When the Cat Can’t Read the Label

A Portland pet owner has sued a local store for inadvertently poisoning his cat. The owner bought flowers for his wife. Unfortunately, the cat ate a lily, which is toxic to cats, from the package, and had to be taken to the vet for treatment. (It reportedly has recovered with no long-term injuries.) The owner is alleging the store and the grower sold an unreasonably dangerous product and were negligent in their handling of it. This article examines the potential arguments that might be made in this case.

Assuming that no one has misrepresented the character of the flowers, there are three major potential arguments that could be used in a case such as the lily-eating cat. First, the buyer could argue that the flowers were not “merchantable,” under the laws governing sale of goods generally. Second, he could argue that the flowers were unreasonably dangerous under product liability law. Third, he could argue that the seller or grower failed to take proper care that lilies would not be made available to cats.

Merchantability

The law states that if a merchant sells goods, the sale includes a warranty that the goods are of minimally decent quality to be sold. (The law does allow this warranty to be limited or disclaimed, which is why limited warranties and “as is” sales are allowed.) There are two reasons why the cat owner did not raise this issue. First, I am not certain a court would say that whether a flower was toxic to cats would affect whether it could be sold. Many plants may be toxic to particularly animals – or to people – and this doesn’t necessarily mean they aren’t salable. Second, since the laws governing sales of goods were developed and enacted in the 1950’s and 1960’s, the question of merchantability has tended to be interpreted to refer to commercial or consumer losses, not injuries or property damage. Instead, product liability law has diverged from the merchantability concept to cover personal injury.

Product Liability

The law of product liability has evolved since the 1960’s to prohibit the sale and marketing of unreasonably dangerous products. If a ladder breaks because the wood was defective, or it wasn’t properly designed to take the user’s weight, or the warnings about load were insufficient, the person who falls off usually can sue for the resulting damages. As this example shows, there are three major categories of defects that a product may have: that it wasn’t built to design; that the design was faulty; or that it should have had a warning that it didn’t. The case of the lily-eating cat appears to focus on the warnings and the design.

In Oregon, whether a design or a warning is faulty is tested according to whether a consumer would expect the product to meet a particular standard. That makes a design argument difficult in the lily case; I’m not sure the average consumer would or would not expect to find a toxic plant, and lilies are not unheard of in floral arrangements. On the other hand, a warning argument might be more viable if, as alleged, the packaging warned that the flowers were toxic to people. It is not a short step from there to “toxic to pets,” but it is possible the average consumer might assume from the absence of a warning about pets that the flowers were OK for cats.

In Washington, the law is a bit more complicated. Effectively, a failure to manufacture as designed is grounds for strict liability against the manufacturer or seller. A design is faulty if the risk and seriousness of harm outweighs the burden to make it safe (with an exception in the statute for guns). A warning at the time of sale is faulty if the risk and seriousness of harm are such that the warning wouldn’t have been enough to prevent the harm, and a better warning would have. These tests differ from the consumer’s expectation test used in Oregon. Also, in Washington, if the manufacturer or seller learns of a risk, it has a duty to make a reasonable attempt to warn the public after sale. I think that under the Washington test, the lily case would probably be enough for a possible claim on at least warnings, and possibly design (the lilies could be replaced by something else).

Negligence

Finally, an argument could be made that the manufacturer or seller was simply negligent in its handling of the flowers. Essentially, this means that the actual conduct of the manufacturer or seller in its packaging, design, or warnings was unreasonably dangerous. It is slightly different from product liability in that the focus is not on the flowers, but on the florist’s actions. In most cases, this subtle difference won’t be important, but in this case it may be. I think an argument can be made that a florist should know that cats may eat plants to self-medicate, so a toxic flower should be excluded, or a warning given to keep out of reach of cats. Based on this, I think that a reasonable argument can be made that the store or grower was negligent.

Product liability cases can be difficult. In general, you’re more likely to require a lawyer who specializes in this kind of case  if the question is a complicated design issue. A manufacturing problem or an easy to understand warning may be more easily handled by non-specialist lawyers. In general, if you think you’ve been harmed by a defective product, consider talking to a lawyer, but don’t be surprised if the lawyer warns you that the case may require out of pocket expenses.

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