The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[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 defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.