I’m bracing for yet another 24-hour marathon of A Christmas Story on the local cable channel. And, coincidentally, I’m contemplating giving my seven-year-old a Red Ryder BB gun for Christmas. Yes, the very same Red Ryder BB gun prominently featured the 1983 classic: A Christmas Story.
Although I have handled product liability cases for many years, I have never defended BB gun products case, and I haven’t picked up a Red Ryder in at least 30 years. So, in the process of crafting a persuasive argument to my wife for permission to purchase a Red Ryder for my seven-year-old, I consulted the knowers of all things: Google and LexisNexis.
Are these things dangerous?
If you are a fan of A Christmas Story, it won’t surprise you that a study published in the journal Pediatrics in December 2019 found that BB guns accounted for 80% of non-powder firearm injuries to children under 18. The most common injury was a foreign body in the eye. Pediatrics (2019) 144 (6). I think the journal Pediatrics and A Christmas Story make it quite clear that these things are dangerous.
Should Daisy warn of the potential danger of its BB gun?
Generally speaking, a plaintiff can establish a failure to warn claim in the product liability context by showing: the product manufacturer had a duty to warn the plaintiff of the product’s danger, the warnings provided were inadequate, and the manufacturer’s breach of duty proximately caused the plaintiff’s injuries. To establish a duty to warn the plaintiff must show: 1) the manufacturer put the product in the stream of commerce, 2) the product was substantially unaltered when the plaintiff was injured, 3) the product was imminently dangerous when used as intended, and 4) the product manufacturer knew or should have known the product could create a danger when used as intended. Keep this in the back of your mind, we’ll return to it when discussing the cases below.
Are the warnings adequate?
Google led me faithfully to photographs of packaging for the Red Ryder and a seven-page Operation Manual. Warnings on the box and in the Operation Manual make a few things very clear: The BB gun is not a toy. It is recommended for use by those 10 years or older. Adult supervision required. Wear safety glasses. The Operations Manual also outlines a number of universal gun safety rules, including an instruction to keep the muzzle pointed in a safe direction. I have never denied having a weird sense of humor, so I’ll admit to laughing out loud at the next two warnings:
- THIS GUN CAN CAUSE THE LOSS OF AN EYE.
- THE LOSS OF AN EYE IS A TERRIBLE THING.
An old quote from an Alabama political candidate seems appropriate here: “Makes sense to me, does it to you? Yep, makes sense to me. I could lose an eye, and that would be terrible.
What have the Courts said about BB guns and failure to warn?
- The Colorado Court of Appeals held “[t]he potential for danger inherent in a BB gun is readily apparent and a warning for the obvious is not a requirement of the doctrine of products liability.” Bookout v. Victor Comptometer Corp., 40 Colo. App. 417, 419, 576 P.2d 197, 198 (1978)
- The United States District Court for the Middle District of Florida dismissed a products liability suit against a BB gun manufacturer holding as a matter of law that the warnings accompanying the subject BB gun were clear and reasonable. The Court rejected Plaintiff’s theory that warnings should have been placed on the BB gun itself. The Court noted the risk of serious injury from misuse or careless use of a gun is open and obvious; consequently, the manufacturer did not have a duty to place a warning on the gun itself. Marzullo v. Crosman Corp., 289 F. Supp. 2d 1337 (M.D. Fla. 2003)
- In a very tragic case out of the Seventh Circuit, a child was killed instantly after being struck in the eye with a BB at close range by another child. In affirming summary judgment for the manufacturer, the Court held the Plaintiffs were aware the BB gun could pierce “the eye and flesh”. The BB gun did not place a user at risk of injuries different than an average consumer might anticipate. Moss v. Crosman Corp., 136 F. 3d 1169 (7th Cir. 1998)
Conclusions of law (sort of)
He’s seven; that’s only three years away from ten. The packaging clearly says recommended for ten or older. So, close enough? Okay, I just can’t…I can’t craft an argument here that survives Rule 11 sanctions. And Rule 11 sanctions are severe at my house! So, no BB gun for the kiddo this year. I’m not even making the argument to my wife. But, I am calendaring this research for follow-up in three years. Because, when—not if—I buy my future 10-year-old a Red Ryder BB gun, two things are well settled: 1) Daisy’s warnings are clear, and 2) It’s common knowledge, in cinema and the courts, that you could shoot your eye out.
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