately healed leg fracture dat *182 ing to a time prior to sale might logically oppose any attempt to defeat his claim grounded upon a mutability argument. See note, supra, 67 Iowa L. Rev. 803.
In Kaplan v. C Lazy U Ranch, 615 F. Sup. 234, 236 (D. Colo. 1985) where a dude ranch client was injured by an unruly horse, the court held that generally, living things are not “products” within the scope of the doсtrine of strict tort liability which requires that a product’s nature be fixed when it leaves the seller’s control. The case is distinguishable. A diseased condition of an animаl is a defect more relevant to an animal as a product than is an animal’s behavior, which is not a condition inherent in the animal but a response to any number of environmental factors. Kaplan is inapposite to the facts of this case.
In two fairly recent cases courts have found that a live animal is a product for purрoses of product statutes, and both cases concern
pets
sold to consumers. In the first, a New York case,
Beyer
v.
Aquarium Supply Co.,
In
Sease v. Taylor’s Pets,
*183 Because the present case involves injury to a consumer by a diseased pet, the reasoning of Beyer and Sease are persuasive. The New York and Oregоn decisions provide a realistic guide for determining the issue before us.
The court is mindful that Connecticut’s public policy has already developed in this direction. The Uniform Commercial Code recognizes that animals are “goods.” In General Statutes § 42a-2-105, the legislature sеt forth that “ 'Goods’ also includes the unborn young of animals and growing crops. . . .” The case law bears this out. See
Alpert
v.
Thomas,
643 F. Sup. 1406 (D. Vt. 1986) (Arabian stallion);
Clifton Cattle Co.
v.
Thompson,
In Public Acts 1988, No. 88-325, codified as Gеneral Statutes § 22-344b, the so-called “Pet Lemon Law,” the legislature clearly addresses pets as consumer products. This act requires рet store owners to perform periodic physical examinations upon pets in their custody and holds sellers responsible for diseased pets. Financial responsibility under the act is limited to the cost of the pet and does not extend to injuries to the buyer. Since the legislature is presumed to know the law, it can be argued that it did not also provide for injuries caused by the pet since that was already covered under the product liability law. In any event, the legislature holds pets to be products, and correspondingly, consumers may nеed protection from them.
*184 This court finds that a pet, under the circumstances of this case, is a product within the meaning of Connectiсut’s product liability laws. 2
The motion to strike is denied.
Notes
The product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” 2 Restatement (Second), Torts § 402A, comment 8 (defective condition).
The court notes the practical approach proposed by the note, “The Application of Strict Products Liability to Sales of Live Animals,” 67 Iowa L. Rev. 803, 821 (1982), which argues that a rebuttable presumption of inapplicability will permit compensation when the claimant can show that the pet’s mutability did not significantly contribute to the defect.