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Cowart v. KMart Corporation5/8/2000
8) (adopting section 442 factors).
Considering the first factor, Bell's intervening act did not bring about the kind of harm that would have otherwise resulted from Kmart's negligent sale of ammunition to a minor. Unlike alcohol, the sale of ammunition does not involve a product that impairs the user. While statutes regulating alcohol sales to minors intend to prevent negligence that foreseeably occurs as a result of the minor's impaired judgment resulting from drinking the intoxicating substance, statutes regulating the sale of ammunition to minors intend to prevent injuries from the misuse of a dangerous instrumentality by those too young to appreciate the danger. Compare Phan Son Van, 990 S.W.2d at 753, 755 (noting illegal sale of alcohol to minors "will result in the minor driving while intoxicated and either causing injury or being injured") with Hulsebosch v. Ramsey, 435 S.W.2d 161, 163-64 (Tex. Civ. App._Houston [14th Dist.] 1968, no writ) (noting seller has common-law duty not to sell an article capable of injuring a third party if the minor did not know, or could not reasonably be assumed to know, of the dangerous character of the article) and Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074, 1075 (Miss. 1979) (noting if sale of guns and ammunition to minor was a contributing cause of premeditated murder and of liability as a matter of law, then "one who sells a pistol to a minor in violation of the [applicable] statutes would be absolutely liable for any damages inflicted by a minor with a pistol"). Certainly, the likelihood that the ammunition will be used is foreseeable at the time it is sold. However, at most, the kind of danger Kmart could foresee from the sale was misuse or mishandling resulting from the buyer being too young to appreciate the danger of the ammunition. A minor's ability to appreciate the danger of ammunition depends on the age of the minor. See Schmit v. Guidry, 204 So. 2d 646, 648 (La. Ct. App. 1967). Here, Carrasco was seventeen years old, old enough to appreciate the danger of negligent or intentional misuse of ammunition. See id. (concluding fourteen-year-old was not too young to know character of shotgun shells or to take proper care of shells). Further, Kmart could reasonably assume that a minor, Carrasco, would obey the laws. See Robinson, 372 So. 2d at 1076. Thus, Kmart could not foresee that this sale to a seventeen-year-old minor would result in negligent or intentional misuse of the ammunition by Bell, who was not a party to the sale.
Regarding the second factor, Richard's death was an extraordinary consequence in view of the circumstances existing at the time Kmart sold the ammunition. Kmart sold the bullets to Gabriel and Carrasco, not to the shooter, Bell. Gabriel and Carrasco initially used the ammunition for target practice, a consequence of the sale that Kmart could have foreseen. After the sale and target practice, Gabriel and Carrasco picked up Bell, and the threesome drank beer, "cruised" Denison looking for a fight, and began "horsing around" with Richard. Carrasco, without Bell's knowledge, loaded the gun, and gave it to Gabriel, who placed it in his waistband where it was concealed it by his jacket. Bell, who had dry-fired the pistol at persons earlier, took the loaded gun away from Gabriel and shot the victim. Thus, under these facts, the acts directly leading to Richard's shooting constituted an extraordinary, not a normal, sequence of events that was initiated after Kmart's sale of the ammunition to Gabriel and Carrasco. See Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567, 570 (Iowa 1997) (when twenty-year-old minor purchased ammunition in violation of federal law and committed suicide after fight with girlfriend, court held s
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