The Plaintiff purchased two small pet rats from a Petco Store in 2013.  The Plaintiff and her two minor children were frequently exposed to the rats, suffering scratches and coming into contact with the secretions of the rats.  The Plaintiffs allege that after coming in contact with the rats they suffered a rash, inflammation, and other flu like symptoms that required medical treatment.  They alleged that the rats carried a bacterium commonly known as “rat bite fever.”  The Plaintiffs sued Petco and SunPet, the supplier of the rats, asserting claims for assault, battery, negligence, products liability, intentional infliction of emotional distress, gross negligence, res ipsa loquitor and punitive damages.
 
The Defendants filed Motions to Dismiss the claims of assault, battery, intentional infliction of emotional distress and res ipsa loquitor, as well as the punitive damages claim. The Plaintiffs consented to the dismissal of the assault counts.  The court dismissed the battery claim maintaining that to find a retailer liable for battery based on the subsequent use of something it sold “would expose the courts to a flood of farfetched and nebulous litigation.”  The court also dismissed the intentional infliction of emotional distress claim on the grounds that the conduct did not rise to the level of “extreme or outrageous” so as to “go beyond all possible bounds of decency.”  The claim of res ipa loquitor was also dismissed as the court concluded that any discussion of res ipsa loquitor must be included in a broader discussion of Plaintiffs’ negligence claims, which were not at issue in the motion to dismiss.  Finally, the court dismissed the claim for punitive damages as the Plaintiffs were required to show “actual malice,” meaning “conscious and deliberate wrongdoing, evil or wrongful motive, intent to injure, ill will, or fraud.” The court held that the Plaintiffs did not plead enough facts to establish a punitive damages claim. Specifically, the Complaint did not allege facts which indicated that the Defendants actually knew the rats sold to the Plaintiffs were diseased.