Brown v. Daisy Mfg. Co.

• Decision Date: 08 November 1989
• Docket Number: No. 88-CV-997.,88-CV-997.
• Citation: 724 F. Supp. 44
• Parties: Jeffrey BROWN, Plaintiff, v. DAISY MANUFACTURING COMPANY, Defendant.
• Court: U.S. District Court — Northern District of New York

724 F. Supp. 44

Jeffrey BROWN, Plaintiff, v. DAISY MANUFACTURING COMPANY, Defendant.

No. 88-CV-997.

United States District Court, N.D. New York.

November 8, 1989.

Setright & Ciabotti, Syracuse, New York (Victor J. Ciabotti, of counsel), for plaintiff.

Smith, Sovik, Kendrick, Schwarzer & Sugnet, P.C., Syracuse, New York (Laurence F. Sovik, of counsel), for defendant.

MEMORANDUM DECISION AND ORDER

McAVOY, District Judge.

FACTS

The following facts do not appear to be in dispute. On April 14, 1982 at about 8 p.m., Robert Conroy, then 13 years old, pointed a Daisy Model 25 Air Rifle in the direction of Jeffrey Brown who was then 12 years old and playing hide and seek with Robert Conroy's sister. The gun accidentally went off and Brown was shot in the eye with a BB. The gun, manufactured by defendant Daisy Manufacturing Company and purchased in 1962 had no safety. As a result of the injury, Jeffrey Brown lost his left eye.

The plaintiffs brought the present action in the district court against Daisy under the Consumer Product Safety Act alleging that the gun was defective because it lacked a safety mechanism and the defect created a substantial product hazard. The plaintiff alleges that the rules of the Consumer Product Safety Commission require every manufacturer of a consumer product distributed in commerce who obtains information which reasonably supports the conclusion that the product either fails to comply with applicable consumer product safety rules or contains a defect which could create a substantial product hazard, immediately inform the commission. By failing to inform the Commission, the complaint continues, the Commission was prevented from requiring that the manufacturer recall the gun and/or modify it and further give notice to the public of the defect so that they could be aware of the fact that the gun lacked a safety. The facts as alleged constitute a violation of the reporting requirements of the Consumer Product Safety Act (hereinafter "CPSA") contained in 15 U.S.C. § 2064(b), and reporting rules of the Consumer Product Safety Commission (hereinafter "CPSC"), 16 C.F.R. § 1115.12(c) and (e) (1987).

The plaintiff also contends that in addition to the missing safety, the gun was also defective because there were no warnings on it that it did not have a safety; and the public should have been warned that the gun should only be used with and under adult supervision; and that it should not under any event be cocked until ready to fire; and that it should not be used by anyone under 16 years of age; and lastly that the Model 25 could fire if bumped, jarred or dropped.

ISSUES

The questions presented in this case are: (1) whether section 23(a) of the Consumer Product Safety Act, 15 U.S.C. § 2072(a) (1982), creates a private right of action for an injury resulting from noncompliance with the product hazard reporting rules issued by the Consumer Product Safety Commission; (2) whether there is a sufficient causal connection between the alleged injury and the defendant's asserted unlawful conduct to impose liability against the defendant for the alleged violation; and (3) whether this plaintiff has stated a cause of action under the reporting rules since the gun which caused the accident was sold in 1962, ten years prior to the enactment of the CPSA and twelve years prior to the adoption of reporting rules. We conclude that while a private right of action does exist, there is no causal connection sufficient in this case to warrant such action. In addition, the Court does not reach the issue of whether the plaintiff's claim is barred due to the fact that the gun was manufactured prior to either the enactment of the CPSA or the adoption of reporting rules. This Court, therefore, directed a verdict in favor of the defendant at the close of plaintiff's case.

DISCUSSION

The CPSA provides a private right of action to any person injured "by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission." 15 U.S.C. § 2072(a). Consumer product safety rules are defined in the Act as rules that set safety standards or that ban products as hazardous. Id. § 2052(a)(2). The complaint in the present case alleges that Daisy violated Commission rules that required them to report to the CPSC the fact that they manufactured a BB gun for sale to children and this gun, inter alia, does not contain a safety which makes it defective and creates a substantial product hazard. The complaint further alleges that Daisy had such information available to them reasonably supporting this conclusion. See 16 C.F.R. §§ 1115.12(c) and (e). Whether the CPSC grants a private right of action under the Commission's reporting rules now becomes the focus of our discussion.

In Drake v. Honeywell, Inc., 797 F.2d 603 (8th Cir.1986), the Eighth Circuit noted that the basic duty to report is imposed by the statute itself. The court held that since Congress provided a private right of action only for violation of Commission rules rather than for violation of the Act itself, and since the rules set forth in § 1115 merely specify the terms and conditions under which reports are to be made, no private right of action should be inferred under these rules. The Drake court felt that the purpose of 16 C.F.R.Part 1115 is merely to set forth the Commission's interpretation of the reporting requirements imposed by Congress under section 15(b) of the Act, in order to provide guidance to those whose conduct may be governed by the statute. The court also distinguished between interpretive rules and legislative or substantive rules by defining the former as ones not establishing legally enforceable obligations which, therefore, cannot be violated. Accord Zepik v. Ceeco Pool & Supply, Inc., 118 F.R.D. 455, 459 (N.D.Ind.1987).

On the other hand, in Young v. Robertshaw Controls Co., 560 F.Supp. 288 (N.D. N.Y.1983), relied on by this court in Kelsey v. Muskin Inc., 86-CV-757, 1987 WL 17075, aff'd on other grounds, 848 F.2d 39 (2d Cir.1988), Judge Miner, then District Court Judge ruled that although the rules set forth in § 1115 "reiterate" the statutory duty to disclose, the reference in § 2072(a) to "any other rule" authorizes a private right of action under § 1115. Accord Wilson v. Robertshaw Controls Co., 600 F.Supp. 671, 675 (N.D.Ind.1985); Butcher v. Robertshaw Controls Co., 550 F.Supp. 692, 698-99 (D.Md.1981). Thus, it becomes obvious that the statutory interpretation question has divided the courts that have considered it.

It is this court's position that a private right of action does lie for a violation of Commission rules, thereby holding consistent with Judge Miner in Wilson. This court, however, draws its conclusion using reasoning different than did the court in Wilson. The mechanism by which this court determines that a private right of action exists is not the "any other rule" language of § 2072(a), but is in the text of reporting rule § 1115.10 itself.

Section 23(a) of the Consumer Product Safety Act, 15 U.S.C. § 2072(a) (1982), by its terms clearly permits a private cause of action for the violation of "a consumer product safety rule, or any other rule or order" issued by the Commission. The Act defines "consumer product safety rule," 15 U.S.C. § 2052(a)(2), but does not define the scope of the "other rule" provision. Regardless, the reporting rules issued by the Commission, whether legislative or interpretive, are patently within the plain meaning of the word "rule." Therefore, it would appear from the language of section 23(a) that a failure to comply with the reporting rules gives rise to a private cause of action.¹

Our analysis, however, of whether the statute permits a private right of action only begins with the statutory language, and must ultimately depend on the congressional intent. Universities Research Association, Inc. v. Coutu, 450 U.S. 754, 770, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981). "`A thing may be within the letter of the statute and yet not within its spirit, or within the intention of its makers.'" United Steelworkers of America v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979) (quoting Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). To discover that intention we must not fix on a single word or sentence, but must examine the law as a whole. Panama Refining Co. v. Ryan, 293 U.S. 388, 439, 55 S.Ct. 241, 256, 79 L.Ed. 446 (1935) (Cardozo, J., dissenting). While section 23(a) states that a private right of action may flow from a violation of a rule, it does not similarly provide for private actions based on a violation of the statute itself. Ordinarily, when a federal statute explicitly creates a private cause of action, it does so for violations of its own provisions, not just for violations of rules that may be issued pursuant to those provisions. Therefore, the only logical conclusion that can be drawn from this most obvious omission is that Congress has intentionally withheld from private persons the right to seek damages based on an injury resulting from the violation of the statute.

Section 15(b) of the statute specifically requires reporting of substantial product hazards. Applying the plain meaning of the "rule" to the Commission's substantial product hazard reporting rules, renders privately enforceable the reporting requirement contained in section 15(b) of the statute. At first glance, this seems to be inconsistent with the congressional intent, expressed by the omission of section 23(a), to deny a private cause of action to those injured from a violation of the statute itself. It becomes clear, however, after an examination of the text of section 15(b) in conjunction with section 1115 that such is not the case. While section 15(b) requires reporting of substantial product hazards, it is 16 C.F.R. section 1115 that provides the rules that must...