First Trust Co. of North Dakota v. Scheels Hardware & Sports Shop, Inc.

• Decision Date: 28 June 1988
• Docket Number: No. 870134,870134
• Citation: 429 N.W.2d 5
• Court: North Dakota Supreme Court
• Parties: FIRST TRUST COMPANY OF NORTH DAKOTA, as conservator of the Estate of Steven R. Holen, Steven R. Holen and Karlene Holen, Plaintiffs and Appellants, v. SCHEELS HARDWARE & SPORTS SHOP, INC., William Boyer, By and Through his mother and natural guardian, Kathryn Boyer, and Kathryn Boyer, Defendants and Appellees. Civ.

Page 5

429 N.W.2d 5

FIRST TRUST COMPANY OF NORTH DAKOTA, as conservator of the Estate of Steven R. Holen, Steven R. Holen and Karlene Holen, Plaintiffs and Appellants, v. SCHEELS HARDWARE & SPORTS SHOP, INC., William Boyer, By and Through his mother and natural guardian, Kathryn Boyer, and Kathryn Boyer, Defendants and Appellees.

Civ. No. 870134.

Supreme Court of North Dakota.

June 28, 1988.

Conmy, Feste, Bossart, Hubbard & Corwin, Ltd., Fargo, for plaintiffs and appellants, argued by David R. Bossart. Appearance by Kim E. Brust, Fargo.

Lee Hagen Law Office, Ltd., Fargo, for plaintiffs and appellants. Appearance by Leland F. Hagen, Fargo.

Nilles, Hansen & Davies, Ltd., Fargo, for defendant and appellee Scheels Hardware & Sports Shop, Inc., argued by Duane H. Ilvedson. Appearance by Bill Harrie, Fargo.

Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendants and appellees William and Kathryn Boyer, argued by Armond G. Erickson. Appearance by Maureen Holman, Fargo.

ERICKSTAD, Chief Justice.

The plaintiffs, Steven Holen, his mother, Karlene Holen, and the conservator of Steven's estate, First Trust Company of North Dakota (First Trust), have appealed from a judgment, entered upon a jury verdict, dismissing their personal injury action against the defendants, Scheels Hardware & Sports Shop, Inc. (Scheels Hardware), Kathryn Boyer, and her son, William Boyer. The plaintiffs have also appealed from a court order denying their alternative motions for judgment notwithstanding the verdict and for a new trial. We reverse the judgment as to Scheels Hardware, remand for a new trial as to Scheels Hardware, and in all other respects affirm the judgment.

This case involves a tragic accident by which Steven, the fourteen year old son of Karlene, was shot by William with a twenty-two caliber pistol and was critically injured. At the time of the accident William was fifteen years old and resided with his mother, brother, and two sisters in Fargo. For several months prior to the accident William had saved money to purchase a pistol and on three separate occasions had looked at handguns and talked to salesmen at Scheels Hardware about purchasing one. On January 1, 1983, William and Kathryn went to Scheels Hardware to purchase a pistol. Kathryn testified that the salesman gave William a handgun, that William showed it to Kathryn, and that William then told the salesman that they would buy it. She also testified that she and the salesman completed a federal firearms forms, after which William carried the pistol to the checkout stand, took cash from his pocket to pay for the pistol, and upon completing the sale carried the pistol out of the store.

On the evening of the accident, January 4, 1983, Steven and two other boys were visiting with William in his bedroom. It is undisputed that prior to the accident the boys were handling William's pistol. There was conflicting testimony from which the triers of fact could infer that, just prior to the accident and unknown to the others, Steven had loaded the pistol with one or more bullets. When the accident happened Steven was facing William's dresser with his back to the other three boys. William, pointing the pistol in the direction of the dresser, began pulling the trigger. The pistol dry fired twice, but the third time it discharged, and the bullet struck Steven in the head, passing through his brain, leaving him permanently and totally disabled for life. ¹

The plaintiffs brought this personal injury action against the defendants, alleging that Steven's injuries and the plaintiffs' resultant damages were caused by the defendants' negligence. More specifically, they asserted that Scheels Hardware "negligently, recklessly, carelessly, and unlawfully sold, delivered, or otherwise transferred a pistol" to William and that William negligently shot Steven with the pistol. No specific allegations of negligence or wrongful conduct were pled against Kathryn.

The jury returned a special verdict finding that Scheels Hardware and Kathryn were both negligent but that their negligence was not the proximate cause of Steven's damages. The jury also found that both Steven and William were negligent and that their negligent conduct was each a fifty percent proximate cause of Steven's damages. In accordance with Section 9-10-07, N.D.C.C., under which a plaintiff may recover damages only if his negligence is not as great as the defendant's negligence, judgment was entered awarding no damages to the plaintiffs and dismissing their action on the merits. The plaintiffs then filed alternative motions for judgment notwithstanding the verdict and for a new trial which were denied by order of the trial court. The plaintiffs have filed this appeal from that order and from the judgment.

The plaintiffs assert that the trial court's refusal to instruct the jury on a theory of negligent entrustment constituted reversible error. We agree.

The doctrine of negligent entrustment is applicable whenever a person supplies a chattel to another whom the supplier has reason to know may use it in a manner involving unreasonable risk of harm to himself or others. Barsness v. General Diesel & Equipment Co., 383 N.W.2d 840 (N.D.1986). As applied in our state, the doctrine is appropriately summarized by Section 390 of the Restatement 2d of Torts (1965):

"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."

Although the trial court instructed the jury on ordinary negligence it refused to instruct on a theory of negligent entrustment. We believe that there was adequate evidence admitted at trial for the question of negligent entrustment to go to the jury.

Such an instruction could have had a direct bearing on the jury's proximate cause determination, because the foreseeable misuse of a chattel by the person to whom it has been negligently entrusted cannot be a superseding intervening cause which extinguishes the supplier's liability. Axelson v. Williamson, 324 N.W.2d 241 (Minn.1982). The intervening negligence of another cannot be a superseding cause which extinguishes a tortfeasor's liability if that negligence was a foreseeable consequence of the situation created by the tortfeasor. See Vattimo v. Lower Bucks Hospital, Inc., 59 Pa.Commw.Ct. 1, 428 A.2d 765, 769-770 (1981), modified on other grounds, 502 Pa. 241, 465 A.2d 1231 (1983); Parness v. City of Tempe, 123 Ariz. 460, 600 P.2d 764 (1979); Stewart v. Wulf, 85 Wis.2d 461, 271 N.W.2d 79, 87-88 (1978); Suchomajcz v. Hummel Chemical Co., 524 F.2d 19, 28-29 (3rd Cir.1975); Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A.2d 51 (1940).

A vivid explanation of the rule is provided by Prosser & Keeton on Torts, Ch. 7, pp. 303-304 (5th ed. 1984):

"If a gun is entrusted to a child, it suggests at once to anyone with any imagination at all that someone, the child or another, is likely to be shot. In all of these cases there is an intervening cause combining with the defendant's conduct to produce the result, and in each case the defendant's negligence consists in failure to protect the plaintiff against that very risk.

"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 the defendant 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."

Although not expressly limited to negligent entrustment situations, the principles of law expressed by Sections 442(A) and 449 of the Restatement 2d of Torts (1965) are applicable:

"s 442 A. Intervening Force Risked by Actor's Conduct

"Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause."

"s 449. Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent

"If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby."

The jury in this case should have been given a negligent entrustment instruction and on remand should be further instructed that if there is negligent entrustment by the defendant Scheels Hardware & Sports Shop, Inc., a foreseeable misuse of the chattel by the person to whom it is entrusted cannot be a superseding cause which will extinguish the defendants' liability for harm caused by the misuse. The plaintiffs' requested instruction on negligent entrustment referred only to the "sale" of the pistol to William, and, thus, could not apply to Kathryn. ²

The plaintiffs assert that the trial court erred in giving the jury an assumption of risk instruction. ³ Although expressing reservations, the trial court gave the instruction over plaintiffs' objection. The trial court's reservations were well founded. When the legislature adopted our comparative negligence law, Section 9-10-07, N.D.C.C., it omitted the language upon which the doctrine of assumption of risk was based, thereby abolishing the doctrine. Feuerherm v. Ertelt, 286 N.W.2d 509 (N.D.1979); Wentz v. Deseth, 221 N.W.2d 101 (N.D.1974).

By giving an assumption of risk instruction the court may have misled the jury to...