Warren ex rel. Brassell v. K Mart Corp.

• Citation: 765 So.2d 235
• Decision Date: 01 August 2000
• Docket Number: No. 1D99-3521.,1D99-3521.
• Parties: Joseph WARREN, a minor, by and through his mother and next friend, Cheryl BRASSELL, Appellant, v. K MART CORPORATION, a Michigan Corporation, Appellee.
• Court: Court of Appeal of Florida (US)

765 So.2d 235

Joseph WARREN, a minor, by and through his mother and next friend, Cheryl BRASSELL, Appellant, v. K MART CORPORATION, a Michigan Corporation, Appellee.

No. 1D99-3521.

District Court of Appeal of Florida, First District.

August 1, 2000.

Jay C. Floyd of Law Office of Hardee & Floyd, Jacksonville, for Appellant.

Gary A. Bubb, Jacksonville, for Appellee.

LAWRENCE, J.

Joseph Warren (Warren) appeals the dismissal of his complaint against K Mart Corporation (K Mart), with prejudice, for failure to state a cause of action. We affirm.

Warren, on August 9, 1998, purchased carbon dioxide (CO2) cartridges from K Mart, in Duval County. That same day, Warren was blinded in his right eye when a companion fired, from a pellet gun, a pellet propelled by one of the CO2 cartridges purchased from K Mart. Warren's single count complaint sued K Mart on the theory of negligent entrustment, based on his status as an unaccompanied minor¹ at the time of purchase of the CO2 cartridges.

Warren argues that the trial judge erred in dismissing his complaint. We know that:

When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of a complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.

Sarkis v. Pafford Oil Co., 697 So.2d 524, 526 (Fla. 1st DCA 1997) (citations omitted) (emphasis added).

The trial judge in the instant case as a matter of law correctly dismissed the complaint. Warren cites no statute or case law making the sale of CO2 cartridges to a minor unlawful or an act of negligence. He instead argues that the sale of CO2 cartridges to minors may have violated the K Mart's internal policy. The standard of care however is set by the community, rather than by a corporation's internal policy. Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3d DCA 1992) ("[T]his court has held that a jury receiving such evidence must be cautioned that the existence of an internal rule does not itself fix the standard of care. This is necessary because of the public policy in favor of encouraging the voluntary setting of standards higher than those customarily employed in the community.").

Warren nevertheless relies on Kitchen v. K-Mart Corp., 697 So.2d 1200 (Fla.1997) (quashing; affirmatively answering the certified question: "CAN A SELLER OF A FIREARM TO A PURCHASER KNOWN TO THE SELLER TO BE INTOXICATED BE HELD LIABLE TO A THIRD PERSON INJURED BY THE PURCHASER?"; and holding that the seller of a firearm to a buyer who is known to be intoxicated may be held liable by a third person injured through the intoxicated buyer's use of the firearm under the theory of negligent entrustment). Kitchen is inapposite: no firearm was sold in the instant case; no knowledge of intoxication or other special circumstances is alleged.

Warren also relies on McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992) (quashing; reinstating jury verdict; and holding that an electric utility company had the ability to foresee a zone of risk created by the maintenance of an improperly marked underground high-voltage electrical cable, and thus has a greater than usual duty of care, and the evidence supported the jury's conclusion that injury to a mechanical trencher operator was proximately caused by the breach of duty to indicate where the underground electrical cable lay). McCain too is inapposite: no improperly marked underground high-voltage cable is involved here; no failure to warn of danger is alleged.

Warren argues that a CO2 cartridge should be treated like a gun or a car, instrumentalities declared dangerous in various cases. No known American case however holds that a CO2 cartridge is a dangerous instrumentality, so as to impose tort liability. Courts, on the contrary, have held otherwise. See, e.g., Holmes v. J.C. Penney Co., 133 Cal.App.3d 216, 219, 220, 183 Cal.Rptr. 777 (1982)

(affirming the dismissal, with prejudice, of a complaint and holding that imposing negligence on the seller of CO2 cartridges would result in a ban on sales by judicial fiat, a ban "within the purview of the Legislature, not the judiciary"; that Penney's policy of not selling CO2 cartridges to minors did not set the standard of care, for "policy established through the initiative of the conscientious and safety minded should not automatically establish the existence of a legal...