GERARDO JIMENEZ, JR., ETC., ET AL., APPELLANTS,
v.
ZAYRE CORPORATION ET AL., APPELLEES
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This case addresses whether a retailer and manufacturer of a BB gun can be held liable for selling the weapon to minors under Florida statutes. The court held that BB guns are not covered by the relevant firearm statutes, and therefore the sale to minors does not violate state law, resulting in affirmance of summary judgment for the defendants.
The sale of a BB gun to a minor does not violate Florida Statutes sections 790.17 or 790.18 because a BB gun, which operates through compressed air, is not an unspecified 'other arm or weapon' under section 790.17 nor a 'pistol, Springfield rifle or other repeating rifle' under section 790.18. Since statutory violation was the only basis of liability asserted, the defendants are entitled to summary judgment.
[1] A BB gun, powered by compressed air, is not an "other arm or weapon" under Florida Statutes Section 790.17.
[2] A BB gun is not a "pistol, Springfield rifle or other repeating rifle" as defined in Florida Statutes Section 790.18.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A BB gun, which operates through the release of compressed air, is not an unspecified 'other arm or weapon' under Sec. 790.17, see Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963), nor a 'pistol, Springfield rifle or other repeating rifle . . ' under Sec. 790.-18.”
Establishes that BB guns are not covered by the firearms statutes at issue
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Join FLexlaw to unlock all legal intelligenceZayre Corporation sold a BB gun to two minor brothers (ages 13 and 16) approximately two months before an incident. The gun was stored on a high shelf…
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SCHWARTZ, Judge.
We agree with the trial court that the sale to a minor of an ordinary BB gun is not forbidden by either Section 790.17 or 790.18, Florida Statutes (1975). A BB gun, which operates through the release of compressed air, is not an unspecified “other arm or weapon” under Sec. 790.17, see Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963), nor a “pistol, Springfield rifle or other repeating rifle . . ” under Sec. 790.-18.1 See Secs. 790.001(5), (6), (13), Fla.Stat. (1975). This conclusion is made clear by the fact that the legislature specifically treated BB guns in Sec. 790.22, Fla.Stat. (1975); see Wyatt v. McMullen, 350 So. 2d 1115, 1118 (Fla. 1st DCA 1977), but just as specifically did not include them within the terms of Secs. 790.17-.18.2 See State ex rel. School Board of Martin County v. Department of Education, 317 So. 2d 68 (Fla.1975). Since the alleged violation of these statutory provisions3 was the only basis of liability asserted by the minor plaintiff against the present defendants-appellees, the retailer and the manufacturer of the BB gun with which he was injured,4 compare Tamiami Gun Shop v. Klein, 116 So. 2d 421 (Fla.1959), discharging cert., 109 So. 2d 189 (Fla. 3d DCA 1959), the summary judgment entered in their favor below is
Affirmed.
. We do not reach the question of whether a department store like the defendant Zayre’s is a “dealer in arms” to which Sec. 790.18 alone applies. See Smith v. Nussman, supra, 156 So. 2d at 682.
. The cases cited by the appellants, State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974); Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968), and Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970), deal with the question of when a particular instrument is a “deadly weapon” within the statutory definitions of armed robbery and aggravated assault. They are not pertinent to the present issue.
. No non-statutory common law liability attaches merely to the sale of a BB gun to a person who has not reached 18. Chaddock v. Plummer, 88 Mich. 225, 50 N.W. 135 (1891); see Harris v. Cameron, 81 Wis. 239, 51 N.W. 437 (1892).
.The BB gun in question had been sold by Zayre’s, two months before the accident, to the 13 and 16 year old brothers of the six year old boy who fired it into the plaintiffs eye. He had retrieved it from a high shelf in a closet of their home where the boys’ father had, after it was purchased, ordered it kept. In the light of our disposition of the case we find it unnecessary to decide whether, under these circumstances, the initial sale of the gun to the minor children could have been a.legal cause of the eventual accident. See W. Prosser, Torts § 44 (4th ed. 1971) and cases cited at 288 nn. 49 & 50; cf. Kwoka v. Campbell, 296 So. 2d 629 (Fla. 3d DCA 1974), cert. denied, 304 So. 2d 450 (Fla.1974).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)
- Tamiami GUN Shop v. Klein, 116 So. 2d 421 (Fla. 1959)
- Kwoka v. Campbell, 296 So. 2d 629 (Fla. 3d DCA 1974)
- State v. The Dep't OF Educ., 317 So. 2d 68 (Fla. 1975)
- Tamiami GUN Shop v. Klein, 109 So. 2d 189 (Fla. 3d DCA 1959)
- Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968)
- McGEEHAN v. State, 295 So. 2d 121 (Fla. 2d DCA 1974)
- State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974)
- Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963)
- Bader Bros. Transfer & Storage, Inc. v. Campbell, 304 So. 2d 450 (Fla. 1974)