Hilberg By and Through Hilberg v. F.W. Woolworth Co.

• Decision Date: 24 March 1988
• Docket Number: No. 86CA0109,86CA0109
• Citation: 761 P.2d 236
• Parties: Prod.Liab.Rep. (CCH) P 11,792 Robert P. HILBERG, a Minor, By and Through his father and next-of-friend, Robert F. HILBERG; and Robert F. Hilberg, Plaintiffs-Appellants, v. F.W. WOOLWORTH CO., a New York corporation; Savage Industries, Inc., a Massachusetts corporation; and William Jack Myers, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 236

761 P.2d 236

Prod.Liab.Rep. (CCH) P 11,792

Robert P. HILBERG, a Minor, By and Through his father and next-of-friend, Robert F. HILBERG; and Robert F Hilberg, Plaintiffs-Appellants, v. F.W. WOOLWORTH CO., a New York corporation; Savage Industries, Inc., a Massachusetts corporation and William Jack Myers, Defendants-Appellees.

No. 86CA0109.

Colorado Court of Appeals Div. II.

March 24, 1988.

Rehearing Denied April 21, 1988.

Certiorari Denied Sept. 12, 1988.

Williams, Trine, Greenstein & Griffith, P.C., Mari C. Bush, William A. Trine, Boulder, for plaintiffs-appellants.

Cooper & Kelley, P.C., Richard B. Caschette, Denver, for defendants-appellees F.W. Woolworth Co. and William Jack Myers.

Long & Jaudon, P.C., David B. Higgins, Denver, Powell, Goldstein, Frazer & Murphy, Daryll Love, Atlanta, Ga., for defendant-appellee Savage Industries, Inc.

SMITH, Judge.

Robert P. Hilberg, a minor, and Robert F. Hilberg, his father, appeal from summary judgments denying their claims of negligence per se, negligent entrustment and negligent failure to exercise due care with respect to defendants F.W. Woolworth Co. and William Jack Myers and their claims of negligent failure to exercise due care and strict liability in tort against defendant Savage Industries, Inc. We affirm.

Savage was the manufacturer of a .22 caliber rifle that was sold by a Woolworth employee to a Mr. Johnson for use by Johnson's fourteen-year-old son, Jeff. Plaintiff, Robert P. Hilberg, a minor child, was injured when he was accidentally shot by his friend, Jeff Johnson, with the .22 rifle which both thought was unloaded. Defendant Myers was the supervisor of the Woolworth employee who had made the sale. It is undisputed that the rifle which caused the injury did not malfunction in any way.

There were no disputed issues of material fact in this case which relate to the questions of liability. Thus, summary judgment was the appropriate way to determine whether plaintiffs were entitled to recover damages.

I.

The Hilbergs first contend that Woolworth's sale of the rifle to Mr. Johnson, for use by his minor son, constituted negligence per se. They argue that the sale constituted "furnishing" or "delivery" of a firearm by Woolworth and Myers to a minor in violation of the provisions of the Gun Control Act of 1968, 18 U.S.C. § 921, et seq., and provisions of the Thornton Municipal Code. We disagree.

Both the city ordinance and the Gun Control Act make it unlawful to sell, deliver, or furnish a firearm "directly" to a minor under the age of eighteen years. However, since Woolworth's employee sold the rifle to Mr. Johnson, an adult, it did not directly transfer it to a minor, and thus, the central element of negligence per se, that there be a violation of a statute which prescribes, or proscribes, specific and detailed conduct on the part of the alleged tortfeasor is not met here. See Sego v. Mains, 578 P.2d 1069 (Colo.App.1978). Accordingly, there was, as a matter of law, no negligence per se.

II.

Next, the Hilbergs argue that Woolworth and its agents were guilty of negligent entrustment in selling the rifle because they knew that Mr. Johnson intended to give it to his minor son as a Christmas present. The undisputed facts, however, disclose that these defendants had no specific knowledge concerning the competence, maturity, judgment or propensity for carelessness or recklessness of either Mr. Johnson or his son, nor did they retain any ability to control the use of the rifle after the sale had been completed. We therefore reject this argument.

Although negligent entrustment is a viable theory upon which liability may be predicated in an appropriate case, the supplier of the instrumentality entrusted must have actual knowledge either of the user's propensity to misuse the instrumentality or of facts from which such knowledge could reasonably be inferred. Baker v. Bratrsovsky, 689 P.2d 722 (Colo.App.1984). Such supplier must also have some ability subsequently to control the user or the manner in which the instrumentality is used. Hasegawa v. Day, 684 P.2d 936 (Colo.App.1983).

Here, there is no evidence that defendants had any knowledge of Mr. Johnson's supervision habits, shortcomings, or qualities as a parent. Absent knowledge to the contrary, defendants could reasonably expect that, although the gun was purchased for use by a fourteen-year-old, the parents would exercise reasonable and adequate supervision of the minor's use of the rifle and prevent its use when the minor was unattended by an adult. Furthermore, the Hilbergs have failed to allege any facts that would establish that any of the defendants retained any right of control once the sale was completed. Thus, the necessary elements of negligent entrustment are not present. Butcher v. Cordova, 728 P.2d 388 (Colo.App.1986). Hasegawa v. Day, supra. Furthermore, in this case, because of the outright purchase and sale, there was no entrustment, much less a negligent one.

III.

The Hilbergs next allege, under a general negligence theory, that Savage failed to exercise reasonable care in the promotion, marketing, and distribution of its .22 rifle for the use, possession, and control of minors. They also argue that Woolworth knew, or should have known, that children might use this particular model rifle. Therefore, the Hilbergs argue, reasonable and due care should have been taken, particularly when the employees who sold the firearm knew, or had reason to know, that Mr. Johnson's purchase of the rifle was as a Christmas present for his minor son.

Whether a defendant owes a duty of care to prevent injury to others is a threshold question of law. Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986). In determining whether the law should impose a duty on a defendant to prevent a particular harm to a plaintiff, the court must consider several factors including the extent, foreseeability, and likelihood of injury, the social utility of the actor's conduct, the magnitude of the burden placed on the defendant to guard against the injury, and the consequences of placing that burden on defendant. Justus v. Jefferson County School District R-1, 683 P.2d 805 (Colo.App.1984), rev'd in part on other grounds, 725 P.2d 767 (Colo.1986).

In addition to these factors, other considerations may also be relevant, depending on the circumstances of the particular case. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). No one factor is controlling, and the question of whether a duty should be imposed is essentially one of fairness under contemporary standards, as foreseeability includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding his or her practical conduct. Taco Bell, Inc. v. Lannon, supra.

Generally, if a person should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another there arises a duty to avoid such harm; however, there is no duty to prevent a third person from harming another absent a special relationship. Leake v. Cain, 720 P.2d 152 (Colo.1986).

In order for a special relationship to arise, defendant must voluntarily assume a duty to plaintiffs by acting affirmatively to induce reliance by creating a peril, or by changing the nature of an existing risk. Whitcomb v. City & County of Denver, 731 P.2d 749 (Colo.App.1986).

In determining whether a specific defendant owes a duty to a particular plaintiff, the law has long recognized a distinction between active misconduct which works positive injury to others (misfeasance) and passive inaction, or a failure to take steps to protect one from harm (nonfeasance). University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987). For example, in Whitlock, the court concluded that the University of Denver did not owe a duty of care to Whitlock, who was a student at the University and a member of a fraternity, to take measures to protect him against injury resulting from his use of a trampoline under unsafe conditions when the trampoline was owned by the fraternity and was located on the front lawn of the house that the fraternity leased from the University.

Application of these principles to the undisputed facts lead us to conclude that the trial court was correct, as a matter of law, in ruling that there was no duty, the breach of which could result in liability, under general negligence law.

IV.

The Hilbergs' remaining arguments fall within the realm of products liability. They might be summed up in two questions. Does the manufacture, distribution, and/or sale of firearms constitute the promotion and conduct of such an inherently dangerous activity as to impose liability for injury or death without fault, i.e., strict liability? Or correlatively, does a manufacturer, or seller, of a firearm owe a duty, prior to sale, to ascertain whether the product may be used by a child, and if so, to take further precautions or provide further instructions to the consumer?

In considering these questions it is necessary to look at them in light of our recent cases as well as against the background of our constitutional and statutory law.

The right to bear arms is guaranteed by the Constitution of the United States, U.S. Const. amend. II and the Colorado Constitution, Co. Const. art. II, § 13, subject to the valid exercise of police power....