Herman v. Markham Air Rifle Co.

Markham Air Rifle Co. (Markham) (defendant) manufactured and distributed an air rifle called the King air rifle. Markham marketed the King air rifle to children as a harmless toy. Markham sold King air rifles to a wholesale dealer, knowing that the wholesale dealer would then sell them to other dealers and the rifles would eventually be sold in retail stores and purchased by individual customers. The King air rifles were loaded with shot, and Markham knew that the subsequent purchasers of the air rifles would not expect them to be loaded. Herman (plaintiff) worked in a retail store as a stockkeeper and salesperson. Herman showed a King air rifle to a customer, unaware that the King air rifle had come loaded with shot. The customer, also unaware that the King air rifle was loaded, pulled the trigger and shot Herman in the face. As a result, Herman lost her vision in her right eye and was likely to lose the vision in her left eye as well. Herman filed a negligence action against Markham, claiming that Markham was negligent in shipping loaded air rifles, that Markham failed to use reasonable care by permitting the air rifles to be loaded with shot and leaving the shot in them, and that Markham failed to properly inspect the air rifles to ensure they were not loaded before shipping them. Markham filed a demurrer, arguing that Herman did not allege actionable negligence and that the alleged negligence, even if actionable, was not the proximate cause of Herman’s injuries.