For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
Sometime between one and two o'clock in the morning of April 3, 1957, Sandra Hauck, 15 1/2 years old, shot and severely injured Thomas Stoelting with a .45-calibre automatic pistol.
Stoelting sued Sandra and her parents, Virginia and Anthony Hauck, Jr. In his amended complaint, he charged Sandra with negligence in firing the gun, and her parents with negligence in supervising their daughter and in permitting the gun to remain in a place accessible to her. He also charged the defendants with violations of N.J.S. 2 A:151-10 and 11, which outlaw furnishing to and use by minors of Sandra's age of firearms in certain circumstances.
All of the defendants denied negligence and asserted the affirmative defenses of contributory negligence and assumption of risk. At the conclusion of the defendants' case, the trial judge removed the affirmative defenses from the jury's consideration on the ground there was insufficient evidence to support them. The jury returned a verdict of $100,000 for the plaintiff, against all three defendants, and judgment
was entered thereon. On appeal, the judgment was affirmed by the Appellate Division, 56 N.J. Super. 386 (1959), and we granted certification. 30 N.J. 564 (1959).
The evidence at the trial showed that Stoelting was a mining engineer, 52 years old when he was shot. He was joined with the defendant, Anthony Hauck, Jr., one Rolf Meuer, and others in a speculative mining venture. He was married, but separated from his wife. For some six years prior to the shooting Stoelting stayed as a guest in the Hauck home on numerous occasions and often for extended periods of time. During the six months before the shooting, he stayed there one or two nights a week.
On the evening of April 2, 1957, there was a business conference at the Hauck home. Afterwards, Stoelting and Anthony Hauck, Jr., had a conversation in the dining room on the first floor. During the conversation, Stoelting said (of his wife, according to his testimony), "She has had her last chance to save her neck." Sandra had already gone up to her bedroom on the second floor, but she apparently overheard Stoelting's remark, and interpreted it as a threat to her mother. At about one o'clock, Stoelting and Hauck went upstairs to the bedroom they shared, and retired to their separate beds. Sandra, according to her answers to interrogatories which were read to the jury, took a gun from an unlocked desk in her room, thinking it unloaded. She entered the room occupied by Stoelting and her father, and walked to the foot of Stoelting's bed. She asked him whether he had been talking about her mother. Before he answered she "pulled the gun up in order to frighten him and it suddenly went off." At the trial she testified to the same effect.
Stoelting testified that he had fallen asleep and awoke to hear Hauck say, "Tom, were we not talking about Georgia [Stoelting's wife]?" After Stoelting's affirmative reply, Hauck went on, "Sandra thinks we were talking about Jean [Virginia Hauck]." Stoelting testified that he turned and saw Sandra standing at the foot of his bed with a gun in
her hand. She said "Thomas Stoelting, I am going to kill you now." As Hauck shouted, "don't shoot," the gun discharged a bullet that hit Stoelting in the abdomen. Sandra ran from the room screaming "I'm sorry, I'm sorry."
The gun Sandra used belonged to Rolf Meuer, who first came to the Hauck home in March 1956, and stayed there on occasion up to and including the date of the shooting. Stoelting originally owned the gun and had given it to Meuer in 1953. When Meuer first came to the Hauck household, he brought it with him, and left it loaded in the unlocked desk from which Sandra took it over a year later. The Haucks were aware of its presence in the house, and Virginia Hauck knew it was in the unlocked desk for at least five months before the shooting. She removed it from the desk on Fridays, when a maid came from Clinton Reformatory to work in the house.
Sandra had fired only one shot from Meuer's pistol before April 3, 1957. This was under supervision at a firing range during the summer of 1956, and was known by her parents. The evening before that occasion, Sandra handled Meuer's gun, and others, at home in the presence of her parents, Stoelting, and Meuer.
Stoelting testified that the Haucks knew their daughter sometimes played with Meuer's pistol. He said that in August 1956 he saw Sandra coming through the Hauck kitchen wearing the gun in a holster. He immediately told her mother, Virginia Hauck, that it was "very foolish" to let Sandra play with it. She replied that Sandra "knows what she is doing." Stoelting further testified that several weeks later he saw Sandra coming downstairs with the weapon, and that as she passed him she pulled it out of its holster, making a "quick draw." He asked her if the gun was loaded. She answered, "yes," and walked into the kitchen where her mother was. Stoelting called after her, "Put this thing down, it is very foolish, dangerous." When he complained to Mrs Hauck, she told him to talk to her husband. That evening he told Hauck of the episode, and
Hauck replied that Sandra was not foolish with weapons and knew how to handle them. However, Sandra's answers to interrogatories, which were read in evidence, revealed that she was never given instruction in the handling of pistols.
The plaintiff introduced in evidence two photographs, one of Sandra taking Meuer's picture while she was wearing a hip holster and revolver, and the other of Sandra posing with a pointed weapon. The jury could have found that the photographs were taken by Anthony Hauck with his own camera in the rear yard of his home.
The elder Haucks denied knowledge of these photographs. They also denied that Stoelting had warned them of their daughter's activities with guns, or that they had any other knowledge that would have put them on notice that the accessibility of the .45 automatic pistol would create a condition dangerous to others.
The adult defendants urge on this appeal that there was insufficient evidence of negligence on their part to submit to the jury. Under the evidence before them, the jury could have found that the adult defendants, who had parental control over Sandra, were negligent in permitting her access to the gun, knowing she had virtually no experience or instruction in safely handling guns, and having been warned of her attraction to them and her brandishing them about the house. See 2 Restatement, Torts, § 308 (1934).
The risk created by the adult defendants, in allowing Sandra access to the gun, extended beyond her possible misuse of it at play. There was also the danger that the accessibility of the gun would render highly dangerous a rash, emotionally immature act on Sandra's part. We need not consider what duty of care to protect others is imposed on parents by the availability to children in the household of instrumentalities of potential harm, such as poisons, knives, and the like. But firearms are so inherently dangerous and so magnetic to the young that a person of ordinary prudence in the exercise of reasonable care will take cautious preventive measures commensurate with the great harm that
may ensue from the use of the gun by someone unfit to be entrusted with it. As Justice Burling said in Mazzilli v. Selger, 13 N.J. 296, at pages 300 and 301 (1953), where this court held it to be a jury question whether a mother who permitted her minor son access to a shotgun in the house was liable to an adult whom he intentionally shot:
"Firearms have been a subject of legislative control, which indicates a recognition of damage which may ensue from the use of a dangerous instrument, especially in incompetent or unqualified hands. [Citing N.J.S. 2 A:151-10 and 11] * * *
The duty in the present case is to be found in the principle that one has a duty not to permit a third person to 'use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of ...