Bojorquez v. House of Toys, Inc.

Opinion

BROWN (Gerald), P. J.

Diane Bojorquez, a minor, appeals through Rachel Bojorquez, her guardian ad litem, the summary judgment dismissing her complaint against Southland Corporation (dba 7-11 Food Stores), William and Hollis Wade (dba 7-11 Stores), and House of Toys, Inc.

Four children went to a 7-11 Market and one of them bought a slingshot distributed by House of Toys. Charles Sellers, a 10-year-old member of the group, used this slingshot to fire a projectile which hit Diane in the eye. In suing the retailer and the wholesaler Diane contends: 1) they were negligent in selling slingshots to children who because of their youth are incapable of using them without creating an unreasonable risk of physical harm to others, 2) they are strictly liable because they distributed and sold defective merchandise which contained no warning about the danger of slingshots thus making them unreasonably dangerous to users, consumers and third parties and 3) House of Toys aided and abetted the assault by selling slingshots to Southland knowing Southland would resell them to inexperienced and incompetent youths. Diane claims the trial court erred in dismissing the first two counts; she does not contest dismissal of the third.

[933]

On appeal we ask whether Diane has in either instance stated a cause of action. For a complaint in negligence to succeed there must be a duty requiring a certain standard of conduct, a failure to conform to that standard, a close causal connection between the conduct and the resulting injury and actual damages (Prosser, Law of Torts (4th ed.) at p. 143;

Connelly

v.

State of California,

3 Cal.App.3d 744, 755 [84 Cal.Rptr. 257]). Does a wholesaler or a retailer have a duty to make sure his products are sold only to those persons or classes of persons who will not use them to harm others? In support of her contention that he does, Diane points to the Restatement Second of Torts, section 390 which states: “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”