Steele By and Through Steele v. Daisy Mfg. Co., 65532

• Decision Date: 08 September 1987
• Docket Number: No. 65532,No. 3,65532,3
• Citation: 743 P.2d 1107
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Parties: 1987 OK CIV APP 64 Kris STEELE, A Minor Child, By and Through His Mother and Next Friend, Kay STEELE, Individually, and as Natural Guardian of Kris Steele, Appellants, v. DAISY MANUFACTURING COMPANY, A Delaware Corporation, doing business in the State of Oklahoma; and Otasco, Inc., An Oklahoma Corporation, Appellees. of Appeals of Oklahoma, Division Court of Appeals of Oklahoma, Division

Page 1107

743 P.2d 1107

1987 OK CIV APP 64

Kris STEELE, A Minor Child, By and Through His Mother and Next Friend, Kay STEELE, Individually, and as Natural Guardian of Kris Steele, Appellants, v. DAISY MANUFACTURING COMPANY, A Delaware Corporation, doing business in the State of Oklahoma; and Otasco Inc., An Oklahoma Corporation, Appellees.

No. 65532.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

Sept. 8, 1987.

Robert W. Hayden, Oklahoma City, for appellants.

Jeff Beeler, and Tom L. Kiney, Oklahoma City, for appellees.

HANSEN, Presiding Judge:

The trial court granted summary judgment in favor of Defendants in this action for damages based on manufacturers' products' liability. The minor Plaintiff, (Kris) sought recovery from Defendants for an injury he sustained when he was accidentally shot by a friend with an air rifle while they were playing "war" games.

The father of Derek and Devin, Kris' playmates, gave them a Daisy Power Line 880 pump-up air rifle. He read the instructions and showed them how to use the rifle. The day of the accident, the father had given the boys permission to shoot birds with the rifle. However, the boys opted for a more exciting activity. They decided two of the boys would hide and the other two would hunt for them. As the two boys started to run away, Derek, who was carrying the rifle, jumped back and the rifle accidentally discharged. The rifle was manufactured by Defendant Daisy Manufacturing Company (Daisy) and sold by Defendant Otasco, Inc. At the time of the accident Derek was 7 years old and Devin and Kris were approximately 9 years old.

Plaintiffs filed this action alleging the rifle was defective in two respects; first, that Defendants filed to give adequate warnings of the rifle's dangers, and second, that the rifle failed to incorporate economically and technologically feasible safeguards to prevent accidental shootings.

Defendants filed motions for summary judgment based on deposition testimony, and their argument that any failure to warn was not the proximate cause of Kris' injuries. They also argued they were not required to give warnings due to the nature of the rifle. Their supplemental trial brief emphasized the rifle was sold with printed warnings that were adequate as a matter of law. A second motion for summary judgment attached portions of deposition testimony from experts who stated in their opinion the rifle was not defective in its design. Plaintiffs' response to the first motion for summary judgment addressed only the issue of failure to warn.

The trial court granted Defendants' motions for summary judgment. Plaintiffs filed a motion to reconsider, this time claiming the rifle was defective in that it did not incorporate an automatic trigger safety. The trial court granted Plaintiffs' motion to reconsider and in the same order again granted Defendants' motions for summary judgment. Plaintiffs appeal.

On appeal, Plaintiffs submit there are issues of fact remaining to be tried. They maintain deposition testimony of one of their experts shows the warnings were not adequate to apprise anyone of the dangers of allowing minors to use the rifle unsupervised. Thus, the issue of whether the warnings satisfied products' liability standards should have been submitted to a jury.

It is undisputed the rifle carried warnings. The front page of the operation manual gave the following warning:

"CAUTION: Not a toy. Adult supervision required. Misuse or careless use may cause serious injury or death. May be dangerous up to 292 yards (267 meters). See manual for actual shooting distance. This is a highpower air gun intended for use by those sixteen (16) years of age or older. Read all instructions before using. The purchaser and user should conform to all laws governing the use and ownership of air guns."

A tag attached to the trigger guard of the gun stated:

"CAUTION: This is a highpower air gun intended for use by those sixteen (16) years of age or older. Misuse may result in death or serious permanent injury, particularly to the eye. May be dangerous up to 292 yards (267 meters). Read all instructions before using. The purchaser and user should conform to all laws concerning use and ownership of air guns."

On the box in which the air gun was packaged was the following warning:

"CAUTION: Not a toy. Adult supervision is required. Misuse or careless use may cause serious injury or death. May be dangerous up to 292 yards (267 meters). This is a highpower air gun intended for use by those sixteen (16) years of age or older. Read all instructions before using. The purchaser and user should conform to all laws concerning the use and ownership of air guns."

The operation manual, under "Proper Gun Handling" stated:

"Always keep the muzzle pointed in a safe direction.

Be sure you know your companions are well clear of the target before you shoot.

Ninety percent (90%) of the air gun related accidents occurring in this country are caused by (1) careless handling of the gun ... (3) shooting at improper...