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Zerby v. Warren

Minnesota Supreme Court
210 N.W.2d 58 (1973)


Steven Zerby (plaintiff), age 14, went with Randy Rieken, age 13, to a store owned by Chester Warren (defendant). Robert Dieke (defendant) worked as a clerk at Warren’s store. Dieke sold two pints of glue to Rieken. The glue contained toluene, an aromatic hydrocarbon solvent that, if inhaled, is toxic to the central-nervous system. A few hours later, Zerby and Rieken intentionally sniffed the glue. The glue’s fumes affected Zerby’s central-nervous system, causing him to fall into a creek and drown. Minnesota Statute 145.38 prohibited selling glues containing aromatic hydrocarbon solvents to minors. Minnesota Statute 145.39 prohibited minors from recreationally using glues containing aromatic hydrocarbon solvents or aiding minors in doing so. Zerby’s family sued the defendants for the wrongful death of their son. The defendants sued Rieken for contributory negligence, and Zerby’s family added a claim against Rieken. The defendants and Rieken each raised the affirmative defenses of comparative negligence and assumption of risk by Zerby. In a pretrial ruling, the trial court held that the defendants were subject to absolute liability and denied the use of comparative negligence or assumption of risk as defenses. Ruling on stipulated facts, the trial court found in favor of Zerby and denied the defendants’ claim against Rieken. The defendants appealed.

Rule of Law


Holding and Reasoning (Kelly, J.)

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