Appeal from the Circuit Court of Cook County. Honorable Robert V. Boharic, Judge Presiding.
The Honorable Justice Buckley delivered the opinion of the court: Wolfson and Braden, JJ., concur.
The opinion of the court was delivered by: Buckley
The Honorable Justice BUCKLEY delivered the opinion of the court:
Plaintiffs filed suit against defendants, Brown's Sporting Goods, Inc. (Brown's), and Sportmart, Inc. (Sportmart), for injuries plaintiff-minor sustained while using a BB gun. The trial court granted defendants' motions for summary judgment. Plaintiffs appeal, contending that: (1) summary judgment was improper for Brown's because the sale of the BB gun to plaintiff-minor contravened the manufacturer's and Brown's policy of not selling such guns to anyone under age 16; (2) summary judgment was improper for Brown's because it violated the statute prohibiting sales of firearms to anyone under age 21; and (3) summary judgment was improper for Sportmart because it violated its own written policy of not selling ammunition to anyone under age 18.
In November 1987, plaintiff-minor and a friend drove to the Brown's store at Stratford Square Mall to purchase a BB gun. Plaintiff-minor found the BB gun he wanted and asked a salesperson, "Al," to remove it from the locked case. It was a Crossman air gun, model number 1377, which was a single-shot, air-powered pistol capable of shooting either BBs or pellets. The clerk then rang up the purchase and told plaintiff-minor how to load the gun and to be careful.* Plaintiff-minor was never asked how old he was nor was he given packaging, instructions, or an owner's manual. Prior to purchasing the gun, plaintiff-minor had been specifically told by his mother that he could not have a BB gun because his parents disapproved of guns. According to plaintiff-minor, he had never fired a gun except for a carnival gun which shot suction cups. However, he had seen BB guns used on a prior occasion.
The packaging for this gun contained a warning that it was not a toy, it might cause serious injury or death, and it was intended for persons 16 years of age or older. The owner's manual contained the same information. In addition, it stated the gun should not be aimed at hard surfaces or water because the BBs or pellets could bounce off and hit an unintended object or person.
At the Brown's store in question, the manager had adopted the manufacturer's age recommendation and implemented a store policy which prohibited the sale of air guns to anyone under age 16. Salesclerks were to verify age through appropriate identification. However, the manager testified that the salesperson in question would sell BB guns to people under age 16.
Shortly after the gun purchase, plaintiff-minor went to the Sportmart at Brickyard and purchased ammunition; a box of BBs and a box of pellets. The salesclerk asked him for identification as the store had a policy which prohibited sales of ammunition to anyone under 18 years of age. Although plaintiff-minor stated his identification was in the car, the salesclerk completed the transaction without it. According to an assistant department manager, store policy would not allow completion of a sale without official identification. At the time of the purchase, plaintiff-minor was 15 years, 11 months old. Subsequent to the purchase of the gun and ammunition, plaintiff-minor hid both from his parents.
With regard to the accident, plaintiff-minor and three friends went to a vacant parking lot near plaintiff-minor's home on December 2, 1987, to shoot the gun. This was one week prior to plaintiff-minor's 16th birthday. Each of the other three boys had experience shooting BB guns. The boys collected empty beer bottles and placed them on the concrete base of a metal lamppost. They stood 15 feet away and took turns shooting. Plaintiff-minor went first. Before shooting, one of the boys gave him instructions on how to load the gun with BBs. Plaintiff-minor denied that when he shot the gun, he noticed any BBs ricocheting back at him or that he heard a "pinging" sound. In addition, he stated he was not aware that if he hit the lamppost or its base, BBs could ricochet back. Each of the other three boys took a turn. Plaintiff-minor denied any shots ricocheted back or that he heard a "pinging" sound when two of the boys shot but thought BBs ricocheted off the lamppost when one of the boys missed the bottles. Two of the boys observed BBs ricocheting off the post or base and another heard "pinging."
Plaintiff-minor then took another turn. After he fired the gun, he stated the next thing he saw was a round projectile suddenly coming towards his left eye. The BB hit him in the eye and ultimately caused sight loss and disfigurement. This lawsuit followed.
Defendants filed motions for summary judgment, and after hearing argument, the trial court granted both defendants' motions. It found Brown's had no duty to refrain from selling the gun to plaintiff-minor, the danger of ricocheting was open and obvious, and there was no proximate cause between the sale and plaintiff-minor's injury. It found Sportmart owed no duty to refrain from selling ammunition to plaintiff-minor, the danger was open and obvious, and the sale did not proximately cause the accident. Finally, it held that the BB gun was not a firearm within the meaning of the Illinois Firearm Owners Identification Card Act (Ill. Rev. Stat. 1989, ch. 38, par. 83-1.1 (now 430 ILCS 65/1.1 (West 1992))) and, therefore, Brown's had no duty under this statute.
Summary judgment is proper when the pleadings, depositions, affidavits, admissions, and other matters on file demonstrate there is no genuine issue of material fact and movant is entitled to judgment as a matter of law. (735 ILCS 5/2--1005(c) (West 1992).) A reviewing court examines the propriety of summary judgment de novo. ( Delaney v. McDonald's Corp. (1994), 158 Ill. 2d 465, 467, 634 N.E.2d 749, 750, 199 Ill. Dec. 696.) If the material presented to the trial court would constitute all of the evidence and would require the trial judge to direct a verdict for the moving party, summary judgment should be granted. ( Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) The court must construe the evidence strictly against the movant and liberally in favor of the opponent. ( Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 518, 622 N.E.2d 788, 792, 190 Ill. Dec. 758.) If reasonable persons could draw different inferences from the undisputed facts or disputed facts exist, a triable issue of fact arises and summary judgment is improper. Loyola Academy v. S&S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272, 586 N.E.2d 1211, 1215, 166 Ill. Dec. 882.
We address this appeal under a negligent sale theory as plaintiffs urge and not under a failure to warn theory.
Plaintiffs first contend that the trial court erred in granting summary judgment for Brown's. They argue that based on the manufacturer's suggestion, as well as Brown's store policy of not selling BB guns to individuals under the age of 16, Brown's had a legal duty to refrain from selling the gun to plaintiff-minor. They contend that the reasoning and analysis of Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394, 95 Ill. Dec. 173, applies. Because the manufacturer had included warnings on the packaging and in the owner's manual, as in Salvi, defendant had a duty to refrain from selling to plaintiff-minor. In addition, further facts support a duty here. The gun was sold to plaintiff-minor without packaging, instructions, or a manual. The manual in this case suggests no sale to individuals under 16 whereas the manual in Salvi merely directed adult supervision. ...