Moning v. Alfono

254 N.W.2d 759, 400 Mich. 425

• Court: Michigan Supreme Court
• Decided: June 15, 1977
• Docket: 55669, (Calendar No. 1)
• Status: Published

Opinions

Levin, J.

Royal Moning, when he was 12 years old, lost the sight of an eye which was struck by a pellet fired from a slingshot being used by his 11-year-old playmate, Joseph Alfono.

There was evidence that Alfono purchased two l(ty-slingshots from defendant Campbell Discount Jewelry and had given one to Moning, and that the slingshots had been manufactured by defendant Chemtoy Corporation and distributed by defendant King Tobacco and Grocery Company.

Moning claims that it is negligence to market slingshots directly to children, and that the manufacturer, wholesaler and retailer are subject to liability.

The claim against the Alfonos was settled. Upon completion of Moning’s proofs, the trial judge directed a verdict for the remaining defendants. The Court of Appeals affirmed.

We remand for a new trial because a manufacturer, wholesaler and retailer of a manufactured product owe a legal obligation of due care to a bystander affected by use of the product, and whether defendants in violation of that obligation created an unreasonable risk of harm in marketing slingshots directly to children is for a jury to decide, reasonable persons being of different minds.

My colleague declares that there is no legal duty to refrain from manufacturing slingshots for and marketing them directly to children.

It obscures the separate issues in a negligence case (duty, proximate cause and general and specific standard of care) to combine and state them together in terms of whether there is a duty to refrain from particular conduct.

It is now established that the manufacturer and wholesaler of a product, by marketing it, owe a legal duty to those affected by its use. The duty of a retailer to a customer with whom he directly deals was well established long before the manufacturer and wholesaler were held to be so obligated. The scope of their duty now also extends to a bystander. All the defendants were, therefore, under an "obligation for the safety”¹ of Moning; they owed him a duty to avoid conduct that was negligent.

Whether it would be a violation of that obligation to market slingshots directly to children is not a question of duty, but of the specific standard of care: the reasonableness of the risk of harm thereby created.

Negligence is conduct involving an unreasonable risk of harm.

Slingshots pose a risk of harm. In manufacturing and marketing slingshots the defendants necessarily created such a risk.

The meritorious issues are whether the risk so created was unreasonable because the slingshots were marketed directly to children, and whether this should be decided by the court or by the jury.

The reasonableness of the risk of harm, whether analyzed or expressed in terms of duty, proximate cause or the specific standard of care, and whether regarded as one of law or fact or for the court or the jury to decide, turns on how the utility of the defendants’ conduct is viewed in relation to the magnitude of the risk.

If a court is of the opinion that marketing slingshots directly to children is of such utility that it should be fully protected, the court in effect determines as a matter of law that the risk of harm so created is not unreasonable and, therefore, such conduct is not negligent.

The resolution of the balance between the utility of children having ready-market access to slingshots and the risk of harm thereby created is an aspect of the determination of the reasonableness of that risk and of the defendants’ conduct, and should be decided by a jury:

—Reasonable persons can differ on the balance of utility and risk, and whether marketing slingshots directly to children creates an unreasonable risk of harm;

—The interest of children in ready-market access to slingshots is not so clearly entitled to absolute protection in comparison with the interest of persons who face the risk thereby created as to warrant the Court in declaring, as a rule of common law, that the risk will be deemed to be reasonable.

The statement that "we are being asked to perform a legislative task” because a holding for Moning "would in effect be making a value judgment and saying * * * [that slingshots] should not be manufactured or marketed”(emphasis supplied) to children assumes that allowing juries to decide the reasonableness of the risk of harm created by marketing slingshots directly to children will so burden the manufacture and marketing of slingshots that all manufacturing and marketing would cease, rather than merely affect the manner and cost of marketing slingshots, and does not take into account that however the Court decides the case it in effect makes a value judgment:

—Affirming a directed verdict for the defendants in effect expresses a value judgment that the interest of the child in ready-market access to slingshots is of such societal importance that as a matter of law it takes precedence over the interest in protecting persons exposed to the risk of harm so created, or that all reasonable persons would agree that the risk so created is not unreasonable.

—Reversing the directed verdict and holding that the issue should be decided by a jury is not an expression of a value judgment that slingshots should not be manufactured and marketed, but rather expresses a value judgment that all reasonable persons do not agree concerning the reasonableness of the risk so created and that the interest of the child in ready-market access is not of such overriding importance as to be entitled to absolute protection as a matter of law, and therefore a jury, applying the community’s judgment of how reasonable persons would conduct themselves, should make the ultimate value judgment of the risks and the societal importance of the interests involved in marketing slingshots directly to children.

However the Court decides this case, it necessarily makes a choice, even if the Legislature may later make a different choice.

If the issue is left to juries to decide, different juries will, indeed, reach different results, sometimes in cases appearing to be factually indistinguishable. The variant results may be more perceptible in this kind of case than in one where it may appear there are more variables. The preference for jury resolution of the issue of negligence is not, however, simply an expedient reflecting the difficulty of stating a rule that will readily resolve all cases; rather, it is rooted in the belief that the jury’s judgment of what is reasonable under the circumstances of a particular case is more likely than the judicial judgment to represent the community’s judgment of how reasonable persons would conduct themselves.²

If the experience should be that juries invariably reach one result, that may suggest the specific standard of care upon which "all” reasonable persons would agree.³ Until the community judgment is made so to appear, the principle that doubtful questions regarding the application of the standard of care should be decided by reference to the community judgment requires jury submission of the question so in doubt.

The law of negligence was created by common-law judges and, therefore, it is unavoidably the Court’s responsibility to continue to develop or limit the development of that body of law absent legislative directive. The Legislature has not approved or disapproved the manufacture of slingshots and their marketing directly to children; the Court perforce must decide what the common-law rule shall be.

I

Duty and Proximate Cause

While we all agree that the duty question is solely for the court to decide,⁴ the specific standard of care is not part of that question.

The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.

"Duty” comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include — where there is an obligation — the nature of the obligation: the general standard of care and the specific standard of care.

Dean Prosser observed: the duty. ” Prosser, Torts (4th ed), § 53, p 324 (emphasis supplied).

"It is quite possible, and not at all uncommon, to deal with most of the questions which arise in a negligence case in terms of 'duty.’ Thus the standard of conduct required of the individual may be expressed by saying that the driver of an automobile approaching an intersection is under a duty to moderate his speed, to keep a proper lookout, or to blow his horn, but that he is not under a duty to take precautions against the unexpected explosion of a manhole cover in the street. But the problems of 'duty’ are sufficiently complex without subdividing it in this manner to cover an endless series of details of conduct. It is better to reserve ’duty’ for the problem of the relation between individuals which imposes upon one a legal obligation for the beneñt of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. In other words, 'duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy

The statement in my colleague’s opinion that the "defendants did not owe plaintiff minor the asserted duty not to manufacture, distribute and sell slingshots” combines the separate questions of duty, general and specific standard of care and proximate cause: whether in marketing a product a manufacturer, wholesaler and retailer are under any legal obligation to a bystander (duty); the nature of that obligation (general standard of care: reasonable conduct "in the light of the apparent risk”); whether marketing slingshots directly to children is reasonable conduct (specific standard of care); whether marketing slingshots directly to children is "so significant and important a cause [of loss resulting from such marketing] that the defendant should be legally responsible”⁵ (proximate cause, a policy question often indistinguishable from the duty question).

Combining in one statement these different questions obscures the functions of the court and jury. While the court decides questions of duty, general standard of care and proximate cause, the jury decides whether there is cause in fact and the specific standard of care:⁶ whether defendants’ conduct in the particular case is below the general standard of care, including — unless the court is of the opinion that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy — whether in the particular case the risk of harm created by the defendants’ conduct is or is not reasonable.

Duty is essentially a question of whether the relationship⁷ between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person. Proximate cause encompasses a number of distinct problems including the limits of liability for foreseeable consequences.⁸ In the Palsgraf9 case, the New York Court of Appeals, combining the questions of duty and proximate cause,¹⁰ concluded that no duty is owed to an unforeseeable plaintiff.

The questions of duty and proximate cause are interrelated because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend in part on foreseeability— whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.

It is well established that placing a product on the market creates the requisite relationship between a manufacturer, wholesaler and retailer and persons affected by use of the product giving rise to a legal obligation or duty to the persons so affected. A manufacturer owes the consumer an obligation to avoid negligent conduct.¹¹ The obligation extends to persons within the foreseeable scope of the risk. In Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965), a bystander, injured when his brother’s shotgun barrel exploded, was permitted to maintain an action against the manufacturer, wholesaler and retailer of allegedly defective shotgun shells.¹²

A manufacturer, wholesaler and retailer of slingshots can be expected to foresee that they will be used to propel pellets and that a person within range may be struck. Moning, as a playmate of a child who purchased a slingshot marketed by the defendants, was within the foreseeable scope of the risk created by their conduct in marketing slingshots directly to children. Moning was a foreseeable plaintiff. The defendant manufacturer, wholesaler and retailer were under an obligation for the safety of Moning.

The question of proximate cause, like the question of duty, is "essentially a problem of law”.¹³ Most proximate cause problems are not involved in this case.¹⁴

Alfono’s conduct in using the slingshot to propel pellets was to be anticipated. "If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Prosser, supra, § 44, p 272.

By marketing slingshots directly to children, the defendants effectively created the risk that Alfono would use the slingshot. "Obviously the defendant cannot be relieved from liability by the fact that the risk, or a substantial and important part of the risk, to which he has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant’s responsibility.” Id, p 273.¹⁵

Alfono’s shooting pellets toward a tree and a ricochet into Moning’s'eye was within the "recognizable risk of harm” created by marketing slingshots directly to children.¹⁶

The ricochet was "a normal consequence of the situation” created by the defendants’ conduct.¹⁷

II

General Standard of Care Specific Standard of Care

Turning to a consideration of the nature of the obligation owed by a manufacturer, wholesaler or retailer, we note that this is not an ordinary products liability case where the plaintiff seeks to recover by proving a defect in the product without carrying the burden of proving fault or negligence. Moning’s claim is grounded in negligence. He asserts that his damage was caused by the fault of the defendants.

In a negligence case, the standard of conduct is reasonable or due care. 2 The Restatement Torts, 2d, § 283, provides: "[T]he standard of conduct to which [the actor] must conform to avoid being negligent is that of a reasonable man under like circumstances.” "[I]n negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Prosser, Torts, supra, § 53, p 324.

It is the application of that general standard of conduct to the marketing of slingshots to children, the specific standard of care — not whether there is a duty of due care in such marketing — that is the primary area of disagreement in this case.

Manufacturing and marketing slingshots necessarily creates a risk of harm. Moning does not, however, contend that manufacturing and marketing slingshots is negligence per se. His contention, rather, is that marketing them directly to children creates an unreasonable risk of harm.

Moning relies on the doctrine of negligent entrustment, one of the many specific rules concerning particular conduct that have evolved in the application of the general standard of care. A person who supplies an article to a child which may pose a reasonable risk of harm in the hands of an adult but which poses an unreasonable risk of harm in the hands of a child is subject to liability for resulting harm:

"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” 2 Restatement Torts, 2d, § 390.¹⁸

The common law has long recognized that a parent or other responsible adult who entrusts a potentially dangerous instrumentality to a child may be subject to liability.¹⁹ Liability "arises from [the defendant’s] active misconduct; he has actually created an unreasonable risk to others by placing a chattel in the hands of a person whose use thereof is likely to create a recognizable risk to third persons”.²⁰

The obligation "to guard or secure objects which are dangerous to children” arises "because of the likelihood of their own intermeddling”.²¹ Persons dealing with children must "take notice of the ordinary nature of young boys, their tendency to do mischievous acts, and their propensity to meddle with anything that came in their way”.²²

Special rules for children are not unusual. The attractive nuisance doctrine, an exception to the general rule limiting the liability of landowners for injuries to trespassers,²³ is based on the child’s inability to appreciate danger and his inclination to explore without regard to the risk. The doctrine does not depend on the landowner’s knowledge that the "individual” child is "incompetent”.

The doctrine of negligent entrustment is not peculiar to automobiles but rather an ordinary application of general principles for determining whether a person’s conduct was reasonable in light of the apparent risk.²⁴ It is grounded in the general principle that a reasonable person will have in mind the immaturity, inexperience and carelessness of children. If, taking those traits into account, a reasonable person would recognize that his conduct involves a risk of creating an invasion of the child’s or some other person’s interest, he is required to recognize that his conduct does involve such a risk. "He should realize that the inexperience and immaturity of young children may lead them to act innocently in a way which an adult would recognize as culpably careless, and that older children are peculiarly prone to conduct which they themselves recognize as careless or even reckless.” 2 Restatement, supra, § 290, comment k.²⁵

The issue whether the defendants are subject to liability cannot properly be taken from the jury on the supposition that an 11-year-old boy knows how a slingshot operates and, therefore, appreciates the risk.²⁶ Even if it is thought, without supporting evidence and as a matter of law, that children should be deemed to appreciate the risk, there still may be an unreasonable risk of physical harm to the child and others in marketing slingshots directly to them.

Entrusting potentially dangerous articles to a child may pose an unreasonable risk of harm not only because the child may not appreciate the risk or may not have the skill to use the article safely but — even if he does appreciate the risk and does have the requisite skill — because he may recklessly ignore the risk and use the article frivolously due to immaturity of judgment, exuberance of spirit, or sheer bravado.

"One has no right to demand of a child, or of any other person known to be wanting in ordinary judgment or discretion, a prudence beyond his years or capacity, and therefore in his own conduct, where it may possibly result in injury, a degree of care is required commensurate to the apparent immaturity or imbecility that exposes the other to peril. Thus, a person driving rapidly along a highway where he sees boys engaged in sports, is not at liberty to assume that they will exercise the same discretion in keeping out of his way that would be exercised by others; and ordinary care demands of him that he shall take notice of their immaturity and govern his action accordingly.” 3 Cooley, Law of Torts (4th ed), § 490, pp 433-434.

Just as the driver of an automobile is expected to take precautions for the safety of children playing near a highway even though children can be expected to appreciate the risk and the driver does not know that the individual children are incompetent to look after themselves,²⁷ so too a supplier can be expected in marketing a product to take precautions for the safety of children and others even if the child may be expected to appreciate the risk and individual children may both appreciate it and be skilled in using the product. It is for a jury to decide whether any negligence in marketing slingshots directly to children is a cause in fact of plaintiffs loss.²⁸

Ill

Reasonableness of the Risk of Harm

Even if a person recognizes that his conduct involves a risk of invading another person’s interest, he may nevertheless engage in such conduct unless the risk created by his conduct is unreasonable.

The reasonableness of the risk depends on whether its magnitude is outweighed by its utility. The Restatement provides: "Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.” 2 Restatement, supra, § 291.

The balancing of the magnitude of the risk and the utility of the actor’s conduct requires a consideration by the court and jury of the societal interests involved.²⁹ The issue of negligence may be removed from jury consideration if the court concludes that overriding considerations of public policy require that a particular view be adopted and applied in all cases.

A court would thus refuse to allow a jury to consider whether an automobile manufacturer should be liable for all injuries resulting from manufacturing automobiles on the theory that it is foreseeable that some 50,000 persons may be killed and hundreds of thousands injured every year as a result of manufacturing automobiles. The utility of providing automobile transportation is deemed by society to override the magnitude of the risk created by their manufacture. Similarly, a court might conclude that it would be violative of public policy to hold a manufacturer of slingshots liable for all injuries resulting from their use. The interest of mature persons who wish to purchase and use slingshots might be deemed to supersede the interest of those who may be harmed by their careless or improper use.

The issue in the instant case is not whether slingshots should be manufactured, but the narrower question of whether marketing slingshots directly to children creates an unreasonable risk of harm. In determining that question, the Court must first ask whether the utility of marketing slingshots directly to children so overrides the risk thereby created as to justify the Court in refusing to permit juries to subject persons who engage in such conduct to liability for the resulting harm. If it concludes that the utility does not, as a matter of law, override the risk, then the question of balancing utility and risk is for the jury to decide, again, as part of its consideration of the reasonableness of defendants’ conduct, unless the Court concludes that all reasonable persons would be of one mind on that question.

The Restatement suggests a number of factors that should be considered in balancing the utility of the actor’s conduct and the magnitude of the risk. First, the magnitude of the risk:

"In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:

"(a) the social value which the law attaches to the interests which are imperiled;

"(b) the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;

"(c) the extent of the harm likely to be caused to the interests imperiled;

"(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.” 2 Restatement, supra, § 293.

a) The law attaches a high social value to the interest of persons in unimpaired eyesight.

b) Slingshots are potentially dangerous. An expert witness, called by Moning, testified that the slingshots Alfono purchased were capable of launching projectiles at speeds exceeding 350 miles per hour. Slingshots cause hundreds of serious injuries each year to school-age children. Almost all these injuries are head or eye injuries and occur to children 5 to 14.³⁰ Experience therefore shows that marketing slingshots to children may with substantial frequency cause an invasion of the interest in unimpaired eyesight of a substantial number of persons.

c) The extent of the harm likely to be caused to the interest so imperiled may be of a most serious nature.

d) The number of persons whose interests are likely to be invaded is difficult to estimate, but it appears that hundreds of injuries, many resulting in serious impairment of vision, occur every year as a result of the use of slingshots by children.³¹

Turning to utility:

"In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:

"(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;

"(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;

"(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.” 2 Restatement Torts, 2d, §292.

a) There is a sharp difference of opinion concerning the social value of the child’s interest in having direct-market access to slingshots. The view that slingshots should not be sold or used by children is widely held and is reflected in statutes and ordinances prohibiting the sale of slingshots to or their use by minors.

Statutes and other legislative judgments may themselves be a source of common law. "This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.” Moragne v States Marine Lines, Inc, 398 US 375, 390-391; 90 S Ct 1772; 26 L Ed 2d 339 (1970).³² Similarly, see Williams v Polgar, 391 Mich 6, 14, 26-28; 215 NW2d 149 (1974).³³

North Carolina and Mississippi prohibit sale of a slingshot to a minor.³⁴ Idaho prohibits sale to a minor under 16 without parental consent.³⁵ Mississippi holds a father liable for allowing a son under 16 to have, own or carry concealed a slingshot.³⁶ Pennsylvania prohibits sale to and carrying by persons under 18 of an implement "which impels a pellet of any kind with a force that can reasonably be expected to cause bodily harm”.³⁷ Nine states prohibit any person from carrying a concealed slingshot.³⁸ A number of states consider slingshots to be deadly weapons and treat them under statutes prohibiting carrying concealed weapons.³⁹ Many cities regulate the sale and possession of slingshots.⁴⁰

Michigan empowers fourth class cities to "prohibit and punish the use of toy pistols, sling shots and other dangerous toys or implements within the city” (emphasis supplied).⁴¹ Nine cities in this state prohibit persons from possessing slingshots,⁴² five others prohibit possession by or sale to minors.⁴³ Those ordinances generally classify slingshots as "dangerous weapons”.⁴⁴

It is apparent from the legislation in other state and innumerable municipalities that all reasonable persons do not agree that marketing slingshots directly to children does not involve an unreasonable risk of harm. The failure of other states and cities to enact like statutes and ordinances, and of the Legislature either to authorize or prohibit the marketing of slingshots directly to children, indicates a variety of opinion, but not a consensus regarding the reasonableness of marketing slingshots directly to children.

b) Children are more likely to obtain slingshots if they are marketed directly to them.

c) Slingshots could be marketed in a manner designed to confine sale to adults and to exclude purchases by children. Instead of manufacturers, wholesalers and retailers effectively determining whether children shall have slingshots, an adult who generally would know the child would decide whether he is of sufficient maturity to have one; the adult would, under the common law, assume responsibility for any negligence on his part in entrusting a slingshot to the child.

Having in mind the parent’s interest in protecting the child from potentially dangerous instrumentalities⁴⁵ and in avoiding exposure to litigation such as befell the Alfonos, the child’s interest in an opportunity to use slingshots cannot be said as a matter of law to be inadequately advanced or protected by allowing a jury to decide that a manufacturer, wholesaler or retailer is negligent in marketing them directly to children.

Balancing the magnitude of the risk and the utility of the conduct in the application of the factors suggested by the Restatement, there is not a sufficient basis for concluding as a matter of law that the utility of the defendants’ conduct outweighs the risk of harm thereby created. The sharp difference of opinion regarding the balancing of utility and risk of harm requires submission of these questions for jury assessment as part of its consideration of the reasonableness of the risk of harm and of defendants’ conduct.

While "slingshots have a long history of association with the human race” and have been used for hundreds of years by both adults and children, the common law is not immutable, unable to respond to changes in society and technology.

"The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard [of reasonably prudent conduct] has been met. Such usage cannot, however, be determinative of the standard. As stated by Justice Holmes:

" 'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.’ Texas & PR Co v Behymer, 189 US 468, 470; 23 S Ct 622; 47 L Ed 905 (1903).” Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370; 189 NW2d 208 (1971).

As society becomes increasingly urbanized and access to open space decreases, the law responds and develops.

Modern technology may have magnified the risk of ricochet and of injury to persons not in the immediate range or direction in which the slingshot is aimed. Slingshots capable of firing projectiles at 350 miles per hour may be a far cry from those historically made by children from rubber bands and household paraphernalia.

Nor does calling a slingshot a "toy” make it any less dangerous nor immunize its marketing directly to children from the general rules of negligence liability.⁴⁶

There is a qualitative difference between slingshots and other projectile "toys” on the one hand, and baseball equipment and bicycles on the other. The latter are viewed by society essentially as are automobiles in that although children are injured and killed riding bicycles and playing baseball, the utility of such activity is regarded by society and all reasonable persons as outweighing the risk of harm created by their manufacture for and marketing to children. Statutes and ordinances do not prohibit the purchase or use of bicycles or baseball equipment by children. There is no ongoing debate, as there is about slingshots, whether children should have direct market access to bicycles or baseball equipment.

In sum, it cannot be said that there was no "obligation of reasonable conduct for the benefit of the plaintiff’,⁴⁷ or that all reasonable men would agree that defendants’ conduct was not "a substantial factor in producing the result”⁴⁸ or regarding "the foreseeability of [the] particular risk”⁴⁹ or regarding "the reasonableness of the defendants’ conduct with respect to it, or the normal character of [Alfono’s conduct]”⁵⁰ as an intervening cause.

Since reasonable persons can differ regarding the balance of risk and utility (the reasonableness of the risk of harm) and since there is no overriding policy based on social utility of maintaining absolute access to slingshots by children, we reverse and remand for a new trial.

Kavanagh, C. J., and Williams, J., concurred with Levin, J. Ryan and Blair Moody, Jr., JJ., took no part in the decision of this case.

1 See Prosser, Torts (4th ed), § 37, p 206, quoted in my colleague’s opinion.

2 "The reasonable man represents the general level of community intelligence and perception and the jury, being a cross-section of the community, should best be able to tell what that general level is.” 2 Harper & James, The Law of Torts, § 16.10, p 936. Similarly see, Prosser, supra, §37, p 207; Detroit & M R Co v Van Steinburg, 17 Mich 99, 120 (1868).

3 See Prosser, supra, § 35, p 188; 2 Harper & James, supra, § 17.2, p 971.

4 See Prosser, supra, § 37, p 206. See, also, Elbert v Saginaw, 363 Mich 463, 476; 109 NW2d 879 (1961).

5 Prosser, supra, § 42, p 244.

6 Id, § 45, pp 289-290; § 37, pp 205-208.

7 Id, § 42, p 244; Clark v Dalman, 379 Mich 251, 260; 150 NW2d 755 (1967).

8 See generally, H. L. A. Hart & A. M. Honoré, Causation in the Law (Oxford, Clarendon Press, 1973), ch IX.

9 Palsgraf v Long Island R Co, 248 NY 339; 162 NE 99; 59 ALR 1258 (1928).

10 Prosser, supra, § 43, p 254.

11 MacPherson v Buick Motor Co, 217 NY 382; 111 NE 1050 (1916).

12 "Agreeing as all of our recent decisions do with the developing weight of authority, the essence of which is that the manufacturer is best able to control dangers arising from defects of manufacture, I would say definitely that Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120 [90 NW2d 873 (1958)]; Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235 [109 NW2d 918 (1961)]; Barefield v La Salle Coca-Cola Bottling Co, 370 Mich 1 [120 NW2d 786 (1963)], and Hill v Harbor Steel & Supply Corp, 374 Mich 194 [132 NW2d 54 (1965)], have put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured as this plaintiff pleads, and that a person thus injured should have a right of action against the manufacturer on the theory of breach of warranty as well as upon the theory of negligence. ” Piercefield v Remington Arms Co, Inc, 375 Mich 85, 97-98; 133 NW2d 129 (1965) (emphasis supplied).

13 "[I]t is possible to approach 'proximate cause’ as a series of distinct problems, more or less unrelated, to be determined upon different considerations. The list, which is not necessarily exclusive, would include at least the following problems:

"1. The problem of causation in fact * * * .

"2. The problem of apportionment of damages among causes.

"3. The problem of liability for unforeseeable consequences * * * .

"4. The problem of intervening causes * * * .

"5. The problem of shifting responsibility * * * .” Id, pp 249-250.

14 See fn 13, supra; there is no issue of apportionment of damages, or of shifting responsibility to another person except insofar as defendants similarly situated might be free to leave the duty of protecting a person affected by a child’s use of a slingshot to adults were they to market slingshots in a manner designed to reach adults and not children; the issue of causation in fact is for a jury to resolve.

15 The Restatement illustrates the scope of the responsibility for delivering a potentially dangerous chattel to a child:

"A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.” 2 Restatement Torts, 2d, § 281, illustration to comment f on clause (b).

"If a gun is entrusted to a child, it suggests at once to anyone with imagination at all that someone, the child or another, is likely to be shot.” Prosser, supra, § 44, p 273.

16 2 Restatement, supra, § 281, comment f on clause (b).

"So far as scope of duty (or, as some courts put it, the relation of proximate cause) is concerned, it should make no difference whether the intervening actor is negligent or intentional or criminal. Even criminal conduct by others is often reasonably to be anticipated. After all, if I leave a borrowed car on the streets of New York or Chicago with doors unlocked and key in ignition, I am negligent (at least towards the owner) because of the very likelihood of theft. And if I lend a car to one known by me to be habitually careless I am negligent precisely because of the likelihood of his negligent operation of the car. Again the importance of the factor of foreseeability is not altered if the intervening act is that of plaintiff himself, nor is it if that act is a negligent one. When I lent my car to the careless driver, one of the risks that made me negligent was surely the chance that he might hurt himself. If he is barred from recovery for such hurt it is because of his contributory fault, not for want of a causal connection or because he is beyond the scope of my duty.” 2 Harper & James, supra, § 20.5, pp 1144-1146.

Similarly see Comstock v General Motors Corp, 358 Mich 163, 179; 99 NW2d 627; 78 ALR2d 449 (1959); Berry v Visser, 354 Mich 38, 47; 92 NW2d 1 (1958).

17 "The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.” 2 Restatement, supra, § 443.

"The word 'normal’ is not used in this Section in the sense of what is usual, customary, foreseeable, or to be expected. It denotes rather the antithesis of abnormal, of extraordinary. It means that the court or jury, looking at the matter after the event, and therefore knowing the situation which existed when the new force intervened, does not regard its intervention as so extraordinary as to fall, outside of the class of normal events.” Id, comment b.

18 The doctrine is not limited to plaintiffs whose "individual” propensities are known to the supplier. The comments following 2 Restatement, supra, § 390, show that the doctrine of negligent entrustment also applies to classes of persons. 2 Restatement, supra, § 390, comment b.

19 See, Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886, 894 (1934).

20 Id.

21 James, Scope of Duty in Negligence Cases, 47 NW U L Rev 778, 782 (1953). See Terranella v Union Building & Construction Co, 3 NJ 443; 70 A2d 753 (1950).

"A product designed to be used by adults who may be expected to exercise care may not be dangerous, but when intended to be placed in the hands of inexperienced children who may seek to enlarge their knowledge by experimentation of various and sometimes unexpected character, it may be a source of peril * * * .” Crist v Art Metal Works, 230 App Div 114, 117; 243 NYS 496, 499 (1930), aff'd 255 NY 624; 175 NE 341 (1931).

22 Note, Dangerous Toys, 64 Irish L Times 223, 224 (1930); 38 Am Jur, Negligence, § 40, pp 685-686.

23 See generally, Prosser, supra, § 59, p 364.

24 While the Restatement’s illustrations and the case law applying the doctrine of negligent entrustment largely concern suppliers of automobiles (see, e.g., Johnson v Cassetta, 197 Cal App 2d 272; 17 Cal Rptr 81 [1961]), it does not depend on the nature of the chattel. Fredericks v General Motors Corp, 48 Mich App 580, 585; 211 NW2d 44 (1973) (supply of dies to plaintiffs employer). See also Dee v Parrish, 160 Tex 171; 327 SW2d 449, 452 (1959); 65 CJS, Negligence, § 69, pp 949-950; cf. Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark L Rev 101, 107-108 (1966); Littlejohn, 1974 Annual Survey of Michigan Law: Torts, 21 Wayne L Rev 665, 681 (1975). Nor is the doctrine restricted to chattels classified as latently defective or inherently dangerous. Fredericks, supra, 584.

The Restatement sets forth a rule crystalized by the development of the common law concerning the liability of one who sells or entrusts devices to children who, because of their youth and inexperience, cannot be relied on to use them prudently, or because of their immaturity may not appreciate the risk of injury or have the skill to use such devices safely:

"At common law the legal principle is established that if one sells a dangerous article or instrumentality such as firearms or explosives to a child whom he knows or ought to know to be, by reason of youth and inexperience, unfit to be trusted with it, and who might innocently and ignorantly play with or use it to his injury, and injury does in fact result, he may be found guilty of negligence and consequently liable in damages.” Anno, Liability of Seller of Firearm, Explosive, or Highly Inñammable Substance to Child, 20 ALR2d 119, 124.

See also 79 Am Jur 2d, Weapons and Firearms, § 43, p 48.

"The common law imposes upon every one the duty of so using and disposing of his property as not to injure the person or property of another, and if one sells a dangerous article to a child whom he knows to be, by reason of his youth and inexperience, unfit to be trusted with it, and who probably might innocently and ignorantly play with it to his own injury, and injury does in fact result, he is liable in damages therefor.” McEldon v Drew, 138 Iowa 390, 392; 116 NW 147, 148 (1908).

In McEldon, the Court held that the seller of ten-cents worth of gun powder to a 12-year-old boy was liable for the injury to one of the boy’s eyes caused by an inadvertent explosion. See also Carter v Towne, 98 Mass 567; 96 Am Dec 682 (1868).

Entrusting other devices used by children as playthings may also give rise to liability. See Schmidt v Capital Candy Co, 139 Minn 378; 166 NW 502 (1918) (sparkler) (dictum); Bosserman v Smith, 205 Mo App 657; 226 SW 608 (1920) (fireworks); Gerbino v Greenhut-Siegel-Cooper Co, 165 App Div 763; 152 NYS 502 (1915) (airgun used on retailer’s premises); Semeniuk v Chentis, 1 Ill App 2d 508; 117 NE2d 883 (1954) (airgun; sale to parents, retailer knew that 7 year old would use); Krueger v Knutson, 261 Minn 144; 111 NW2d 526 (1961) (potassium chlorate); LaFaso v LaFaso, 126 Vt 90; 223 A2d 814 (1966) (cigarette lighter without fluid); Note, supra, 64 Irish L Times 223 (citing cases).

The only basis for distinguishing these cases from the instant case would be to conclude that there is a qualitative difference between the risk of entrusting such instrumentalities to children and the risk posed by marketing slingshots directly to children. In light of the frequency and severity of injuries to children attributable to slingshots, and the widely held view, expressed in statutes and ordinances, that children should not be entrusted with slingshots, there is no sound basis for creating, as a matter of law, such a distinction.

25 An actor "is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising (a) such attention, perception of the circumstances, memory, knowledge of other-pertinent matters, intelligence, and judgment as a reasonable man would have ** * * ” 2 Restatement, supra, § 289.

"For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know (a) the qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community * * * .” Id, § 290.

26 There is some evidence that one of the reasons slingshot injuries are experienced by children between the ages of 5 and 14 in disproportion to the populace generally is that the risk is not appreciated. See, Johnston, Perforating Eye Injuries: A Five Year Survey, 91 Transactions of the Ophthalmological Soc’y U K 895, 897 (1971); Kerby, Eye Accidents to School Children, 20 Sight-Saving Rev 2 (1950).

27 Reasonable precautions must be taken even though the actor does not know that an individual child is not competent and the child may appreciate the risk:

"And when children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. It may be anticipated that a child will dash into the street in the path of a car, or meddle with a turntable. It may be clear negligence to entrust him with a gun, or to allow him to drive an automobile, or to throw candy where a crowd of boys will scramble for it. There have been a number of 'pied piper’ cases, in which street vendors of ice cream, and the like, which attract children into the street, have been held liable for failure to protect them against traffic. It may be quite as negligent to leave the gun, or to leave dynamite caps, where children are likely to come, and can easily find them. In all such cases, the question comes down essentially to one of whether the risk outweighs the utility of the actor’s conduct. He may be required to guard a power line pole located in a public park, but not one in the open country; and whether he must take steps to prevent children from interfering with such an object as a stationary vehicle is entirely a matter of the circumstances of the particular case.” Prosser, supra, § 33, pp 172-173.

"In addition, people who have an ordinary amount of exposure to the facts of modern life in America will be treated as though they know many other things. The normal adult is held to have knowledge of the characteristics of animals common to his community, such as the proneness of mules to kick, the viciousness of bulls, and the propensity of mad dogs to bite. He is also required to be acquainted with the natural propensities of children,³⁵ the dangers incident to common sports, and the elements of the weather to which he is accustomed.

35 "35 Such as their heedlessness — Femling v Star Publication Co, 195 Wash 395; 81 P2d 293 (1938); the attractiveness of ponds of water—Davoren v Kansas City, 308 Mo 513; 273 SW 401; 40 ALR 473 (1925); the attractiveness of dangerous objects such as explosives—Wellman v Fordson Coal Co, 105 W Va 463; 143 SE 160 (1928); childish impulses—Louisville & NR Co v Vaughn, 292 Ky 120; 166 SW2d 43 (1943); climbing propensity — Deaton’s Administrator v Kentucky & West Virginia Power Co, 291 Ky 304; 164 SW2d 468 (1942); propensity of small children to wander into streets — Agdeppa v Glougie, 71 Cal App 2d 463; 162 P2d 944 (1945). Compare § 27.5 infra.”

28 A jury might conclude that because the child was skilled in the use of a slingshot and did not use it frivolously, the manner of marketing the slingshot was not the cause in fact of plaintiffs injury.

29 "Conduct is not negligent unless the magnitude of the. risk involved therein so outweighs its utility as to make the risk unreasonable. Therefore, one relying upon negligence as a cause of action or defense must convince the court and jury that this is the case.” 2 Restatement, supra, § 291, comment b (emphasis supplied).

30 Projections from one study indicate that nearly 66,000 school children in the United States during any 9-month school year suffer injuries to the eye. Over 4% of the reported injuries in a study carried out in Louisville were caused by slingshots and other weapons. Such instrumentalities were responsible for 17% of the more serious injuries. Kerby, supra, 20 Sight-Saving Rev, 3-4, 11.

Another study shows that "[t]here were an estimated 471 injuries related to slingshots and sling propelled toys during the period July 1, 1974-July 30, 1975, treated in United States hospital emergency rooms, all but 2 of which were head or eye injuries to victims under 15 years of age”. United States Consumer Product Safety Commission, Bureau of Epidemiology, Special Report: Injuries Associated with Products Which Have Projectiles (Draft, October 23, 1975), p 15. During the same time period, 2,120 injuries reported to hospital emergency rooms involved projectile products. Id, p 17.

The United States Consumer Product Safety Commission states that since "[sjlingshots range from toys to hunting models capable of killing small game * * * it is recommended that high powered slingshots be sold only to persons over 20 years of age”. Id, p 23. The commission concluded that "[ojverall, projectile products include a diverse array of products which while they share a common hazard are very different in age of users, intended use, and likelihood and consequences of misuse,” and that therefore "Commission action would be most effective” "in the area of toy guns and other toy weapons with projectiles and slingshots.” Id.

31 See fn 30, supra, and accompanying text.

32 The United States Supreme Court, relying on state statutes providing for wrongful death actions and overruling cases to the contrary, held that under general maritime law there was a cause of action for wrongful death.

State courts created an action for wrongful death in admiralty cases, based on statutes not, by their terms, applicable to maritime cases. In that context, judges were "awake to the purport of this legislative movement, eagerly seized upon principles derivable from 'natural equity’ and 'consonant * * * with the benign spirit of English and American legislation on the subject’ to mould admiralty law to conform with the trend of civilized thought”. Landis, Statutes and the Sources of Law, Harvard Legal Essays, pp 213, 226 (1934). Several state courts have relied on statutes in other jurisdictions as "the wiser and safer rule,” notwithstanding local common law to the contrary, in holding that a general devise operates to execute a power of appointment vested in the testator. Id, p 231.

Legislative judgments or trends and statutory changes may be relevant in assessing the "national conscience” in common-law and constitutional adjudication. See Furman v Georgia, 408 US 238, 298-299; 92 S Ct 2726; 33 L Ed 2d 346 (1972) (Brennan, J., concurring).

33 In extending the obligation of an abstractor to persons not in privity of contract, this Court relied in part on statutes of other jurisdictions so providing.

34 NC Gen Stat § 14-315; Miss Code Ann § 97-37-13.

35 Idaho Code § 18-3302.

36 Miss Code Ann § 97-37-15.

37 Pa Stat Ann, title 18, § 6304 (Purdon).

38 Alas Stat Ann § 11.55.010; Idaho Code § 18-3302; Miss Code Ann § 97-37-1; Mont Rev Codes Ann § 94-3525; Tenn Code Ann § 39-4901; Utah Code Ann § 76-23-4; NC Gen Stat § 14-269; SC Code § 16-23-460; RI Gen Laws § 11-47-42.

39 Alas Stat Ann § 11.55.010 (treated, along with pistols, firearms and daggers, under carrying concealed weapons statute); Del Code Ann, title 11, § 222(5) (defined to be a "deadly weapon”); DC Code Ann § 22-3217 ("dangerous article”); Idaho Code § 18-3302 (treated with "concealed and dangerous weapons”); Ind Code Ann § 35-1-79-1 (Burns) ("dangerous weapon”); Mass Laws Ann, ch 269, § 12 (sale prohibited, along with switch knife, sword cane, bludgeon and blackjack); Miss Code Ann § 97-37-1 ("deadly weapon”); Mont Rev Codes Ann § 94-3525 ("deadly weapon”); NJ Stat Ann §§ 2A:151-2, 2A:151-5 (West) ("weapon,” "dangerous instrument”); NC Gen Stat § 14-269 ("deadly weapon”); SC Code § 16-23-460 ("deadly weapon”); Tenn Code Ann § 39-4901 ("dangerous weapon”); Utah Code Ann § 76-23-4 ("deadly weapon”). See Ga Code Ann § 26-2901, committee notes, p 201.

40 39 Fed Reg 16707-16710 (1974).

41 MCLA 91.1; MSA 5.1740.

Home-rule cities possess the police power and thus there is no need for specific enabling legislation. MCLA 117.3; MSA 5.2073.

42 Belding ordinances, § 12.11; Buchanan ordinances, § 11.4; Center Line ordinances, § 8-108; Escanaba ordinances, § (D); Grand Haven ordinances, § 8-209; Hazel Park ordinances, § 15; Sterling Heights ordinances, § 7.(1); Trenton ordinances, § 9.171, and Warren ordinances, § 8-210. See 39 Fed Reg 16708-16710 (1974).

43 Gladstone ordinances, § 504.06 (prohibits possession, sale, or gift to persons younger than 18); Lake Orion ordinances, § 9 (prohibits sale, offer to sale, give away or distribute to persons under the age of 21); Port Huron ordinances, § 9.117 (prohibits parents to knowingly permit child under 18 to use or possess except under adult supervision); Waterford ordinances, § 61-IX (prohibits possession, sale or gift to persons younger than 21); Royal Oak ordinances, § 276.1(c) (prohibits selling or giving to persons under 16). See 39 Fed Reg 16707-16710 (1974).

44 See 39 Fed Reg, supra.

45 See generally 59 Am Jur 2d, Parent and Child, § 106, p 205 et seq.; Prosser, supra, § 125, p 888 et seq.

46 A slingshot is no more a toy than a sparkler, fireworks, an air gun or an empty cigarette lighter, yet courts have sustained liability for the entrustment of such articles to children. See fn 24, supra. Books prepared for parents speak of the dangers of such "toys”. See, e.g., Swartz, Toys That Don’t Care (Gambit, Inc, 1971), p 251. The toy industry has acknowledged its awareness of the risks; the industry’s proposed draft of Voluntary Product Standards for Toy Safety (May, 1972), while excluding slingshots from coverage, states that there are "[c]ertain well-recognized hazards inherent in such traditional toys as bows and arrows, slingshots and darts,” quoted in Swartz, Blindness in the Toy Box, 43 Sight-Saving Rev 95, 97 (1973).

47 Prosser, supra, § 45, pp 289-290.

⁴⁸

⁴⁹

⁵⁰

2 Harper & James, supra, § 16.5, pp 912-913.

The trier of fact decides whether reasonable precautions have been taken and thereby establishes the specific standared of care:

"The common formula for the negligence standard is the conduct of a reasonable man under like circumstances. In applying this standard under the instructions of the court, the jury normally is expected to determine what the general standard of conduct would require in the particular case, and so to set a particular standard of its own within the general one. This function is commonly said to be one of the determination of a question of fact, and not of law. It differs from the function of the court, however, only in that it is not reduced to any definite rules, so that the same conclusion will not necessarily be reached in two identical cases, and that it is a secondary function, performed only after the court has reached its initial conclusion that the issue is for the jury.” 2 Restatement, supra, § 328 C, comment on clause (b).