Holmes v. J. C. Penney Co.

Opinion

ASHBY, J.—

Statement of the Case and Facts

Michael Holmes, a minor, appeals through his guardian ad litem, Ollie Holmes, the order of dismissal of his third amended complaint against J. C. Penney Company which was entered after respondent’s (hereinafter Penney’s) demurrer was sustained without leave to amend.

Appellant’s third amended complaint alleges that Penney’s sold C02 cartridges to defendant Damon Walker, a minor, who in turn used those cartridges to power a pellet gun which belonged to another defendant, Jimmie Petty, also a minor. It is further alleged that while Damon Walker was shooting at birds with a pellet gun appellant was struck and injured by a pellet fired from the pellet gun. It is alleged in the first cause of action against Penney’s that Penney’s breached a duty of care to appellant when the C02 cartridges (manufactured and sold by Penney’s) were sold to a minor, Damon Walker, and that the injuries to appellant were foreseeable. In the second cause of action against Penney’s, appellant alleges that Penney’s was strictly liable for his injuries due to a defect arising from Penney’s failure to warn against the potential harm to bystanders in the event that cartridges are used to power pellet guns operated by minors.

Discussion

On this appeal we must consider whether appellant was able to state a cause of action against Penney’s in either negligence or products (strict) liability. Appellant alleges that Penney’s had a duty to prevent sales of C02 cartridges to minors because such cartridges may

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be used to power pellet guns which, in the hands of a minor, present a foreseeable risk of harm to others such as appellant.

A similar question was presented in

Bojorquez

v.

House of Toys, Inc.

(1976) 62 Cal.App.3d 930, 933 [133 Cal.Rptr. 483, 94 A.L.R.3d 386]. There, the plaintiff sought to state causes of action in negligence and strict liability against a retailer of toy slingshots. The court stated that the plaintiff was in essence requesting it to find the retailer and distributor negligent for “selling toy slingshots to the class of persons for whom they were intended . . . . ” The court deemed such a request as one for a ban on sales of toy slingshots by “judicial fiat.”