Jacqueline S. Hunt, Admx. of the Estate of Gregory A. Hunt v. Marksman Products, A. Division of S/r Industries, Inc.

Decision Date22 March 1995
Docket Number95-LW-2471,16679
PartiesJACQUELINE S. HUNT, ADMX. of the estate of GREGORY A. HUNT, Deceased, Appellant v. MARKSMAN PRODUCTS, A Division of S/R Industries, Inc., et al., Appellees C.A.
CourtOhio Court of Appeals

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:



Plaintiff Jacqueline Hunt, administratrix of the estate of Gregory Hunt, has appealed from a judgment of the Summit County Court of Common Pleas that dismissed her complaint against defendant Marksman Products because it failed to state a claim upon which relief could be granted. She has argued that the trial court incorrectly dismissed her complaint because she had alleged a valid products liability claim against Marksman Products. This Court affirms the judgment of the trial court because Ms. Hunt failed to allege facts demonstrating that a Marksman air pistol was a proximate cause of Gregory Hunt's death.


Ms. Hunt filed this wrongful death action against Marksman Products and Shane Wamsley on January 29, 1993. She averred that, on November 17, 1991, Shane Wamsley negligently shot and killed her son, Gregory Hunt, with a black 9 millimeter Smith and Wesson automatic pistol while showing it and a Marksman BB Repeater Air Pistol to Mr. Hunt. The Marksman air pistol allegedly looked and felt similar to the black 9 millimeter automatic pistol. Ms. Hunt alleged that the design of the Marksman air gun "invited such comparison and produced an unreasonable danger and substantial risk of injury under circumstances that would likely cause serious injury or death." She further alleged that the air pistol was patently unsafe "and could have been rendered safe by resorting to redesigning the air pistol so that it would not look like an authentic weapon and invite comparison."

Marksman moved to dismiss Ms. Hunt's complaint for failure to state a claim upon which relief could be granted. The trial court determined that Ms. Hunt had failed to allege facts that would permit a conclusion that Marksman had defectively designed or negligently manufactured the air pistol: The fact that Marksman manufactured a BB gun to look like an authentic gun does not violate Ohio law, and thus cannot be equated to negligent manufacture of such a gun.

The trial court dismissed Ms. Hunt's complaint against Marksman, finding that there was no just reason for delay. Ms. Hunt timely appealed to this Court.


Ms. Hunt's sole assignment of error is that the trial court incorrectly dismissed her complaint because it failed to state a claim upon which relief could be granted. The Ohio Supreme Court has determined that, when a trial court construes a complaint for purposes of a motion to dismiss for failure to state a claim, it must assume that "all factual allegations in the complaint are true" and it must appear beyond doubt that "the plaintiff can prove no set of facts warranting recovery." Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St. 3d 541, 544, citing O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242. The trial court is obligated to construe all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Since all factual allegations in the complaint are presumed true, only legal issues are presented and an entry of dismissal on the pleadings will be reviewed de novo. Plazzo v. Nationwide Mut. Ins. Co. (June 24, 1992), Summit App. No. 15370, unreported at 3. In this case, based on the facts alleged in the complaint, Ms. Hunt could not prove that the Marksman air pistol was a proximate cause of Gregory Hunt's death.

In her complaint, Ms. Hunt alleged that Marksman defectively designed the air pistol to look and feel similar to a real 9 millimeter handgun. She alleged that, as a result of the defective design of the air pistol, Marksman invited customers to compare the real gun with the air pistol. She has argued that "[s]uch design, absent warning to segregate this look-alike weapon from a real weapon, coupled with the implicit invitation to the user to compare the two, should be proof establishing" her claim.

Ms. Hunt appears to have argued both that Marksman was negligent in the sale and/or marketing of the air pistol and that the air pistol was defectively designed. Under either theory, she failed to allege facts entitling her to recovery.

Ms. Hunt was required to allege facts demonstrating that Marksman's conduct was a proximate cause of her son's death whether her claim was based on a negligence theory or a defective design theory. "It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom." Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Similarly, under a defective design theory, Section 2307.73(A)(2) of the Ohio Revised Code requires a claimant to establish that "[a] defective aspect of the product * * * was a proximate cause of harm for which the claimant seeks to recover compensatory damages."

Proximate causation or legal causation is primarily a legal question. It requires a determination of whether a defendant should be legally responsible for an injury. Prosser & Keeton, Law of Torts (5th Ed.1984) 273, Section 42. It has...

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