Opinion
No. 77-112
Decided March 2, 1978.
From jury verdict for defendant in products liability action against the manufacturer of "BB" pistol, plaintiffs appealed.
Affirmed
1. PRODUCTS LIABILITY — Injury to Teenager — During BB Gun Fight — Danger Readily Apparent — No Warning Required — No Claim For Relief — Stated. Where products liability action against BB gun manufacturer was premised on incident in which plaintiff, a fourteen-year-old boy, was struck in eye by BB pellet during BB gun fight, the potential for danger in a BB gun was readily apparent and a warning for the obvious is not a requirement of the doctrine of products liability; thus, neither plaintiffs' complaint nor the evidence introduced in support thereof stated a claim for relief.
2. PRACTICE AND PROCEDURE — No Claim for Relief — Stated or Proved — Action — Should Have Been Dismissed — Jury Verdict — For Defendant — Judgment Affirmed. Since, in products liability action, neither plaintiff's complaint nor the evidence presented in support thereof stated a claim for relief, the action should have been dismissed at the close of plaintiffs evidence, but since the matter was submitted to the jury which found for defendant, the correct result was reached, and thus the judgment entered thereon may be affirmed.
Appeal from the District Court of the County of El Paso, Honorable William E. Rhodes, Judge.
Madsen, Smith Rome, P.C., Gerald M. Madsen, Robert A. Smith, for plaintiffs-appellants.
Tilly Graves, Charles Q. Socha, for defendant-appellee.
Plaintiffs appeal from an adverse judgment entered on a jury verdict, and we affirm.
Plaintiffs' claim against defendant, Victor Comptometer Corporation, arose in connection with an eye injury which plaintiff William E. Bookout suffered during a "BB gun fight" he had with two other young boys. Defendant manufactures and sells "Daisy BB guns."
The weapon involved was a "BB" pistol which was a Christmas present for Steven Lawson from his parents. At this time Steven also had a "BB" rifle and shot the weapons quite often; in fact, he purchased his "BB" pellets in lots of approximately 2,000. Steven and William Bookout fired the air rifle and the BB pistol in Steven's basement the night before William's injury. The next day, prior to William's injury, Steven accompanied William and Michael Bookout on their paper route during which time William Bookout used the BB pistol to shoot out a street lamp. Later in the day the boys engaged in the BB gun fight in which William Bookout was injured.
The boys had agreed that Steven and Michael would fire at William with the pistol and William would fire at them with the air rifle. The purpose of the fight was to strike each other with pellets; however, they agreed to aim below the waist so as not to run any risk of hitting each other in the eye. One of the BBs fired from the pistol struck plaintiff, then 14 years of age, in his right eyeglass lens, shattering the lens and sending slivers of glass into his right eye. The vision in that eye was eventually lost.
Plaintiffs press two claims against defendant — one under the Restatement (Second) of Torts § 402(a) based on defendant's failure to have adequate warnings on the package containing the gun, and one under § 402(b) based on the argument that the labelling which was on the package was misleading. Defendant answers that plaintiff, by voluntarily engaging in the BB fight, unreasonably used the product with knowledge of the dangers it posed.
On appeal, plaintiffs' claim errors in the admission of certain testimony and in some of the jury instructions.
We have reviewed the record and are of the opinion that, if this were a proper case for application of Restatement (Second) of Torts § 402(a) or (b), the court did not err in giving any instruction or in receiving any evidence. Further, we conclude that the jury reached the correct result, but that the court, since there was no justifiable claim for relief against the defendant manufacturer, should have granted defendant's motion for a directed verdict at the conclusion of plaintiffs' case.
Bojorques v. House of Toys, Inc., 62 Cal. App. 3d 930, 133 Cal. Rptr. 483, dealing with a slingshot injury, is directly in point:
"Is the slingshot defective because it did not have a warning it was dangerous? Strict liability is imposed where there are patent or latent defects which make a product unreasonably dangerous to users or consumers (Restatement of Torts, 2d, § 402A). In some instances, the manufacturer of an unreasonably dangerous product may insulate himself from strict liability by adding a warning or giving directions on the container which keep the product from being deemed unreasonably dangerous. But the seller does not need to add a warning when 'the danger, or potentiality of danger is generally known and recognized.' For example, it is unnecessary to warn persons of the dangerous nature of alcohol (Restatement of Torts, 2d § 402A Comment j; Barth v. B. F. Goodrich Tire Co., 265 Cal. App. 2d 228, 245, 71 Cal. Rptr. 306) Is the potential danger of a slingshot generally known? Ever since David slew Goliath young and old alike have known that slingshots can be dangerous and deadly. ( See Morris v. Toy Box, 204 Cal. App. 2d 468, 472 Cal. Rptr. 572 [bow and arrow].) There is no need to include a warning; the product is not defective because it lacked a warning; there is no cause of action in strict liability."
[1] Similarly here, the potential for danger inherent in a BB gun is readily apparent and a warning for the obvious is not a requirement of the doctrine of products liability.
[2] Thus, neither plaintiffs' complaint nor the evidence introduced in support thereof stated a claim for relief, and plaintiffs' complaint should have been dismissed at the conclusion of plaintiffs' evidence. Accordingly, since the jury arrived at the correct result, the judgment entered thereon is affirmed. See Klipfel v. Neill, 30 Colo. App. 428, 494 P.2d 114.
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE PIERCE specially concurring.