Sherk v. DAISY-HEDDON, ETC.

450 A.2d 615, 498 Pa. 594, 1982 Pa. LEXIS 565

• Court: Supreme Court of Pennsylvania
• Decided: August 23, 1982
• Docket: 81-1-43
• Status: Published

Opinions

OPINION

ROBERTS, Justice.

This is an action in trespass filed by the administratrix of the estate of James Sherk against appellant-defendant Daisy-Heddon in the Court of Common Pleas of Allegheny County on counts of strict liability, Restatement (Second) of Torts § 402A, misrepresentation, Restatement (Second) of Torts § 402B, and negligence. The administratrix, the appellee on this appeal, seeks damages for the death of James Sherk, who died after having been struck in the head by a “B-B” fired from a Daisy Power King Model 880 pump-up air rifle by Robert Saenz, a friend of the decedent. At trial appellee proceeded against appellant on the theory that appellant, the manufacturer of the air rifle, had failed to provide an adequate warning of the rifle’s lethal propensity and that the alleged failure to warn of the lethal propensity of the air rifle had caused James Sherk’s death. At the close of the evidence, the trial court submitted the case to the jury with instructions on the count of strict liability, but denied appellee’s request that the jury be instructed on the counts of misrepresentation and negligence.

The jury returned a verdict in favor of appellant, but on appeal a panel of the Superior Court (Lipez, J., dissenting) reversed the judgment entered upon the verdict and remanded for a new trial. 285 Pa.Super. 320, 427 A.2d 657 (1981). The Superior Court upheld the trial court’s refusal to submit the count of misrepresentation to the jury,¹ but deemed a new trial to be necessary because, in its view, the trial court had improperly refused to charge the jury on negligence and had erroneously excluded evidence of the “community’s perception” that BB guns previously marketed by appellant had been non-lethal.²

Because the evidence presented at trial, including plaintiff-appellee’s own evidence, precluded a finding that the allegedly inadequate warnings accompanying the Power King air rifle caused James Sherk’s death, we conclude that the Superior Court erred in disturbing the judgment of the trial court. Hence, we reverse the order of the Superior Court and reinstate the judgment entered upon the jury’s verdict in favor of appellant.³

I

While the Superior Court properly held that a plaintiff may proceed on theories of both negligence and strict liability, see Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), it erroneously concluded that the trial court’s failure to charge on negligence or to admit the challenged evidence requires a new trial. Liability in negligence or strict liability is not imposed upon a manufacturer simply for the manufacture of a defective product. Rather, the plaintiff must demonstrate that the injuries sustained were proximately caused by the product’s defect. See Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also Kuisis v. Baldwin-Lima-Hamilton Corp., supra. The claimed “defect” in the Daisy Power King Model 880 pump-up air rifle was the alleged failure on the part of appellant Daisy-Heddon to provide an adequate warning of the Power King’s lethal propensity. Although appellee proceeded on the theory that if the lethal propensity had been known, Robert Saenz would never have directed the Power King at James Sherk’s head, appellee’s proof established facts from which it must be concluded that Robert Saenz was legally chargeable with knowledge of the Power King’s lethal propensity.

Robert Saenz, who was fourteen years old on the day of the shooting, testified that on that day he and James Sherk had been firing the Power King at glass bottles and tin cans from a distance of fifteen to twenty feet. Robert Saenz was aware that “depending] on how many times you pumped [the rifle] up,” the BBs fired from the rifle could shatter the bottles and pierce through the cans. He also testified that he had known that the air rifle was “some[what more] powerful” than the spring BB guns he had previously used. Moreover, he knew that a BB fired from the Power King could blind a person and that he should never point a gun at anyone. Indeed, Robert Saenz testified that he had expected to use the Power King to kill rabbits and rats. He had been told by his father and mother not to use the Power King until his father had instructed him in its use. On the day of the shooting, Robert Saenz used the gun without permission and without having read the instructions accompanying the Power King.⁴

Robert Saenz was familiar with the operation of the Power King. He knew that in order for air to be pumped into the rifle, the bolt had to be opened and the manual safety device had to be pushed to the “on” position, in which position the red mark indicating that the rifle was ready to fire would not be visible. He also knew that the trigger would not fire the rifle when the bolt was open or when the safety was pushed to the “on” position. Robert Saenz admitted that, when he had directed the Power King at the decedent, he knew that the Power King had been pumped with air. He testified that he “just didn’t bother” to check the position of the safety device. Instead, he pushed the safety device and “just assumed that it went on safe.” In fact, he had pushed the safety from the “on” to the “off” position, thereby enabling the rifle to fire.

Robert Saenz testified that he had stood five feet from the decedent, who was sitting on the ground, and that he had pointed the barrel of the Power King at the decedent’s head. He testified that he had “called Jimmy’s name,” intending that James Sherk would turn and look at him, and then “squeezed the trigger, thinking the safety was on.” Robert Saenz further testified, “I was just horsing around, intended to scare him. I was just fooling around.” He said that, when he directed the rifle at James Sherk’s head, he knew that “this was something that [he] shouldn’t be doing” and “this was something that could injure [his] friend.”

This evidence makes it clear that the Power King air rifle was misused by Robert Saenz in a manner that Robert Saenz knew could cause serious bodily injury. Despite his knowledge that BBs fired from the Power King could kill animals and blind a person, Robert Saenz directed the Power King from close range at James Sherk’s head.

Where, as here, the lethal propensity of a gun was known or should have been known to the user, liability cannot be imposed upon the manufacturer merely because the manufacturer allegedly has failed to warn of that propensity. As stated by Dean Prosser,

“[t]here appears to be no reason to doubt that strict liability has made no change in the rule, well settled in the negligence cases, that the seller of the product is not to be held liable when the consumer makes an abnormal use of it. Sometimes this has been put on the ground that the manufacturer has assumed responsibility only for normal uses; sometimes it has gone off on ‘proximate cause.’ ”

Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 824 (1966) (footnote omitted). See Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974) (“a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use”); Restatement (Second) of Torts § 402A comment h (1965) (“A product is not in a defective condition when it is safe for normal handling and consumption.”). Thus, because this record demonstrates that Robert Saenz is legally chargeable with sufficient appreciation of the nature of the risk of his misuse of the Power King, he is exclusively responsible for the consequences of his misuse.

II

Appellee cannot prevail on the theory that if the parents of Robert Saenz had known of the Power King’s lethal propensity, they would not have permitted Robert Saenz to have possession of the Power King and thus be in a position to misuse it. The Power King was purchased by Mrs. Saenz from a mail order catalogue at the request of Robert and his older brother Wayne. Mrs. Saenz testified that she had “no knowledge of guns,” and did not know “what BB guns look like.” She purchased the Power King air rifle without consulting or informing her husband, at a time when her son Wayne “just hit [her] at the right moment with the proper approach.” When the rifle arrived in the mail, Mrs. Saenz did not open the box or read the instructions. Instead, the box “was put away,” and Mrs. Saenz directed her sons that the gun was not to be used until their father had instructed them in its use. Later that week, Mr. Saenz looked at the gun but did not read the operation and instruction manuals accompanying the Power King. Mr. Saenz testified that he had told Robert not to point the gun at anyone and not to use the gun until he had been instructed by him in its use. Mr. Saenz had intended to read the instructions and to instruct his children in the use of the gun on the upcoming Saturday, the day that the shooting took place.⁵

In Ucci v. Keane, 402 Pa. 467, 167 A.2d 147 (1961), this Court stated:

“[I]t is well established that ‘Proof of injury alone, without more, or of the existence of the negligent condition without showing that it caused the injury complained of, is insufficient to establish a case of liability.’ Burns v. City of Pittsburgh, 320 Pa. 92, 94, 181 Atl. 487 (1935). It is not enough that a defect exist which could not, even conceivably, have caused the accident. ‘Proving that an accident happened, or the existence of an opportunity for it to happen in the manner alleged, is entirely insufficient to establish negligence: Stern v. Reading, 255 Pa. 96, 99 Atl. 367 (1916). Plaintiff must go further and show not only defendant’s negligence, but that the injuries complained of were the result of such negligence.’: Houston v. Rep.Ath.Assn., 343 Pa. 218, 220, 22 A.2d 715 (1941).”

Id., 402 Pa. at 471-72, 167 A.2d at 150. On this record it is clear that the alleged “defect” in the warnings accompanying the Power King air rifle did not cause James Sherk’s death. Robert Saenz had possession of the Power King only because he had disobeyed his parents’ directions not to use the rifle. Notwithstanding his own knowledge of the Power King’s lethal propensity, his knowledge that the rifle should never be pointed at anyone, and his failure to check the position of the safety mechanism, he directed the Power King from close range at James Sherk’s head. As this record establishes that James Sherk’s death did not result from the allegedly inadequate warnings accompanying the Power King, appellant was entitled to a verdict in its favor on all counts.

Ill

Because the evidence refutes appellee’s contention that James Sherk’s death was caused by the allegedly inadequate warnings accompanying the Power King, the exclusion of evidence regarding the “community’s perception” of BB guns other than the Power King air rifle marketed under the Daisy trademark did not adversely affect appellee’s case. Thus, it is unnecessary to address the question of the admissibility of evidence of the “community’s perception” of a manufacturer’s products. Cf. Ucci v. Keane, supra, 402 Pa. at 472-73, 167 A.2d at 150 (plaintiff’s failure to show “proximate cause as between the alleged negligence and the injuries sustained,” makes it “unnecessary to discuss the standard and degree of care owing from the seller of goods to a foreseeable user”).

Order of the Superior Court reversed. Judgment of the Court of Common Pleas of Allegheny County entered upon the jury’s verdict in favor of appellant reinstated.

FLAHERTY, J., did not participate in the consideration or decision of this case. HUTCHINSON, J., joins in this opinion and files a concurring opinion. McDERMOTT, J., concurs in the result. LARSEN, J., files a dissenting opinion in which O’BRIEN, C. J., joins.

1 . No appeal has been taken from this aspect of the Superior Court’s ruling.

2 . Plaintiff had sought to demonstrate through the excluded evidence that the lethal propensity of the Daisy Power King air rifle would not generally have been known by the public without a warning to that effect. See Restatement (Second) of Torts § 402A comment j (1965) (warning not required “when the danger, or potentiality of danger, is generally known and recognized”). The excluded evidence included advertisements of Daisy products other than the Power King that had not been seen by Robert Saenz or his parents.

Plaintiff did establish the non-lethal propensity of previously marketed Daisy products through the testimony of the Director of Product Evaluation and the Director of Research and Development for Daisy-Heddon.

3 . This case was reassigned to this writer on June 28, 1982.

Robert Saenz testified on behalf of plaintiff-appellee, as did his parents, June and Michael Saenz. Both Robert Saenz and his parents were also additional defendants, having been joined by appellant. The trial court directed a verdict in favor of Mr. and Mrs. Saenz and the jury returned a verdict in favor of Robert Saenz along with its verdict in favor of appellant. The parties do not challenge the determinations relating to Robert Saenz and his parents.

4 . The evidence also establishes that on two other days during the week of the shooting Robert Saenz had used the Power King without his parents’ permission.

5 . The operation and instruction manuals accompanying the Power King were introduced into evidence. The cover of the operation manual stated: “Built for greater power — much more powerful than other non-powder guns.” The text of the operation manual further stated:

“The Pump-Up Air Gun is a new, much more powerful type gun than the traditional Daisy spring-air B* B gun. It shoots with four to six times the power of the spring-air B»B gun and must be treated with great care and respect.

ALWAYS HANDLE A GUN AS IF IT WERE LOADED. ‘Handling’ means every time you touch your gun. It also means you must never point your gun toward any living thing nor at any part of your own body nor at anything that could be damaged by an accidental shot.

The more you pump your Daisy, the higher the velocity of the B*B or pellet when it is fired. Two or three pumps are recommended for indoor target shooting. Higher velocity for outdoor shooting can be achieved by pumping the gun up to ten strokes.

CAUTION: Due to the additional power of the Pump-up Air Gun, extra precaution is required in selecting a safe target. You must pick a target that cannot be penetrated or cause a ricochet. Spring-air B *B gun targets are not considered a safe target for the Pump-up Air Gun. Hard surfaces will cause a ricochet.”

The instruction manual also stated:

“Never point a gun at anyone. Never point a gun at anything you do not want to shoot. Never point your Daisy at any living thing.”

Mr. Saenz testified that, had he read these allegedly inadequate instructions, the instructions would “have made a difference to him.” He testified that he would have learned of the Power King’s “accuracy and velocity” and “would have never let them use it, period. I would have sent it back.”

Robert Saenz testified that he, too, had not read the allegedly inadequate instructions accompanying the Power King: “I was just too eager to take it out, that’s all.”