Sherk v. Daisy-Heddon

LIPEZ, Judge,

dissenting:

I agree with the opinion of President Judge Cercone that Daisy-Heddon’s motion for directed verdict on appellant’s 402B cause of action was properly granted. Since I disagree with the panel’s resolution of the other two issues, however, I should affirm the entry of judgment in Daisy-Heddon’s favor.

1.

Appellant’s claim that the trial court erred in refusing to admit evidence tending, purportedly, to show the ordinary knowledge, common to the community, of the characteristics of Daisy-Heddon guns in general was not raised in post-trial motions filed with the court below, and therefore is waived. Pa.R.Civ.P. 227.1; Canada Dry Bottling Co. v. Mertz, 264 *338Pa.Super. 480, 484, 400 A.2d 186, 188 (1979); Leopold v. Davies, 246 Pa.Super. 176, 178, 369 A.2d 868, 869-70 (1979); see Dilliplaine v. Lehigh Valley Transit Co., 457 Pa. 255, 322 A.2d 114 (1974); see also Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975).

2.

It is clear that a court must charge a jury, when so requested, on negligence as well as strict liability when the trial has brought forth evidence on which a jury reasonably could find a party negligent. Pegg v. General Motors, 258 Pa.Super. 59, 79, 391 A.2d 1074, 1083 (1978). Upon examining the record, I conclude that the jury could not, on the evidence adduced, find that Daisy-Heddon had been negligent. “A duty to warn exists only when those to whom the warning would go can reasonably be assumed to be ignorant of the facts which a warning would communicate. If it is unreasonable to assume [that] they are ignorant of the facts, there is no duty to warn.” Burton v. L. O. Smith Foundry Products Co., 529 F.2d 108 (7th Cir. 1976).

In the case before us, Robert Saenz testified that a friend had told him that the Model 880 was “a lot more powerful” than an ordinary BB gun;. that a projectile fired from the Model 880 would pierce both sides of a steel can and shatter glass bottles, and that a BB gun, ordinarily, was capable of neither feat; that his father had told him not to use the gun until the father could instruct him in its proper use; that he expected to be able to kill rodents with the Model 880; and that a number of people, including both his parents, had told him never to point any gun at anyone. The evidence thus shows, clearly, that Robert was well aware of the gun’s power and ability to cause serious harm, and of the necessity of great care in its use. A warning by Daisy-Heddon specifically that a projectile from the gun could penetrate a certain distance into a human body, and thereby, perhaps, cause death would therefore have been unnecessary. Because he had knowledge of the general dangers, it cannot be said that he should have been specially warned of such a narrowly defined possibility. Speyer, Inc. v. Humble Oil and Refining Co., 275 F.Supp. 861 (W.D.Pa.1967), aff’d, 403 F.2d *339766 (3rd Cir. 1968). There is no duty to warn that “a knife or an ax will cut, a match will take fire, dynamite will explode, or a hammer may mash a finger.” W. Prosser, Handbook of the Law of Torts 649 (4th ed. 1971).

In addition, because a seller has substantially the same duty to warn under a theory of negligence as under strict liability, see Burton v. L. O. Smith Foundry Products Co., supra at 111 citing Prosser, supra at 659 n. 73, comment j to section 402 A may be applied to the instant matter. That provision states, in relevant part:

But a seller is not required to warn with respect to products . . . which are only dangerous or potentially so ... when the danger ... is generally known and recognized. ..
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.[1]

The literature packed with the Model 880 included these statements:

The Pump-Up Air Gun is a new, much more powerful type gun than the traditional Daisy spring-air B • B gun. It shoots with four to six times the power of the spring-air B • B gun and must be treated with great care and respect.
ALWAYS HANDLE A GUN AS IF IT WERE LOADED. “Handling” means every time you touch your gun. It also means that you must never point your gun toward any living thing nor [sic] at anything that could be damaged by an accidental shot.

(Emphasis in original.) The “Code of the Daisy Rifleman,” in another pamphlet included with the gun, also emphasized these cautions:

*340Be sure of your target before you pull the trigger. Never point a gun at anything you do not want to shoot. NEVER POINT A GUN AT ANYONE.

(Emphasis in original.) Obviously, had Robert acted according to the above instructions, he would never have pointed his gun at or near James Sherk, and Sherk would never have been injured by it. Comment j indicates that, having provided warnings which, if followed, would have prevented the death of Sherk, Daisy-Heddon had a right to assume that they would be read and heeded; the testimony of Robert and his parents that they had never read them places no additional responsibility upon Daisy-Heddon.

I conclude, for the above reasons, that, although the trial court’s legal basis therefor was incorrect, his refusal to charge the jury on negligence should be sustained. Because appellant waived her “community knowledge” argument, and was properly put out of court on her 402 B claim, I should affirm the order and judgment of the court below.

. This comment was quoted with approval in Speyer v. Humble Oil and Retiring Co., 275 F.Supp. 861, 869 (W.D.Pa.1967), aff'd 403 F.2d 766 (3rd Cir. 1968). Had the issue not been waived, I should have considered the applicability of comment j to appellant’s first argument.