Zerby v. Warren

• Decision Date: 10 August 1973
• Docket Number: No. 43565,43565
• Parties: Louis D. ZERBY, as Trustee in the Matter of the Death of Steven J. Zerby, Respondent, v. Chester L. WARREN, d.b.a. Coast to Coast Store of Austin, Minnesota, et al., Defendants and Third-Party Plaintiffs, Appellants, v. Randy RIEKEN, Third-Party Defendant, Respondent, United States Plywood Corporation, Third-Party Defendant, Respondent.
• Court: Minnesota Supreme Court

Page 58

210 N.W.2d 58

297 Minn. 134

Louis D. ZERBY, as Trustee in the Matter of the Death of

Steven J. Zerby, Respondent, v. Chester L. WARREN, d.b.a. Coast to Coast Store of Austin, Minnesota, et al., Defendants and Third-Party Plaintiffs, Appellants, v. Randy RIEKEN, Third-Party Defendant, Respondent, United States Plywood Corporation, Third-Party Defendant,

Respondent.

No. 43565.

Supreme Court of Minnesota.

Aug. 10, 1973.

Syllabus by the Court

1. The sale of glue to a minor in violation of Minn.St. 145.38 creates absolute liability on the part of a retailer for the wrongful death of another minor, though not the purchaser, where death resulted from the intentional sniffing of the glue.

2. Assumption of risk is not available as a defense to an action under § 145.38, which creates absolute liability for wrongful death resulting from the sale of glue in violation of its provisions; nor will plaintiff's negligence be compared with that of defendant in such an action.

3. A third-party contribution claim may not be asserted against decedent's minor companion who purchased the glue, furnished it to decedent, and participated with him in sniffing it in violation of Minn. St. 145.39, since the conduct on the part of the minor companion was not independent of the original wrongful sale of the glue by defendants but was merely a reaction to the original wrongful act and thus was not a proximate cause of the death.

4. If a contract relieves a person from negligence in the discharge of an absolute duty imposed by law for the protection of others, it is void; thus, a contractual indemnity provision will not allow a tortfeasor to be indemnified for the consequences of his violation of Minn. St. 145.38.

O'Brien, Ehrick, Wolf, Deaner & Downing and Ted E. Deaner, J., Rochester, for appellants.

Wm. J. Nierengarten, Austin, for Zerby.

Hull & Hull and Robert G. Hull, Winona, for Rieken.

Fargre & Benson and Wright W. Brooks and W. James Fitzmaurice, Minneapolis, for U.S. Plywood Corp.

Heard and considered en banc.

KELLY, Justice.

This action was brought for the wrongful death of Steven J. Zerby, a 14-year-old minor, who died at Austin, Minnesota, on August 31, 1969, as a result of intentionally sniffing glue. The action was brought against Chester L. Warren, the owner of the Coast-to-Coast Store of Austin, and Robert Deike, his employed clerk, for selling the glue negligently and in violation of Minn. St. 145.38.

Thereafter, defendants Warren and Deike filed a third-party action seeking contribution from Randy Rieken, the 13-year-old companion of decedent who made the actual purchase of the glue and participated with decedent in sniffing it, and contractual indemnity from United States Plywood Corporation, the manufacturer of the glue. Plaintiff also asserted claims against the third-party defendants, and all defendants pleaded the defenses of contributory negligence and assumption of risk by decedent.

As a pretrial ruling, the trial court held that the trial would proceed solely under the theory of absolute liability for violation of Minn. St. 145.38 and that neither contributory negligence nor assumption of risk would be available as defenses. As a result of these rulings, the parties waived a jury trial and submitted the matter on stipulated facts. The trial court ordered judgment against defendants Warren and Deike and disallowed both third-party claims. Defendants appeal from the denial of their motion for judgment notwithstanding the findings or a new trial. We affirm.

The principal issue raised in this appeal is whether the sale of glue to a minor in violation of § 145.38 creates absolute liability on the part of the retailer for the wrongful death of another minor which resulted from his intentional sniffing of the glue. In relation to this issue, the question is raised whether comparative contributory negligence and assumption of risk are available as defenses to such an action. This case also involves the issue of whether a third-party contribution claim may be asserted against a minor companion of decedent who purchased the glue, furnished it to decedent, and participated with him in sniffing it in violation of Minn. St. 145.39. Finally, the question whether a contractual indemnity provision will allow a tortfeasor to be indemnified for the consequences of his violation of § 145.38 is presented. ¹ On August 31, 1969, decedent Steven Zerby and Randy Rieken went together to the shopping center in which the Coast-to-Coast Store in Austin is located. Rieken purchased two pint containers of Weldwood Contact Cement at the store from defendant Deike, who sold it within the course and scope of his employment as a clerk in the store. The glue contained toluene and was not a part of a packaged kit for construction of a model automobile, airplane, or similar item. At the time of the sale, neither defendant Warren nor Deike were aware that the sale was in violation of Minn. St. 145.38, which had become effective on July 1, 1969.

After Rieken had purchased the glue, he and decedent left the shopping center and within a few hours inhaled the fumes from the glue. Zerby's death resulted from the inhalation of the fumes, which had an injurious effect on his central nervous system, causing him to fall into a creek and drown. As a result of his death, decedent's next-of-kin have suffered damages stipulated by all parties except United States Plywood Corporation to be $11,250. (United States Plywood Corporation, although not a party to the stipulation when made, does not contest the amount agreed on.)

The Weldwood Contact Cement had been manufactured by United States Plywood and purchased by defendant Warren through Coast-to-Coast Central Organization, Inc. Central Organization's purchase order form contained a provision that the manufacturer-seller would indemnify the buyer against all liability resulting from the sale of the contact cement. Within 60 days of the death, the seller was duly notified of the death claim.

In 1969, the Minnesota Legislature recognized the potential harm which could result to minors from the sniffing of glue and enacted provisions to control its sale and use. Minn. St. 145.38 provides:

'Subdivision 1. No person shall sell to a person under 19 years of age any glue or cement containing toluene, benzene, zylene, or other aromatic hydrocarbon solvents, or any similar substance which the state board of health has * * * declared to have potential for abuse and toxic effects on the central nervous system. This section does not apply if the glue or cement is contained in a packaged kit for the construction of a model automobile, airplane, or similar item.

'Subd. 2. No person shall openly display for sale any item prohibited in subdivision 1.'

Minn. St. 145.39 reads:

'Subdivision 1. No person under 19 years of age shall use or possess any glue, cement or any other substance containing toluene, benzene, zylene, or other aromatic hydrocarbon solvents, or any similar substance which the state board of health has * * * declared to have potential for abuse and toxic effects on the central nervous system with the intent of inducing intoxication, excitement or stupefaction of the central nervous system, except under the direction and supervision of a medical doctor.

'Subd. 2. No person shall intentionally aid another in violation of subdivision 1.'

A violation of these statutory provisions is a misdemeanor. Minn. St. 145.40.

1. The threshold question on this appeal is the nature of tort liability which results from a violation of Minn. St. 145.38. The nature of tort liability created by a statutory violation was considered in the leading case of Dart v. Pure Oil Co., 223 Minn. 526, 27 N.W.2d 555 (1947). That case involved an action for wrongful death resulting from the explosion of a mixture of gasoline and kerosene sold in violation of a statute. After examining many cases, we stated (223 Minn. 534, 27 N.W.2d 559):

'* * * (I)t has been the long-standing rule of this court, With certain exceptions, that the violation of a statutory standard of conduct does not differ from ordinary negligence.' (Italics supplied.)

The only difference between a statutorily imposed duty of care and a duty of care under common law is that the duty imposed by statute is fixed, so its breach ordinarily constitutes conclusive evidence of negligence, or negligence per se, while the measure of legal duty in the absence of statute is determined under common-law principles. After thus establishing the general rule, the court considered whether the Dart case fell within an exception (223 Minn. 535, 27 N.W.2d 560):

'* * * This brings up the question whether this statute was intended for the protection of the public as a whole or for the protection of a limited class of persons from their inability to protect temselves. There are exceptional statutes which do not permit the defense of contributory negligence. * * *

'The principle of these so-called exceptional statutes is to impose strict or Absolute liability upon the defendant, which is greater than ordinary negligence liability, by placing upon him the entire responsibility for any injury which may result from their violation.' (Italics supplied.)

In order to create absolute liability, it must be found that the legislative purpose of such a statute is to protect a limited class of persons from their own inexperience, lack of judgment, inability to protect themselves or to resist pressure, or tendency toward negligence. Restatement, Torts 2d § 483, comment C. See, Prosser, Torts (4 ed.) § 36, p. 201, § 65, p. 425, § 68, p. 453. In instances such as the present case, this legislative intent can be deduced from the character of the statute and the background of the social problem and the particular hazard at which the statute is directed. Dusha v. Virginia & Rainy Lake Co., 145 Minn. 171, 176 N.W. 482 (1920); Prosser, Contributory Negligence as Defense to Violation...