Vaughn v. Nevill

NO. 4-96-0550
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
MICHAEL A. VAUGHN, JR., a Minor, by ) Appeal from
MICHAEL A. VAUGHN, SR., his father ) Circuit Court of
and next friend, and MICHAEL A. ) Sangamon County
VAUGHN, SR., and PATRICIA VAUGHN, ) No. 86L153
Individually, )
Plaintiffs-Appellants, )
v. )
DOUG NEVILL, MICHAEL NEVILL, )
S/R INDUSTRIES, INC., a Corporation,)
Defendants, )
and ) Honorable
LANHAM HARDWARE CO., a Corporation, ) Jeanne E. Scott,
Defendant-Appellee. ) Judge Presiding.
_________________________________________________________________

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 instru-
mentality and that Lanham did not breach any duty owed to plain-
tiffs.
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), 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 judg-
ment 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 (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 (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 (1992); Kellner v. Bartman, 250 Ill. App. 3d
1030, 1033, 620 N.E.2d 607, 609 (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 (1991); Westwood Forum, Inc. v. City of Springfield, 261 Ill.
App. 3d 911, 916, 634 N.E.2d 1154, 1158 (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 Ill. App. 3d 771, 778,
559 N.E.2d 1173, 1177 (1990).
"As this Court stated in Watts v. Bacon & Van
Buskirk Glass Co., (1958), 20 Ill. App. 2d
164, 168, 155 N.E.2d 333:
'The term "inherently dangerous"
means that type of danger which
inheres in the instrumentality or
condition itself at all times,
thereby requiring special precau-
tions to be taken with regard to it
to prevent injury and does not mean
danger which arises from mere casual
or collateral negligence of others
with respect to it under particular
circumstances. Concisely stated,
the term means, dangerous in its
normal or nondefective state as for
example, explosives and poisons.'
It was also noted in Snow v. Judy (1968), 96
Ill. App. 2d 420, 422-23, 239 N.E.2d 327,
that:
'Where the experience of mankind
teaches that the instrumentality,
the conduct or the physical condi-
tion is per se inherently dangerous,
society imposes a duty to act or to
refrain from acting in a manner
reasonably calculated to avoid inju-
ry to others from the known or
readily apparent danger.'" Woodward
v. Mettille, 81 Ill. App. 3d 168,
176, 400 N.E.2d 934, 942 (1980).
The fact that injury can be inflicted by the instrumen-
tality does not make it an inherently dangerous instrumentality.
Pitts v. Basile, 35 Ill. 2d 49, 52, 219 N.E.2d 472, 474 (1966)
(darts). A product is inherently dangerous if it is dangerous in
its normal or nondefective state. Fallon v. Indian Trail School,
Addison Township School District No. 4, 148 Ill. App. 3d 931, 935,
500 N.E.2d 101, 103 (1986). Whether an instrument is inherently
dangerous may be determined as a matter of law. Mealey, 202 Ill.
App. 3d at 778, 559 N.E.2d at 1177 (nunchucks not inherently
dangerous); Fallon, 148 Ill. App. 3d at 935, 500 N.E.2d at 103
(trampoline is not an abnormally dangerous instrumentality); Cole
v. Housing Authority of LaSalle County, 68 Ill. App. 3d 66, 71-72,
385 N.E.2d 382, 387 (1979) (metal stakes not inherently dangerous);
Maramba v. Neuman, 82 Ill. App. 2d 95, 104, 227 N.E.2d 80, 83
(1967) (boomerang is not an inherently dangerous instrumentality).
In Pitts, the supreme court stated:
"There are many things used by children
that may be said to be unsafe when used for
the purpose for which they are intended. A
baseball, a baseball bat, a penknife, a Boy
Scout hatchet, a bicycle, all have the capac-
ity to injure the user or others in the course
of their normal use. They are not, however,
to be categorized as 'dangerous instrumentali-
ties.' As was said by the Tennessee court in
Highsaw v. Creech, 17 Tenn. A. 573, 69 S.W.2d 249, 252, 'an air gun is not a dangerous
instrumentality of itself, but is in fact a
toy. *** The fact alone that an injury may
be inflicted by such a toy does not make of it
a dangerous instrumentality in the sense that
the term is generally used.' In Morris v. Toy
Box, (Cal. App. 1962) 22 Cal. Rptr. 572, 574-
5, a complaint brought by a minor against a
retailer alleging that the retailer knew that
the intended user of a bow and arrow was the
purchaser's [10]-year-old boy was dismissed,
the court saying, 'the bow and arrow has been
in use by young and old alike for thousands of
years. *** To us it is simply inconceivable
that a 10-year-old boy, much less his mother,
would be unacquainted with the use of so
common an article as the one here in ques-
tion.' See also, White v. Page, (Ohio App.
1950) 105 N.E.2d 652." Pitts, 35 Ill. 2d at
51-52, 219 N.E.2d at 474.
A slingshot is not dangerous unless improperly used. We
agree with the trial court that the slingshot is not an inherently
dangerous instrument.
The plaintiffs also argue that Lanham had a duty not to
sell a slingshot to a minor of 11 years of age. In a negligence
case, the existence of a duty, i.e., whether defendant and
plaintiff stood in such a relationship to one another that the law
imposed on defendant an obligation of reasonable conduct for the
benefit of plaintiff, is a question of law. The factors to be
considered in determining the existence of a duty include the
reasonable foreseeability of injury, the likelihood of injury, the
magnitude of the burden of guarding against injury, and the
consequence of placing that burden on defendant. Ward v. K mart
Corp., 136 Ill. 2d 132, 140-41, 554 N.E.2d 223, 226-27 (1990).
Although we agree with the trial court that Lanham had no
duty to refrain from selling the slingshot to Endres in this case,
because an 11-year-old should be aware of the dangers presented by
a slingshot, we need not rely solely on the absence of a duty in
this case. Even if it did exist as plaintiffs suggest, i.e., that
defendant should not have sold or entrusted the slingshot to an 11-
year-old, there were no facts presented in which a breach of that
duty would be established.
Endres' affidavit did not say he was not accompanied by
an adult when he purchased the slingshot. While plaintiffs are not
required to prove their case at summary judgment stage, they must
present some facts to support the elements of their claims.
Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444,
451 (1984).
The supreme court in Pitts referred to section 390 of the
Restatement (Second) of Torts:
"'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, inexperi-
ence, 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.'" Pitts, 35 Ill. 2d at 52-
53, 219 N.E.2d at 474, quoting Restatement
(Second) of Torts 390, at 314 (1965).
In this case, there is no evidence defendant knew that
Endres would use the slingshot in an unreasonable manner so as to
create a risk of physical harm or would share it with others who
would so act. Nor is there any evidence of Endres' experience such
that defendant had reason to know such actions would be likely. As
to Endres' youth, the trial court apparently found that age alone
would be no indication of responsible use of a slingshot since a
youthful person would be aware of the danger. In any event, it was
not 11-year-old Endres who acted inappropriately, but 14-year-old
Doug. Plaintiff has presented no facts to demonstrate a breach of
any duty on the part of Lanham.
The judgment of the circuit court of Sangamon County is
affirmed.
Affirmed.
STEIGMANN, P.J., and KNECHT, J., concur.