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Salvi v. Montgomery Ward & Co.

OPINION FILED JANUARY 30, 1986.

FRANK J. SALVI, JR., PLAINTIFF-APPELLEE AND APPELLANT,

v.

MONTGOMERY WARD & COMPANY, INCORPORATED, DEFENDANT-APPELLANT (THE COLEMAN COMPANY, INC., DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. John V. Virgilio, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 13, 1986.

Plaintiff, Frank J. Salvi, Jr., instituted this action seeking damages from defendants Montgomery Ward & Company, Incorporated (Wards), and The Coleman Company, Inc. (Coleman), for an eye injury he sustained in an accident involving an air gun sold by Wards and manufactured by Coleman. In his amended complaint, Frank alleges that Wards was negligent in selling a Coleman air gun to John Salvi, Frank's 14-year-old brother, and that such negligence proximately caused his injury. In addition, Frank claims that the Coleman air gun was defectively designed and unreasonably dangerous.

Following a trial on the merits, the jury found that Wards was negligent and awarded Frank $570,000 for the injury he suffered. *fn1 With regard to Coleman, however, the jury found that the Coleman air gun was not unreasonably dangerous and therefore ruled against Frank and in favor of Coleman.

Frank and Wards now bring this appeal.

Frank claims that the trial court committed prejudicial error in two respects: (1) by permitting Coleman to introduce evidence demonstrating that it manufactured 459,000 air guns with the same type of safety as the gun involved in Frank's injury and that the use of those air guns failed to produce a single injury claim other than that asserted by Frank; and (2) by tendering a jury instruction which stated that a manufacturer is not required to provide a warning of a particular danger unless that manufacturer knew or should have known of the danger.

Wards, on the other hand, contends that the trial court erred when it: (1) permitted evidence to be introduced regarding a remedial change in policy which Wards instituted subsequent to the alleged act of negligence; (2) denied Wards' post-trial motions wherein Wards argued that it owed no legally cognizable duty to Frank and that Wards' acts were not the proximate cause of Frank's injury; and (3) refused to give a jury instruction regarding Wards' compliance with section 2 of "An Act * * * regulating the sale * * * of air rifles * * *" (Ill. Rev. Stat. 1977, ch. 38, par. 82-2).

We affirm.

BACKGROUND

In January of 1978, John Salvi, the plaintiff's brother (hereinafter referred to as John), purchased a Model 1377 American Classic Single Shot .177-caliber pump action pistol from a Wards retail outlet in Deerfield. At the time of the purchase, a salesman from Wards instructed John on the basic operation of the air gun. The salesman did not ask John for any identification nor did he question John as to whether John had his parents' permission to purchase the gun. John was 14 years old when he purchased the gun. Included with the gun was a package of "BBs," an owner's manual, and lubricating oil.

When John got home, he glanced over the owner's manual. He never fully read the manual, feeling such was not necessary in light of the salesman's demonstration of the gun's operation. As he became more familiar with the gun, John learned, through trial and error, that pulling the trigger was the only way for him to tell if the safety of the gun was activated. If the gun fired, the safety was off, and if the gun did not fire, the safety was on.

John kept the gun for approximately 13 months. During that time, he fired the gun over 200 times. At the conclusion of that 13-month period, John decided to sell the gun. To facilitate that sale, on February 26, 1979, John decided to clean the gun in the family's kitchen.

In the Salvi home, the kitchen is adjacent to the family den. The kitchen and den are attached by a large open doorway. On February 26, 1979, Frank Salvi, the plaintiff, was watching television in the den when his brother John brought the air gun into the kitchen to clean. As John cleaned the bottom of the gun, he inadvertently pulled the pump mechanism on the gun several times. John failed to check if the safety was on nor did he check to see if the gun was loaded.

John was about 15 to 20 feet away from Frank at the time of the accident. John was looking down at the gun while he cleaned it and the gun's barrel, unbeknownst to John, was pointed in Frank's direction. During the cleaning, John pulled the trigger and the gun discharged a BB which struck Frank in the eye.

The BB struck Frank in the upper part of the eye. The BB penetrated the eyelid, cutting the globe of the eye, passed through the sclera, through the choriod, and finally through the retina. X rays disclosed that the BB lodged in the center of the eye globe in the vitreous. Because of severe hemorrhaging, the eye lens became cataract. In addition, the vitreous, and pieces of retina fell out of the eye itself.

As a result of the accident, Frank lost the sight in his damaged eye. He now wears a prosthetic eye fitted into the eye socket.

The Coleman gun which John purchased came in a multicolored box. On the side panel of that box was a warning printed in red bold type that read:

"CAUTION: This air gun is not a toy and may cause death or serious injury, particularly to the eye, if misused or used carelessly. Read all instructions before using.

This air gun requires adult supervision if the user is under 16 years old and should not be used by anyone under 8 years of age. This air gun will shoot a BB/pellet up to a distance of 400 yards (370 meters). Purchaser and user have the responsibility to conform to all laws concerning the use and ownership of this air gun."

There existed no published standards for air gun design at the time Coleman manufactured the gun purchased by John. However, the gun, including the design of the safety, complied with subsequently enacted standards promulgated in late 1978 by the American Society of Testing Materials (ASTM).

At trial, Frank Salvi's case was two-fold: (1) a negligence action against Wards; and (2) a products liability case against Coleman.

In his action against Wards, Frank claims that Wards was negligent for selling a Coleman air gun to John Salvi, Frank's 14-year-old brother. During his case in chief against Wards, Frank first called David Teachman pursuant to section 2-1102 of the Illinois Code of Civil Procedure. Teachman is an assistant corporate retail operating manager for Wards. Teachman is responsible for reviewing sales policies and procedures adhered to by Wards' retail outlets. Teachman testified that with respect to firearms (as opposed to air guns), Wards has always adhered to Federal guidelines restricting their sale. Those guidelines forbid the sale of firearms to persons under the age of 18.

Teachman also testified that it is Wards' firearms buyer who is usually most familiar with the industry and who, initially, is responsible for formulating the guidelines regulating their sale. Teachman noted that when the firearms buyer learns of a sales guideline, either from the firearms manufacturer or from a government agency, the buyer was then responsible for circulating a copy of that guideline to various departments for comments and revisions. Ultimately, the finalized version of the guideline would be distributed, upon Teachman's approval, to Wards' retail outlets.

Teachman also testified that in 1978, when John Salvi purchased the Coleman air gun from Wards, the only guideline adhered to by Wards (with respect to the sale of air guns) was that of an Illinois statute (Ill. Rev. Stat. 1977, ch. 38, par. 82-2) which prohibited the sale of air guns to children under the age of 13.

Frank next called Jasper Butera, Wards' firearms buyer from 1977 to 1982. Butera testified that in the December 1977 Wards catalog, Wards included the following notice with respect to the sales of firearms:

"Federal law permits sale of rifles, shotguns and ammunition to persons 18 years of age or older. State and local ordinances must be ...


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