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09/18/95 ANTHONY MICELI v. BROWN'S SPORTING GOODS

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION


September 18, 1995

ANTHONY MICELI, A MINOR, BY HIS FATHER AND NEXT FRIEND, FRANK MICELI, JR., AND FRANK MICELI, JR., INDIV., PLAINTIFFS-APPELLANTS,
v.
BROWN'S SPORTING GOODS, INC., AND SPORTMART, INC., DEFENDANTS-APPELLEES.

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. Brown's was clearly aware of the danger of BB guns as evidenced by it store age-limit policy. Finally, if Brown's had given plaintiff-minor instructions, warnings, or a manual, he would have been aware of the danger of ricocheting.

Plaintiffs further allege that the open and obvious doctrine does not apply. According to them, there is no connection between the doctrine and whether the sale should have been made in the first place. Moreover, plaintiffs contend the viability of this doctrine is questionable in light of recent appellate court cases. Even if the doctrine does apply, the open and obviousness of the danger was a question of fact, not law, because plaintiff-minor stated he was not aware of the ability of BBs to ricochet.

Brown's argues that plaintiffs' cause of action is really based on failure to warn and, therefore, the open and obvious doctrine applies. It cites numerous examples of cases in which courts have found children younger than plaintiff-minor aware of the open and obvious nature of projectiles. It also distinguished Salvi on its facts, contending in that case the plaintiff was an innocent bystander and the shooter/purchaser was only 14 years old. As to proximate cause, there is no evidence supporting this element. According to defendant, plaintiffs presented no evidence to show plaintiff-minor would have changed his behavior had he received warnings or the manual.

The Mid-America Legal Foundation (Foundation) filed an amicus curiae brief in support of defendants' positions. It too argued that plaintiffs' claim is essentially a failure to warn cause of action. By labeling it a negligent sale, plaintiffs are merely attempting to disguise the cause of action and avoid application of the open and obvious doctrine. According to it, the danger was open and obvious and, therefore, there was no duty. It noted that the open and obvious doctrine does not apply to innocent bystanders and, thus, the court reached the correct result in Salvi. However, Salvi is not applicable here because plaintiff-minor was not an innocent bystander. The Foundation contends there is ample evidence to demonstrate plaintiff-minor appreciated the danger and in fact expected it: he shot at the bottles expecting them to break and was also aware of his parents' disapproval. Finally, the Foundation cites several public policy considerations which support a finding that no duty exists to refrain from selling to minors. It is the parents' duty, and not retailers', to supervise and control the activities of their children. In this case, the accident resulted from the parents' failure to control plaintiff-minor's activities and not from the fact the gun was placed in his hands. In addition, serious economic consequences would result from imposing such a duty on retailers. Finally, State law controls the sale of air guns to minors and the store's age policy does not override this law nor does it create a duty independent of it.

The presence or absence of a legal duty is a question of law. At common law, one had a duty not to place dangerous articles or instrumentalities such as firearms or explosives in the hands of children who the merchant knew or should have known were unfit to handle the object because of youth or inexperience and the fact that children might innocently and ignorantly play with it to their injury. Van Skike v. Zussman (1974), 22 Ill. App. 3d 1039, 1043, 318 N.E.2d 244, 247.

In Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394, 95 Ill. Dec. 173, the Illinois Appellate Court, in a case with a factual scenario quite similar to this case, held that the retailer, Montgomery Ward, had "a duty to refrain from selling air guns to minors. Accordingly, we rule that Wards did have a duty to adopt a sales policy which prohibited air guns from being sold to minors ***." ( Salvi, 140 Ill. App. 3d at 911, 489 N.E.2d at 403-04.) The court found it was reasonably foreseeable that the sale of a BB gun (identical to the gun in the case before us) could result in an eye injury if the gun was carelessly used. The court based the merchant's duty and potential liability upon the manufacturer's warnings printed on the packaging. The Salvi court nonetheless did not address the consequences when a store has adopted such a policy but a sale to a minor nonetheless occurs: the scenario in our case.

Brown's met the negligent sale duty established by Salvi: the manager of this particular store instituted a policy prohibiting sales of guns to anyone less than 16 years old. This is all the Salvi court mandated. Brown's substantially complied with this policy since plaintiff-minor was almost 16 years old at the time of the sale to him. We find that substantial compliance with the policy obviates the violation of the duty required in Salvi. Cf. Blankenship v. Peoria Park District (1994), 269 W. App. 3d 416, 423 (even though park district had internal rules requiring at least one lifeguard to remain on duty during adult swim, court found no duty on part of park district to supervise adult swimmers; "failure to comply with self-imposed regulations does not necessarily impose upon municipal bodies and their employees a legal duty"); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 238, 507 N.E.2d 1193, 1198, 107 Ill. Dec. 824 ("a legal duty is normally not established through rules and regulations of a university or internal guidelines of a voluntary, unincorporated association").

Plaintiffs' second argument is that the trial court erred when it found that the sale of the BB gun to plaintiff-minor was not the sale of a firearm within the Firearm Owners Identification Card Act. (Ill. Rev. Stat. 1989, ch. 38, par. 83-1.1 (now 430 ILCS 65/1.1 (West 1992)).) Plaintiffs contend that the exception in the statute applies to guns which fire only globular objects, not guns which may shoot globular as well as tubular objects. They posit that the case of People v. Green (1977), 50 Ill. App. 3d 980, 366 N.E.2d 121, 9 Ill. Dec. 7, establishes that the gun in this case is a firearm. Therefore, because Brown's violated a statute, there is prima facie evidence of negligence and summary judgment was improper.

Defendant counters that the gun in question falls within the exception. According to it, just because the gun may shoot projectiles other than globular projectiles does not take it out of the statutory exception. The statute does not state "only" globular projectiles and, therefore, does not contain such a limitation. Defendant distinguishes Green, arguing that it did not consider whether a gun capable of discharging projectiles in addition to globular objects removes it from the exception.

The statute states:

"'Firearm' means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however:

(1) any pneumatic gun, spring, paint ball gun or B-B gun which expels a single globular projectile not exceeding .18 inch in diameter ***." Ill. Rev. Stat. 1989, ch. 38, par. 83-1.1 (now 430 ILCS 65/1.1 (West 1992)).

In Green, defendant was charged with unlawful use of a weapon for carrying a concealed pellet gun. The gun shot only .177-caliber pellets of a round, tubular nature. The court held that the gun was a firearm and was not within the statutory exception "because it [did] not fire a 'globular' projectile." Green, 50 Ill. App. 3d at 982, 366 N.E.2d at 123.

As defendant points out, the gun in Green did not have the capacity to fire globular objects and the court did not address such a situation. Therefore, Green is not controlling.

We find that the BB gun sold to plaintiff-minor does not fall within the exception. The gun sold to plaintiff-minor shot tubular objects. Because of this, it is a firearm within the language of the statute. If the legislature had wanted to exclude tubular objects, in particular pellets, it would have done so. However, it excluded only those guns which expel globular objects. Merely because the gun was also capable of expelling a globular object does not remove it from the "firearm" definition and place it in the exception. It is illogical to think that because a firearm has the additional capacity to expel a globular object, the weapon is transformed into an excluded item. We find that the sale to plaintiff-minor was a violation of the statute and, therefore, prima facie evidence of negligence. ( Blankenship v. Peoria Park District (1994), 269 Ill. App. 3d 416, 207 Ill. Dec. 325, 647 N.E.2d 287.) The allegations that the gun was sold to plaintiff-minor without packaging and instructions, along with the statutory violation, create an issue of fact as to whether Brown's sale of the gun was a proximate cause of plaintiff-minor's injuries and, therefore, summary judgment was inappropriate. We remand to the circuit court with instructions to proceed accordingly.

Finally, plaintiffs argue that it was error to grant summary judgment for defendant Sportmart. It makes the same arguments concerning Sportmart as it made for Brown's. Sportmart argues that plaintiffs have presented no authority for their position that the store's internal age policy gives rise to a legal duty to refrain from selling. In addition, the open and obvious danger inherent with the gun prohibits liability against it. It too provides numerous examples of courts finding projectiles and their dangerous propensities are open and obvious to youths. It distinguishes Salvi, as did Brown's, but also argues that the risk involved in Salvi was quite different than the risk involved in this case: cleaning and accidental discharge versus ricocheting.

We find that Sportmart too had a policy prohibiting the sale of ammunition to minors. Whether the age limit was 16 or 18 years, Sportmart substantially complied with its own internal policy. For the same reasons that we found Brown's did not violate a duty, we find Sportmart did not violate any duty required by Salvi.

For the foregoing reasons, the decision of the circuit court of Cook County is affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

WOLFSON and BRADEN, JJ., concur.


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