Zerby v. Warren

210 N.W.2d 58 (1973)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P, a 14-year-old minor, died as a result of intentionally sniffing glue. P sued D, the owner of the Coast-to-Coast Store, and Robert Deike, his employed clerk, for selling the glue negligently and in violation of Minn. St. 145.38. P and Randy Rieken went together to the shopping center and purchased two-pint containers of Weldwood Contact Cement at the store. The glue contained toluene and was not a part of a packaged kit for construction of a model automobile, airplane, or similar item. At the time of the sale, neither D nor Deike were aware that the sale was in violation of Minn. St. 145.38, which had become effective a few weeks before the sale. Rieken and P left the shopping center and within a few hours inhaled the fumes from the glue. P's death resulted from the inhalation of the fumes, which had an injurious effect on his central nervous system, causing him to fall into a creek and drown. The Minnesota Legislature recognized the potential harm which could result to minors from the sniffing of glue and enacted provisions to control its sale and use.

Any glue or cement containing toluene, benzene, zylene, or other aromatic hydrocarbon solvents, or any similar substance was prohibited for sale to minors except the glue or cement contained in a packaged kit for the construction of a model automobile, airplane, or similar item. A violation of these statutory provisions is a misdemeanor. P sued Ds for wrongful death. Ds sued Rieken for contributory negligence. P then added claims against Rieken. Ds answered with comparative negligence and assumption of the risk. During pretrial, the court held that there was absolute liability which denied comparative negligence and assumption of the risk. P get the verdict, and the court denied Ds’ claims against Rieken. Ds appealed.