The dispositive issue in this products liability appeal is whether the evidence before the trial court raised a genuine issue of material fact regarding whether the conduct of the manufacturer defendant, Coleman Company, Inc. (Coleman), was the proximate cause of the named plaintiffs injuries. We conclude that no genuine issue of mаterial fact existed and that the trial court, therefore, properly granted Coleman’s motion for summary judgment. Accordingly, we affirm the judgment.
The plaintiff, sixteen year old William Haesche,
The following facts are undisputed. On April 8,1986, the named defendant, seventeen year old Edward Kissner III, purchased a Crosman Model 66 Powermaster .177 Caliber Pellet/BB air rifle (Crosman 66), manufactured by Coleman, from Caldor, Inc., a department store lоcated in Hamden. Kissner bought the gun in order to participate in an activity that he and his friends called “war games.” Later that afternoon, Kissner, fifteen year old Christopher Millea, sixteen year old Richard Davies, and the plaintiff engaged in war games as they had on previous occasions. Armed with air rifles and wearing several layers of clothing fоr protection, the young men went to a wooded area, divided into two teams, dispersed and began hunting for and shooting at each other. In the course of the war games, Kissner shot at a tree behind which he knew the plaintiff was hiding. At that moment, the plaintiff stepped out from behind the tree and was struck in the eye by the BB that Kissner had fired. As a result, the plaintiff suffered serious injury to his eye.
The plaintiff filed a fourteen count complaint alleging, inter alia, that Coleman’s failure to provide adequate warnings regarding the ability of the Crosman 66 to cause serious eye injury violated the Product Liability Act and constituted an unfair trade practice under
The trial court granted Coleman’s motion for summary judgment concluding both that the risk of serious eye injury was an open and obvious danger of which Coleman had no duty to warn, and that the alleged failure to warn could not have proximately caused the plaintiff’s injury. The trial court further concluded that because the plaintiff was not the purchaser of the air rifle, he lacked standing to assert a claim under CUTPA. Thereafter, the trial court rendered judgment for Coleman on each count of the complaint in which it was named.
The plaintiff has appealed the judgment claiming, inter alia, that the trial court improperly concluded: (1) that Coleman’s conduct did not cause the plаintiff’s injuries; and (2) that the plaintiff lacked standing to assert a CUTPA violation.
I
The standard for appellate review of a trial court decision to grant a motion for summary judgment is well established. “Practice Book § 384 provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Scrapchansky v. Plainfield,
The plaintiff first claims that the trial court improperly granted Coleman’s motion for summary judgment on the plaintiff’s product liability claims. The plaintiff contends that if Coleman had adequately warned Kissner of the dangers of engaging in war games, the plaintiff would not have been shot in the eye. He further contends that whether Coleman’s warnings were ade
“In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff’s injuries.” Wierzbicki v. W. W. Grainger, Inc.,
The issue of causation in warnings cases is governed by § 52-572q (c), which states that “the [plaintiff] shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the [plaintiff] would not have suffered the harm.” Generally, questions regarding the existence of a causal link are reserved for the trier of fact. Mather v. Griffin Hospital,
Applying these principles to the evidence in the record, we conclude that the trial court properly determined that no gеnuine issue of material fact existed regarding whether the alleged failure to warn Kissner of the dangers associated with the use of the air rifle could have proximately caused the plaintiffs injuries. In the present case, the plaintiff alleged that Coleman had failed to warn Kissner of the possibility that a BB shot from the air rifle that he had purchasеd could seriously injure a person’s eye. To prevail on his failure to warn claim, the plaintiff had the burden of proving that if the product had contained an adequate warning, Kissner would not have participated in the war games and, as a result, the plaintiff would not have suffered a serious eye injury.
In support of its motion for summary judgment, Coleman presented affidavits, deposition testimony, and other documentary evidence tending to show that no warning would have changed Kissner’s behavior. A review of the evidence submitted reveals the following relevant facts. Kissner was familiar with the operation and potential power of the air rifle. He testified, in a deposition, that he had used an air rifle prior to his purchase and use of the Crosman 66, and that he had known that the air rifle’s power depended on the number of times its air chamber had been pumped. He testified that prior to the day of the shooting he had shot an air rifle at birds and glass bottles and that he was aware that a BB shot from the Crosman 66 could shatter glass and kill small animals. Kissner alsо testified that he had engaged in war games prior to the day
Kissner further testified that he had known that a BB shot from the Crosman 66 could seriously injure a person’s eye. In fact, Kissner testified that the young men had taken a number of precautions against injury and even adopted a set of rules in order to prevent damage to the head and eyes. They had worn extra layers of clothing and discussed wearing sunglasses and goggles on the day prior to the shooting.
Additionally, Christopher Millea testified, in a deposition, that on the day of the shooting he had worn protective goggles while participating in the war games. The precautionary rules prohibited: (1) pumping the air rifles more than two or three times, in order to minimize the velocity of the BBs; (2) shooting above the waist; and (3) shooting without first clearly identifying the target.
Kissner also testified that at the time of the shooting he had known that his parents disapproved of his using BB guns. In fact, he went to great lengths to hide his purchase and use of the gun from his mothеr because “she would have been very upset” and would have taken the gun away. Moreover, Kissner admitted that he had been so concerned with concealing his purchase that he had never looked at the outside or the inside of the gun’s box for any written warnings or instructions.
In response, the plaintiff offered the depositions of his two expert witnesses and his own affidavit. Robert Cunitz, an expert in the areas of product safety and warnings, testified that the warnings accompanying the Crosman 66 had been inadequate, that the dangers presented by air rifles are not publicly known and are not adequately perceived through common sense, and that the failure to provide proper warnings had rendered the Crosman 66 defective. Lama Martin, a forensic ballistics expert, testified that the Crosman 66 is unreasonably dangerous because it has excessive power and velocity capability considering its intended use, target shooting. The plaintiff’s affidavit stated that, prior to the shooting, he had viewed BB guns as toys and not weapons, that he did not know that a BB could penetrate the skin or eye, and that if he had known these things, he would not have participated in the war games. The plaintiff also noted that, in response to a request for admissions, Kissner had indicated that prior to the shooting he had not known that a BB could penetrate the eye.
Viewing this evidence in the light most favorable tо the plaintiff, we conclude that a fair and reasonable person could not conclude that a warning would have altered Kissner’s behavior. Although Kissner stated in
II
The plaintiff next claims that the trial court improperly concluded that he did not have standing to bring a claim under CUTPA. He contends that, by marketing the Crosman 66 without adequate warnings, Coleman engaged in unfair or deceptive trade practices in violation of General Statutes § 42-110b (a). The plaintiff further claims that the record contains conflicting evidence as to whether Coleman’s actions constituted unfair trade practices and that he is, therefore, entitled to have this disputed question of fact decidеd by a jury. The plaintiff’s claim, however, must fail because in order to prove a private cause of action under CUTPA, the plaintiff must show not only that Coleman engaged
Our decision rests on the plain language of General Statutes § 42-110g (a). “The objective of statutоry construction is to give effect to the intended purpose of the legislature. State v. Delafose,
Section 42-1 lOg (a) provides in relevant part that “[a]ny pеrson who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . .” (Emphasis added.) As we have noted in a number of prior decisions, this section provides a private cause of aсtion under CUTPA, which utilizes private litigation to achieve its remedial purpose. Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc.,
The judgment is affirmed.
In this opinion the other justices concurred.
Notes
William’s parents, Walter and Marianne Haesche, are also plaintiffs in this case. Their claims against the defendant Coleman Company, Inc., rest on the same legal and factual grounds as William’s claims. For the sake of clarity and because their claims will survive or be barred according to the disposition of the issues on appeal as applied to William, we refer to William as the plaintiff.
The other original defеndants were: Edward Kissner III; Beverly Grove, Kissner’s mother; and Caldor, Inc. These defendants are no longer involved in the case because the plaintiff settled his claims with Kissner, Grove and Caldor, Inc.
The injunction would have restricted sales of the Crosman 66 to only those persons who were over eighteen years of age and who were in possession оf a permit to carry an air rifle at the time of purchase.
The plaintiff also claims that the trial court improperly: (1) concluded, as a matter of law, that the Crosman 66 was not defective because Coleman had no duty to warn; (2) failed to allow the jury to decide whether Coleman’s warnings were adequate; (3) concluded that the dangers of operating an air rifle were open and obvious; (4) failed to submit his claim for punitive damages to the jury; (5) failed to submit the question of “comparative responsibility” to a jury; and (6) concluded that the plaintiffs CUTPA claim was barred by a lack of privity. Because our determination on the issue of proximate cause bars both the plaintiffs produсt liability and CUTPA claims to which these issues relate, we need not reach these claims.
Finally, the plaintiff claims that the trial court improperly failed to submit its negligent entrustment claims to a jury. A careful review of the plaintiff’s complaint, however, reveals that no such claim was made against Coleman. We, therefore, decline to review this clаim on appeal.
It is undisputed that the following warning was on the outside of the gun’s box: “CAUTION. NOT A TOY. ADULT SUPERVISION REQUIRED. MISUSE OR CARELESS USE MAY CAUSE SERIOUS INJURY OR DEATH. MAY BE DANGEROUS UP TO 475 YARDS (435 METERS). READ ALL INSTRUCTIONS BEFORE USING. BUYER AND USER HAVE THE DUTY TO OBEY ALL LAWS ABOUT THE USE AND OWNERSHIP OF THIS AIRGUN.”
Kissner was asked during deposition whether he had observed any printing or writing on the outside of the box while unwrapping the gun. He