Sherk v. Daisy-Heddon, a Div. of Victor Comptometer Corp.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtAuthor: Roberts
Citation450 A.2d 615,498 Pa. 594
Decision Date23 August 1982
PartiesMonica SHERK, Administratrix of the Estate of James Louis Sherk, Deceased, v. DAISY-HEDDON, A DIVISION OF VICTOR COMPTOMETER CORPORATION, Appellant v. Michael SAENZ, June Saenz, and Robert Saenz.

450 A.2d 615

498 Pa. 594

Monica SHERK, Administratrix of the Estate of James Louis

Sherk, Deceased,


Michael SAENZ, June Saenz, and Robert Saenz.

Supreme Court of Pennsylvania.

August 23, 1982

Argued March 1, 1982.

Reargument Denied Oct. 8, 1982. [450 A.2d 616]

[498 Pa. 596] John W. Jordan, IV, Thompson, Rhodes & Grigsby, Pittsburgh, for appellant.

Peter J. Mansmann, Pittsburgh, for Monica Sherk.

Michael A. Donadee, Neighborhood Legal Services, Pittsburgh, for Michael and June Saenz.

Shelley Bould, Pittsburgh, for Robert Saenz.



ROBERTS, Justice.

This is an action in trespass filed by the administratrix of the estate of James Sherk against appellant-defendant Daisy-Heddon in the Court of Common Pleas of Allegheny County on counts of strict liability, Restatement (Second) of Torts § 402A, misrepresentation, Restatement (Second) of Torts § 402B, and negligence. The administratrix, the appellee on this appeal, seeks damages for the death of James Sherk, who died after having been struck in the head by a "B-B" fired from a Daisy Power King Model 880 pump-up air rifle by Robert Saenz, a friend of the decedent. At trial appellee proceeded against appellant on the theory that [498 Pa. 597] appellant, the manufacturer of the air rifle, had failed to provide an adequate warning of the rifle's lethal propensity and that the alleged failure to warn of the lethal propensity of the air rifle had caused James Sherk's death. At the close [450 A.2d 617] of the evidence, the trial court submitted the case to the jury with instructions on the count of strict liability, but denied appellee's request that the jury be instructed on the counts of misrepresentation and negligence.

The jury returned a verdict in favor of appellant, but on appeal a panel of the Superior Court (Lipez, J., dissenting) reversed the judgment entered upon the verdict and remanded for a new trial. 285 Pa.Super. 320, 427 A.2d 657 (1981). The Superior Court upheld the trial court's refusal to submit the count of misrepresentation to the jury, [1] but deemed a new trial to be necessary because, in its view, the trial court had improperly refused to charge the jury on negligence and had erroneously excluded evidence of the "community's perception" that BB guns previously marketed by appellant had been non-lethal. [2]

Because the evidence presented at trial, including plaintiff-appellee's own evidence, precluded a finding that the allegedly inadequate warnings accompanying the Power King air rifle caused James Sherk's death, we conclude that the Superior Court erred in disturbing the judgment of the trial court. Hence, we reverse the order of the Superior [498 Pa. 598] Court and reinstate the judgment entered upon the jury's verdict in favor of appellant. [3]


While the Superior Court properly held that a plaintiff may proceed on theories of both negligence and strict liability, see Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), it erroneously concluded that the trial court's failure to charge on negligence or to admit the challenged evidence requires a new trial. Liability in negligence or strict liability is not imposed upon a manufacturer simply for the manufacture of a defective product. Rather, the plaintiff must demonstrate that the injuries sustained were proximately caused by the product's defect. See Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also Kuisis v. Baldwin-Lima-Hamilton Corp., supra. The claimed "defect" in the Daisy Power King Model 880 pump-up air rifle was the alleged failure on the part of appellant Daisy-Heddon to provide an adequate warning of the Power King's lethal propensity. Although appellee proceeded on the theory that if the lethal propensity had been known, Robert Saenz would never have directed the Power King at James Sherk's head, appellee's proof established facts from which it must be concluded that Robert Saenz was legally chargeable with knowledge of the Power King's lethal propensity.

Robert Saenz, who was fourteen years old on the day of the shooting, testified that on that day he and James Sherk had been firing the Power King at glass bottles and tin cans from a distance of fifteen to twenty feet. Robert Saenz was aware that "depend[ing] on how many times you pumped [498 Pa. 599] [the rifle] up," the BBs fired from the rifle [450 A.2d 618] could shatter the bottles and pierce through the cans. He also testified that he had known that the air rifle was "some[what more] powerful" than the spring BB guns he had previously used. Moreover, he knew that a BB fired from the Power King could blind a person and that he should never point a gun at anyone. Indeed, Robert Saenz testified that he had expected to use the Power King to kill rabbits and rats. He had been told by his father and mother not to use the Power King until his father had instructed him in its use. On the day of the shooting, Robert Saenz used the gun without permission and without having read the instructions accompanying the Power King. [4]

Robert Saenz was familiar with the operation of the Power King. He knew that in order for air to be pumped into the rifle, the bolt had to be opened and the manual safety device had to be pushed to the "on" position, in which position the red mark indicating that the rifle was ready to fire would not be visible. He also knew that the trigger would not fire the rifle when the bolt was open or when the safety was pushed to the "on" position. Robert Saenz admitted that, when he had directed the Power King at the decedent, he knew that the Power King had been pumped with air. He testified that he "just didn't bother" to check the position of the safety device. Instead, he pushed the safety device and "just assumed that it went on safe." In fact, he had pushed the safety from the "on" to the "off" position, thereby enabling the rifle to fire.

Robert Saenz testified that he had stood five feet from the decedent, who was sitting on the ground, and that he had pointed the barrel of the Power King at the decedent's head. He testified that he had "called Jimmy's name," intending that James Sherk would turn and look at him, and then "squeezed the trigger, thinking the safety was on." Robert Saenz further testified, "I was just horsing around, [498 Pa. 600] intended to scare him. I was just fooling around." He said that, when he directed the rifle at James Sherk's head, he knew that "this was something that [he] shouldn't be doing" and "this was something that could injure [his] friend."

This evidence makes it clear that the Power King air rifle was misused by Robert Saenz in a manner that Robert Saenz knew could cause serious bodily injury. Despite his knowledge that BBs fired from the Power King could kill animals and blind a person, Robert Saenz directed the Power King from close range at James Sherk's head.

Where, as here, the lethal propensity of a gun was known or should have been known to the user, liability cannot be imposed upon the manufacturer merely because the manufacturer allegedly has failed to warn of that propensity. As stated by Dean Prosser,

"[t]here appears to be no reason to doubt that strict liability has made no change in the rule, well settled in the negligence cases, that the seller of the product is not to be held liable when the consumer makes an abnormal use of it. Sometimes this has been put on the ground that the manufacturer has assumed responsibility only for normal uses; sometimes it has gone off on 'proximate cause.' "

Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 824 (1966) (footnote omitted). See Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974) ("a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use"); Restatement (Second) of Torts § 402A comment h (1965) ("A product is not in a defective condition when it is safe for normal handling and consumption."). Thus, because this record demonstrates that Robert Saenz is legally chargeable with sufficient appreciation of the nature of the risk of his misuse of the Power King, he is exclusively responsible for the consequences of his misuse. [450 A.2d 619] II

Appellee cannot prevail on the theory that if the parents of Robert Saenz had known of the Power King's lethal [498 Pa. 601] propensity, they would not have permitted Robert Saenz to have possession of the Power King and thus be in a position to misuse it. The Power King was purchased by Mrs. Saenz from a mail order catalogue at the request of Robert and his older brother Wayne. Mrs. Saenz testified that she had "no knowledge of guns," and did not know "what BB guns look like." She purchased the Power King air rifle without consulting or informing her husband, at a time when her son Wayne "just hit [her] at the right moment with the proper approach." When the rifle arrived in the mail, Mrs. Saenz did not open the box or read the instructions. Instead, the box "was put away," and Mrs. Saenz directed her sons that the gun was not to be used until their father had instructed them in its use. Later that week, Mr. Saenz looked at the gun but did not read the operation and instruction manuals accompanying the Power King. Mr. Saenz testified that he had told Robert not to point the gun at anyone and not to use the gun until he had been instructed by him in its use. Mr. Saenz had intended to read the instructions and to instruct his children in the use of the gun on the upcoming Saturday, the day that the shooting took place. [5]

[498 Pa. 602] In Ucci v. Keane, 402 Pa. 467, 167 A.2d 147 (1961), this Court stated:

"[I]t is well established that...

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