Haesche v. Kissner

• Decision Date: 18 March 1994
• Docket Number: No. 14721,14721
• Citation: 229 Conn. 213,640 A.2d 89
• Parties: , Prod.Liab.Rep. (CCH) P 13,880 Walter HAESCHE et al. v. Edward KISSNER III et al.
• Court: Connecticut Supreme Court

Page 89

640 A.2d 89

229 Conn. 213, Prod.Liab.Rep. (CCH) P 13,880

Walter HAESCHE et al. v. Edward KISSNER III et al.

No. 14721.

Supreme Court of Connecticut.

Argued Jan. 5, 1994.

Decided March 18, 1994. ^*

William H. Clendenen, Jr., New Haven, with whom were Nancy L. Walker, North Haven, James E. Clifford and, on the brief, David M. Lesser, New Haven, for appellants (plaintiffs).

Mark J. Claflin, Hartford, for appellee (defendant Coleman Co., Inc.).

Before PETERS, C.J., and BORDEN, NORCOTT, KATZ and PALMER, JJ.

NORCOTT, Associate Justice.

The dispositive issue in this products liability appeal is whether the evidence before the trial court raised a genuine issue of material fact regarding whether the conduct of the manufacturer defendant, Coleman Company, Inc. (Coleman), was the proximate cause of the named plaintiff's injuries. We conclude that no genuine issue of material fact existed and that the trial court, therefore, properly granted Coleman's motion for summary judgment. Accordingly, we affirm the judgment.

The plaintiff, sixteen year old William Haesche, ¹ brought this action against Coleman ² for alleged violations of the Connecticut Product Liability Act; General Statutes § 52-572m et seq.; and the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq. Coleman moved for summary judgment alleging, inter alia, that its actions did not proximately cause the plaintiff's injuries and that no genuine issue of material fact existed with respect to this claim. The trial court, Gray, J., granted Coleman's motion for summary judgment and rendered judgment for Coleman on the complaint. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The following facts are undisputed. On April 8, 1986, the named defendant, seventeen year old Edward Kissner III, purchased a Crosman Model 66 Powermaster .177 Caliber Pellet/BB air rifle (Crosman 66), manufactured by Coleman, from Caldor, Inc., a department store located in Hamden. Kissner bought the gun in order to participate in an activity that he and his friends called "war games." Later that afternoon, Kissner, fifteen year old Christopher Millea, sixteen year old Richard Davies, and the plaintiff engaged in war games as they had on previous occasions. Armed with air rifles and wearing several layers of clothing for protection, the young men went to a wooded area, divided into two teams, dispersed and began hunting for and shooting at each other. In the course of the war games, Kissner shot at a tree behind which he knew the plaintiff was hiding. At that moment, the plaintiff stepped out from behind the tree and was struck in the eye by the BB that Kissner had fired. As a result, the plaintiff suffered serious injury to his eye.

The plaintiff filed a fourteen count complaint alleging, inter alia, that Coleman's failure to provide adequate warnings regarding the ability of the Crosman 66 to cause serious eye injury violated the Product Liability Act and constituted an unfair trade practice under CUTPA. By his complaint, the plaintiff sought both money damages and injunctive relief. ³

The trial court granted Coleman's motion for summary judgment concluding both that the risk of serious eye injury was an open and obvious danger of which Coleman had no duty to warn, and that the alleged failure to warn could not have proximately caused the plaintiff's injury. The trial court further concluded that because the plaintiff was not the purchaser of the air rifle, he lacked standing to assert a claim under CUTPA. Thereafter, the trial court rendered judgment for Coleman on each count of the complaint in which it was named.

The plaintiff has appealed the judgment claiming, inter alia, that the trial court improperly concluded: (1) that Coleman's conduct did not cause the plaintiff's injuries; and (2) that the plaintiff lacked standing to assert a CUTPA violation. ⁴ We now affirm the judgment of the trial court because, on the basis of the evidence before the trial court, a fair and reasonable person could conclude only that the failure to warn did not cause the plaintiff's injuries. We, therefore, do not address the issue of whether, under Connecticut law, the risk of serious eye injury resulting from misuse of a BB gun is so "open and obvious" a danger as to obviate a manufacturer's duty to warn.

I

The standard for appellate review of a trial court decision to grant a motion for summary judgment is well established. "Practice Book § 384 provides that summary judgment 'shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); see Practice Book §§ 380 and 381. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra.

The plaintiff first claims that the trial court improperly granted Coleman's motion for summary judgment on the plaintiff's product liability claims. The plaintiff contends that if Coleman had adequately warned Kissner of the dangers of engaging in war games, the plaintiff would not have been shot in the eye. He further contends that whether Coleman's warnings were adequate is a question for the trier of fact and that the trial court, therefore, improperly granted Coleman's motion for summary judgment. Conversely, Coleman argues that on the basis of the affidavits and other documentary evidence before the court, no genuine issue of material fact existed regarding whether the alleged failure to warn caused the plaintiff's injuries. Coleman asserts that Kissner's admissions and conduct conclusively established that the existence of a warning would not have prevented him from playing war games and that as a result even if the warnings argued for by the plaintiff were given, the plaintiff's injuries would not have been avoided.

"In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries." Wierzbicki v. W.W. Grainger, Inc., 20 Conn.App. 332, 334, 566 A.2d 1369 (1989), citing Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). It is the established rule in Connecticut that "[a] product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." Tomer v. American Home Products Corp., 170 Conn. 681, 689, 368 A.2d 35 (1976); Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980). Under such circumstances, the failure to warn, by itself, constitutes a defect. See General Statutes § 52-572q.

The issue of causation in warnings cases is governed by § 52-572q(c), which states that "the [plaintiff] shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the [plaintiff] would not have suffered the harm." Generally, questions regarding the existence of a causal link are reserved for the trier of fact. Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988); Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); however, the issue becomes one of law "when the mind of a fair and reasonable [person] could reach only one conclusion...." (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989).

Applying these principles to the evidence in the record, we conclude that the trial court properly determined that no genuine issue of material fact existed regarding whether the alleged failure to warn Kissner of the dangers associated with the use of the air rifle could have proximately caused the plaintiff's injuries. In the present case, the plaintiff alleged that Coleman had failed to warn Kissner of the possibility that a BB shot from the air rifle that he had purchased could seriously injure a person's eye. To prevail on his failure to warn claim, the plaintiff had the burden of proving that if the product had contained an adequate warning, Kissner would not have participated in the war games and, as a result, the plaintiff would not have suffered a serious eye injury.

In support of its motion for summary judgment, Coleman presented affidavits, deposition testimony, and other documentary evidence tending to show that no warning would have changed Kissner's behavior. A review of the evidence submitted reveals the following relevant facts. Kissner was familiar with the operation and potential power of the air rifle. He testified, in a deposition, that he had used an air rifle prior to his purchase and use of the Crosman 66, and that he had known that the air rifle's power depended on the number of times its air chamber had been pumped. He testified that prior to the day of the shooting he had shot an air rifle at birds and glass bottles and that he was aware that a BB shot from the Crosman 66 could shatter glass and kill small animals. Kissner also testified that he had engaged in war games prior to the day of the shooting, and that he had suffered welts and bruises after being struck by a BB through his clothing.

Kissner...