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Pair v. Blakly

New Jersey Superior Court, Appellate Division

Decided: May 31, 1978.


On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Fritz, Botter and Ard. The opinion of the court was delivered by Fritz, P.J.A.D.


[160 NJSuper Page 15] This appeal springs from an incident in which the infant plaintiff was shot by a "BB," a small pellet projected from a gun designed to fire such shot. The third-party defendant, George Krug, was impleaded by defendants as the one who sold the BB's, in a third-party complaint which charged in its first count that the BBs were "negligently and carelessly sold * * * in violation of the statutes in such cases provided." In a second count

[160 NJSuper Page 16]

to that complaint the allegations of the first count were repeated and contribution was sought under the Joint Tortfeasors Contribution Law. It appears undisputed that the sale was to one younger than 18 years of age.

Krug moved for summary judgment which was granted. After the principal case was concluded by a trial resulting in a verdict for the infant plaintiff in the amount of $93,000, for disability, suffering and damages incurred as a result of her having been struck in the eye by a BB, a consent judgment aggregating a "total payment" of $100,000, including interest, was entered. Defendants thereafter filed a notice of appeal from the grant of Krug's motion for summary judgment.

Summary judgment was granted on the narrow basis that BB shot was not a "blank cartridge" within the intendment of N.J.S.A. 2A:151-10 which prohibits the sale of certain weapons and explosives "or any loaded or blank cartridge therefor." We need not presently decide the correctness of this determination because we are satisfied that in the circumstances of this matter judgment should not in any event have been entered on such a limited view.

Without regard to the question of a civil duty imposed by statute, we consider the doctrine of common law negligence and the circumstances of this case.*fn1 Justice Jacobs defined negligence succinctly in Ettin v. Ava Truck Leasing, Inc. , 53 N.J. 463 (1969):

[160 NJSuper Page 17]

In Rappaport v. Nichols , 31 N.J. 188 (1959) we pointed out that negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others (Schaublin v. Leber , 50 N.J. Super. 506, 510 (App. Div. 1958)); that the standard of care is the conduct of the reasonable person of ordinary prudence under the circumstances (Ambrose v. Cyphers , 29 N.J. 138, 144 (1959)); and that the negligence may consist in the creation of a situation which involves unreasonable risk because of the expectable action of others (Brody v. Albert Lifson & Sons , 17 N.J. 383, 389 (1955)). 31 N.J. , at 201. * * * [at 483]

This is entirely consonant with 2 Restatement, Torts 2d, ยง 308 at 100 (1965):

It is negligence to permit a third person to use a thing or to 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 to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Ordinarily we leave such matters to a jury. As we said in Schaublin v. Leber , 50 N.J. Super. 506 (App. Div. 1958):

Where a storekeeper purveys, to one under 18, a product such as BBs which are primarily designed for a use that if improperly managed is dangerous, we will not say as a matter of law that only a conclusion of reasonableness of that conduct seems warranted. See Stoelting v. Hauck , 32 N.J. 87, 95-96 (1960).

Beyond this, the fact of the matter is that sale to a person under the age of 18 or possession by a person under

[160 NJSuper Page 18]

the age of 18*fn2 of a gun from which BBs may be fired is criminal conduct. N.J.S.A. 2A:151-10, N.J.S.A. 2A:151-11; N.J.S.A. 2A:151-1(a). While, as the trial judge noted, BBs can be used for other things, the use for which they are obviously designed is one in which, if those under 18 are involved, criminal conduct is almost certainly a prerequisite.

In such a case we believe the law should permit inquiry, in a civil suit, into the reasonableness of the seller's conduct.

We reverse the summary judgment and remand for trial on the issue of Krug's negligence vel non as a joint tortfeasor.

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