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03/05/97 MICHAEL A. VAUGHN v. DOUG NEVILL

March 5, 1997

MICHAEL A. VAUGHN, JR., A MINOR, BY MICHAEL A. VAUGHN, SR., HIS FATHER AND NEXT FRIEND, AND MICHAEL A. VAUGHN, SR., AND PATRICIA VAUGHN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DOUG NEVILL, MICHAEL NEVILL, S/R INDUSTRIES, INC., A CORPORATION, DEFENDANTS, AND LANHAM HARDWARE CO., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 86L153. Honorable Jeanne E. Scott, Judge Presiding.

Honorable John T. McCullough, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiffs Michael A. Vaughn, Jr. (Michael Jr.), a minor, by Michael A. Vaughn, Sr., his father and next friend, and Michael A. Vaughn, Sr., and Patricia Vaughn, individually, appeal from a summary judgment entered in the circuit court of Sangamon County in favor of defendant Lanham Hardware Co. (Lanham). This lawsuit sought to recover damages resulting from injury to the eye of Michael Jr. as the result of use of a slingshot purchased from defendant. The original complaint also sought damages against S/R Industries, manufacturer of the slingshot; Doug Nevill (Doug), user of the slingshot; and Michael Nevill, parent of Doug and on whose property the injury occurred. Only Lanham is involved in this appeal.

The issues are whether, as a matter of law (1) Lanham had a duty not to sell a slingshot to a minor of 11 years of age; and (2) a slingshot is an inherently dangerous weapon, or whether that is a question of fact precluding entry of summary judgment. We affirm.

Plaintiffs' third-amended complaint alleged that Lanham, a Delaware corporation, engaged in business in Sangamon County, Illinois, by operating a store in Springfield from which it sold various "playthings," including the Marksman slingshot, the subject of this suit. It was alleged (1) Lanham negligently and carelessly sold the slingshot to a minor and (2) knew or should have known it to be inherently dangerous because objects could be shot with force which could seriously injure persons hit by the objects. On or about May 7, 1984, plaintiff Michael Jr. was struck in the left eye by an object fired from the slingshot by Doug, then under the age of 18. As a direct and proximate result, plaintiff was injured. Count III sought damages for the child's injuries, and count V sought to recover medical expenses incurred by his parents.

The affidavit of Mark Endres indicated he bought the slingshot from Lanham's store and gave it to Doug. At the time of the purchase, Endres was 11 years old. According to the deposition testimony of Michael Jr., at the time of the injury he and Doug were about 14 years old. Doug shot a rock at him from a distance of about three feet.

Joyce Lanham Rodgers, defendant's company secretary, testified there was no way to determine from which of defendant's two stores the product was purchased. She did not work in the sporting goods area of the store. The store did sell slingshots from time to time, but she did not recall the brands. The company complied with federal rules regarding sale of firearms, but anyone could purchase a slingshot. That was not federally controlled. She was not involved directly in sales. Her brother, Ron Lanham, would have been involved with sales to customers. From her experience, there were no restrictions on sales of slingshots.

In the motion for summary judgment, defendant argued plaintiffs failed to establish that (1) the slingshot was purchased from Lanham, and (2) the slingshot was an inherently dangerous instrumentality so as to support a cause of action for absolute liability. In opposition to the motion for summary judgment, plaintiffs resubmitted the affidavit of Endres and a photocopy of Rodgers' deposition No. 2, a portion of a container for a Marksman Folding Slingshot 3040, which contained the warning, "This is not a toy and should be used only with adult supervision." Plaintiffs also attempted to submit an unsigned affidavit of Doug to reflect that the slingshot was accidentally, not intentionally, discharged. Plaintiffs' motion to submit Doug's affidavit indicated Doug was reluctant to sign it without first having his attorney review it, and his attorney was out of town.

Based on the affidavit of Endres, the trial court found a genuine issue of material fact as to whether the slingshot was purchased at defendant's store. However, the trial court concluded the slingshot in this case was not an inherently dangerous instrumentality and that Lanham did not breach any duty owed to plaintiffs.

After the trial judge issued her letter memorandum, and before judgment was entered, plaintiffs filed a motion to set aside the summary judgment. Attached to that motion was the affidavit of Ron Lanham to the effect that Rodgers' deposition No. 2 was similar, if not identical, to boxes containing slingshots Lanham sold prior to 1991. Nevertheless, the trial court entered summary judgment after considering plaintiffs' motion and the supplemental brief subsequently filed by plaintiffs.

"The purpose of summary judgment is to determine whether there are any genuine issues of material fact ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867), and summary judgment should be granted when 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law' (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c)). Although summary judgment is an expeditious method of disposing of a lawsuit, it should only be allowed when the right of the moving party is clear and free from doubt. ( Purtill, 111 Ill. 2d at 240.)" Colvin v. Hobart Brothers, 156 Ill. 2d 166, 169-70, 620 N.E.2d 375, 377, 189 Ill. Dec. 407 (1993).

On appeal, the propriety of granting summary judgment is considered de novo. Delaney v. McDonald's Corp., 158 Ill. 2d 465, 467, 634 N.E.2d 749, 750, 199 Ill. Dec. 696 (1994). The reviewing court considers anew the facts and law relating to the case and determines whether any genuine issue of material fact exists, and if none exists, whether the judgment was correctly entered as a matter of law. University of Illinois v. Continental Casualty Co., 234 Ill. App. 3d 340, 343, 599 N.E.2d 1338, 1341, 175 Ill. Dec. 324 (1992); Kellner v. Bartman, 250 Ill. App. 3d 1030, 1033, 620 N.E.2d 607, 609, 189 Ill. Dec. 639 (1993). Where the record presents a question of law only, summary judgment is an appropriate remedy. Marshall v. City of Centralia, 143 Ill. 2d 1, 6, 570 N.E.2d 315, 317, 155 Ill. Dec. 802 (1991); Westwood Forum, Inc. v. City of Springfield, 261 Ill. App. 3d 911, 916, 634 N.E.2d 1154, 1158, 199 Ill. Dec. 800 (1994).

We first consider whether, as a matter of law, a slingshot is an inherently dangerous weapon or whether this is a question of fact precluding entry of summary judgment. Illinois recognizes absolute liability relating to inherently dangerous instrumentalities. Mealey v. Pittman, 202 ...


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