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Hilberg v. F.W. Woolworth Co.3/24/1988
Opinion by JUDGE SMITH
Robert P. Hilberg, a minor, and Robert F. Hilberg, his father, appeal from summary judgments denying their claims of negligence per se, negligent entrustment and negligent failure to exercise due care with respect to defendants F.W. Woolworth Co. and William Jack Myers and their claims of negligent failure to exercise due care and strict liability in tort against defendant Savage Industries, Inc. We affirm.
Savage was the manufacturer of a .22 caliber rifle that was sold by a Woolworth employee to a Mr. Johnson for use by Johnson's fourteen-year-old son, Jeff. Plaintiff, Robert P. Hilberg, a minor child, was injured when he was accidentally shot by his friend, Jeff Johnson, with the .22 rifle which both thought was unloaded. Defendant Myers was the supervisor of the Woolworth employee who had made the sale. It is undisputed that the rifle which caused the injury did not malfunction in any way.
There were no disputed issues of material fact in this case which relate to the questions of liability. Thus, summary judgment was the appropriate way to determine whether plaintiffs were entitled to recover damages.
I.
The Hilbergs first contend that Woolworth's sale of the rifle to Mr. Johnson, for use by his minor son, constituted negligence per se. They argue that the sale constituted "furnishing" or "delivery" of a firearm by Woolworth and Myers to a minor in violation of the provisions of the Gun Control Act of 1968, 18 U.S.C. ยง 921, et seq., and provisions of the Thornton Municipal Code. We disagree.
Both the city ordinance and the Gun Control Act make it unlawful to sell, deliver, or furnish a firearm "directly" to a minor under the age of eighteen years. However, since Woolworth's employee sold the rifle to Mr. Johnson, an adult, it did not directly transfer it to a minor, and thus, the central element of negligence per se, that there be a violation of a statute which prescribes, or proscribes, specific and detailed conduct on the part of the alleged tortfeasor is not met here. See Sego v. Mains, 41 Colo. App. 1, 578 P.2d 1069 (Colo. App. 1978). Accordingly, there was, as a matter of law, no negligence per se.
II.
Next, the Hilbergs argue that Woolworth and its agents were guilty of negligent entrustment in selling the rifle because they knew that Mr. Johnson intended to give it to his minor son as a Christmas present. The undisputed facts, however, disclose that these defendants had no specific knowledge concerning the competence, maturity, judgment or propensity for carelessness or recklessness of either Mr. Johnson or his son, nor did they retain any ability to control the use of the rifle after the sale had been completed. We therefore reject this argument.
Although negligent entrustment is a viable theory upon which liability may be predicated in an appropriate case, the supplier of the instrumentality entrusted must have actual knowledge either of the user's propensity to misuse the instrumentality or of facts from which such knowledge could reasonably be inferred. Baker v. Bratrsovsky, 689 P.2d 722 (Colo. App. 1984). Such supplier must also have some ability subsequently to control the user or the manner in which the instrumentality is used. Hasegawa v. Day, 684 P.2d 936 (Colo. App. 1983)
Here, there is no evidence that defendants had any knowledge of Mr. Johnson's supervision habits, shortcomings, or qualities as a parent. Absent knowledge to the contrary, defendants could reasonably expect that, although the guns were purchased for use by a fourteen-year-old, the pare
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