In what circumstances will a parent be found negligent in gifting their 9-year-old child a BB gun and allowing him to play with it without supervision?

In Li, we announced a system of pure comparative negligence "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Id., 13 Cal.3d at p. 829, 119 Cal.Rptr. at p. 875, 532 P.2d at p. 1243.) Those same underlying considerations of policy which moved us judicially in Li to rescue blameworthy plaintiffs from a 100-year-old sanction against all recovery persuade us now to extend similar principles to the strict products liability area. Legal responsibility is thereby shared. We think that apportioning tort liability is sound, logical and capable of wider application than to negligence cases alone. To hold otherwise, in our view, would be to perpetuate a system which, as we noted in Li, Dean Prosser describes as placing ". . . upon one party the entire burden of a loss for which two are, by hypothesis, responsible." (Prosser, supra, § 67, p. 433.) We reiterate that our reason for extending a full system of comparative fault to strict products liability is because it is fair to do so. The law consistently seeks to elevate justice and equity above the exact contours of a mathematical equation. We are convinced that in merging the two principles what may be lost in symmetry is more than gained in fundamental fairness.

Moreover, although the duty of care owed by both landlords and hotel owners is to maintain their property in a reasonably safe condition (Vasquez, supra, 118 Cal.App.4th at p. 278, 12 Cal.Rptr.3d 846; Stowe v. Fritzie Hotels, supra, 44 Cal.2d at pp. 420–421, 282 P.2d 890), because of the temporary nature of most hotel occupancies, hotel owners generally exercise far greater control over hotel rooms than landlords are able to exercise over leased premises. (Crosswhite, supra, 30 S.E.2d at p. 674 [“An innkeeper is in direct and continued control of his guest rooms, while a lessee may be expected to do many things for his own protection.”]; Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1097, 271 Cal.Rptr. 44 [A hotel guest is not a resident but “a mere lodger, whose possessory rights and interests are vastly inferior to those of a tenant.”].) Consequently, a hotel owner's duty to maintain reasonably safe rooms is more akin to the duty to maintain safe common areas than is a landlord's duty to maintain reasonably safe premises. We agree with the Crosswhite court that the duty of a hotel owner to keep its “premises reasonably safe applies to ‘defective or insecurely or unsafely fastened window screens.’ ” (Crosswhite, supra, at p. 675.)

[231 Cal.App.4th 31]

Regarding the parents' failure to closely supervise Michael, “a parent's negligence in supervising a child may be a factor in determining causation ... but is generally not a factor in determining duty.” (Amos, supra, 73 Cal.App.4th at p. 899, fn. 2, 87 Cal.Rptr.2d 34.) Further, a parent's negligence is not imputable

[179 Cal.Rptr.3d 773]

to a child in an action by the child for injuries, although it may be relevant in determining whether a third party is liable for the injuries. (Id. at p. 905, 87 Cal.Rptr.2d 34.) In any event, whether the parents' failure to supervise Michael amounted to negligence is a question of fact not properly resolved on summary judgment. “[A] parent may be guilty of contributory negligence in not giving proper supervision over a child, but ... it is a question of fact for the jury to decide whether such lack of supervision was negligence under all the circumstances.” (Christiana v. Rattaro (1947) 81 Cal.App.2d 597, 599, 184 P.2d 682; Baker, supra, 73 F.2d at p. 828 [“The duty of parents to watch over their infant child is to be viewed in the light of all the demands made at the time upon them, and the circumstances usually make negligence on their part a question for the jury.”].) It is reasonable to expect that a parent will take his or her eyes off a child for brief periods to attend to other matters. (Wright v. Standard Oil Co., Inc. (5th Cir.1972) 470 F.2d 1280, 1296 [“[E]ven the most careful parent cannot keep an ever-present eye on his child....”].)

While it is true that the negligence, if any, of parents is not imputable to the child in an action by the latter for injuries (Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 35--37 (179 P. 203, 15 A.L.R. 401); Crane v. Smith (1943) 23 Cal.2d 288, 301 (144 P.2d 356); Reynolds v. Willson (1958) 51 Cal.2d 94, 102 (331 P.2d 48)), such negligence may nevertheless be relevant in determining whether a third person is liable for such injuries.

In the instant case, the question of the negligence of plaintiff's parents was relevant, firstly, in determining whether defendants were in fact negligent. As stated in section 302A of the Restatement of the Law of Torts 2d, 'An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another Through the negligent or reckless conduct of * * * a third person.' (Italics added; p. 86; see also Kaukonen v. Aro (1956) 142 Cal.App.2d 502, 505 (298 P.2d 611); Prosser, Torts (3d ed 1964) § 33, pp. 168, 173--176.) The converse of this principle is obviously that a person does not act negligently if he cannot be expected to reasonable foresee the existence of an unreasonable risk of harm to another

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[430 P.2d 65] through the intervention of negligence of a third person.

The negligence of plaintiff's parents was also relevant on the issue of actual causation. In order to hold defendants liable it was necessary for plaintiff to show that [67 Cal.2d 199] the negligence of defendants, or either of them, contributed in some way to plaintiff's injury, 'so that 'but for' the defendant's negligence the injury would not have been sustained.' (2 Witkin, Summary of Cal.Law (1960) Torts, § 284, p. 1484; see Rest.2d Torts, § 432, p. 430.) Accordingly, although defendants, if found to be negligent, would not be relieved from liability simply because the negligence of plaintiff's parents concurred with defendants' negligence in causing plaintiff's injury, defendants would not be liable for plaintiff's injuries if, despite their negligence, plaintiff would have sustained the same injuries as a result of the negligence of his parents. In other words, if because of lack of supervision by his parents, plaintiff would have fallen from the bleachers even if defendants had provided safe seating arrangements and had adequately supervised the seating at the fairgrounds, then defendants' negligence would not be the 'cause in fact' of plaintiff's injuries.

Finally, the question of the negligence of plaintiff's parents is relevant as to the issue of proximate cause. This issue is concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff's injury, the defendant should be held responsible for the plaintiff's injury where the injury was brought about by a later cause of independent origin. This question, in turn, revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries. (Rest.2d Torts, § 440 et seq., p. 465; Witkin, supra, § 289, p. 1488, and cases cited therein.) In the instant case, for example, it could be argued that if plaintiff's parents were negligent in failing to exercise proper care for plaintiff's safety, their negligence constituted an intervening cause. Following this line of reasoning, it would be incumbent upon the jury to determine whether the negligence of plaintiff's parents was foreseeable to defendants or, if not foreseeable,[67 Cal.2d 200] whether it nevertheless resulted in a type of injury which was foreseeable to defendants.

We are aware of no California cases which have specifically addressed the issue of whether a seller of a firearm to a person whom the seller knows, or has reason to know, is a danger to himself or herself, or others, is liable for injuries caused by the person to whom the firearm was sold. However, the law in California is clear that one is liable for injuries arising out of the negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to himself or herself, or others. For example, the supplier of an automobile, who entrusts the automobile to a known reckless driver, can be held liable for injuries to third persons. (Allen, supra, 109 Cal.App.3d at p. 422, 167 Cal.Rptr. 270.) The supplier of a car to a known epileptic may be held liable for negligent entrustment. (Talbott, supra, 199 Cal.App.3d 700, 703, fn. 4, 245 Cal.Rptr. 136.) One who leaves a firearm where a minor might foreseeably gain access to it may be liable for negligence. (See, e.g., Reida, supra, 18 Cal.App.3d at pp. 704-705, 96 Cal.Rptr. 102.)

"Liability for negligent entrustment amounts to a determination whether a duty exists to anticipate and guard against the negligence of others." (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.) Under the Restatement, the general basis for liability for negligent entrustment is "the act of entrusting a potentially dangerous instrumentality to one who is likely to misuse it." (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 339 [citing Rest.2d Torts, § 308].) "It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." (Rest.2d Torts, § 308.) "Under the control of the actor" here means that the entrustee may use the entrusted instrumentality only with the entrustor's consent. (Rest.2d, supra, com. a, p. 100.)

(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(b) This presumption may be rebutted by proof that:

(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.

(a) No person, corporation, or firm shall sell, loan, or transfer a firearm to a minor, nor sell a handgun to an individual under 21 years of age.

(b) Subdivision (a) shall not apply to or affect the following circumstances:

(1) The sale of a handgun, if the handgun is an antique firearm and the sale is to a person at least 18 years of age.

(2) The transfer or loan of a firearm, other than a handgun, to a minor by the minor's parent or legal guardian.

(3) The transfer or loan of a firearm, other than a handgun, to a minor by a grandparent who is not the legal guardian of the minor, if the transfer is done with the express permission of the minor's parent or legal guardian.

(4) The loan of a firearm, other than a handgun, to a minor, with the express permission of the minor's parent or legal guardian, if the loan does not exceed 30 days in duration and is for a lawful purpose.

(5) The loan of a handgun to a minor by the minor's parent or legal guardian, if both of the following requirements are satisfied:

(A) The minor is being loaned the firearm for the purposes of engaging in a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.

(B) The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.

(6) The loan of a handgun to a minor by a person who is not the minor's parent or legal guardian, if all of the following requirements are satisfied:

(A) The minor is accompanied by the minor's parent or legal guardian when the loan is made, or the minor has the written consent of the minor's parent or legal guardian, which is presented at the time of the loan, or earlier.

(B) The minor is being loaned the firearm for the purpose of engaging in a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.

(C) The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.

(D) The duration of the loan does not, in any event, exceed 10 days.

Section 12022.53, subdivision (b) provides that "any person who, in the commission of a felony specified in subdivision (a) [including robbery], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." As used in that section, "`firearm' means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." (§ 12001, subd. (b).)

Thus, toy guns obviously do not qualify as a "firearm," nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile. (§ 12001, subd. (g).)

(a) Every person who furnishes any BB device to any minor, without the express or implied permission of a parent or legal guardian of the minor, is guilty of a misdemeanor.

(b) As used in this section, "furnishes" means either of the following:

(1) A loan.

(2) A transfer that does not involve a sale.

Respondents also argue that the ordinance is inapplicable here because plaintiff is not a member of the class of people the ordinance was designed to protect and, further, that the error was rendered harmless by reason of contributory negligence as a matter of law.

The doctrine of negligence per se does not apply even though a [15 Cal.App.3d 903] statute has been violated if the plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent. (Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 397--399, 329 P.2d 605; Courtell v. McEachen, 51 Cal.2d 448, 459, 334 P.2d 870; Evid.Code, § 669(a)(4).) Respondents argue that the ordinance was designed solely to prevent injury to persons injured when shot by the person violating the statute and that since appellant was holding the gun when it went off, he is not within the class protected, the accident was not one the statute was designed to protect against nor was the violation of the ordinance a proximate cause of the accident. It is common knowledge, however, that BB guns are not primarily or even ordinarily used as weapons and that accidents occur during play with these guns regardless of which playmate has physical possession at the time the gun goes off. These guns can be considered as much in a class of dangerous toys as firearms. Reasonably construed, the ordinance could be seen as intended to protect against all accidents which might occur from BB guns.

We believe that upon the record before us the ordinance is applicable and should have been admitted into evidence. We have also concluded that whether appellant was contributorily negligent or assumed the risk are questions of fact to be determined by the trier of fact.