## Facts

- Markham Air Rifle Co. manufactured and distributed an air rifle called the “King air rifle.”
- Markham advertised the King air rifle as a harmless toy for the amusement of children and others, encouraging the public to believe it was safe to handle.
- Markham sold King air rifles in quantity to a wholesale dealer, knowing the wholesaler would resell them to other dealers and that the rifles would end up in retail stores for sale to individual customers.
- The rifles were shipped loaded with shot, and Markham knew later handlers and purchasers would not expect the rifles to be loaded.
- Herman worked in a retail store as a stockkeeper and salesperson and had charge of the store’s stock of goods, including the King air rifle.
- Herman, unaware that a rifle was loaded, showed it to a prospective customer.
- The customer, also unaware that the rifle contained shot, handled it and pulled the trigger; the rifle discharged and shot Herman in the face.
- Herman lost the sight in her right eye and alleged that the sight in her left eye was also endangered.
- Herman sued Markham for negligence, alleging (1) negligent shipment of a loaded air rifle, (2) failure to use reasonable care to prevent shot from being placed and left in the rifle while under Markham’s control, and (3) failure to inspect to ensure rifles were unloaded before shipment.
- Markham filed a demurrer to the declaration, arguing that Herman did not allege actionable negligence and that, even if negligence were alleged, it was not the proximate cause of Herman’s injuries because of intervening handling by others and the customer’s trigger pull.

## Issues

1. Whether the declaration sufficiently alleged actionable negligence by the manufacturer in shipping or allowing shipment of an air rifle loaded with shot and in failing to inspect before shipment.
2. Whether the manufacturer owed a duty of reasonable care to a retail employee who would foreseeably handle the product in the distribution chain despite lack of contractual privity.
3. Whether the alleged negligent shipment could be treated as a legal cause of the injury at the pleading stage, or whether intermediaries’ possession and the customer’s pulling of the trigger broke the chain of causation as a matter of law.

## Decision

- The court overruled Markham’s demurrer to the declaration.
- The court held that the declaration’s allegations were sufficient to plead negligent conduct, including shipping (or permitting shipment of) a rifle in a loaded condition and failing to use reasonable care to prevent or discover that condition before the rifle entered commerce.
- The court concluded that Markham could owe a duty of reasonable care to persons it should expect to handle the rifles in wholesale and retail channels, including a retail stockkeeper and salesperson, even without privity.
- The court ruled that the passage of the rifle through intermediaries and the customer’s act of pulling the trigger did not defeat causation as a matter of law on demurrer because such handling and use were within the range of what could reasonably be anticipated from placing an air rifle, represented as harmless, into retail trade.

## Legal Principles

- A manufacturer that places into commerce a product that poses a serious risk of physical harm if in a dangerous condition, and that knows the product will be handled by persons beyond the immediate purchaser, may owe those foreseeable handlers a duty of reasonable care even without contractual privity.
- Negligence may be predicated on allegations that the product left the manufacturer’s control in a dangerous condition, including negligent shipment, negligent allowance of the dangerous condition to exist while under the manufacturer’s control, and negligent failure to conduct reasonable inspection before shipment.
- A third party’s intervening conduct does not automatically cut off liability; where the intervening act is one the manufacturer should reasonably anticipate as part of ordinary handling and use in the distribution and retail setting, proximate cause ordinarily remains a fact question rather than a pleading defect.
- On demurrer, the court accepts well-pleaded factual allegations as true and tests whether the declaration states a legally sufficient claim of duty, breach, and causal connection.

## Conclusion

The court allowed Herman’s negligence action to proceed because the declaration plausibly alleged that Markham shipped (or allowed shipment of) an air rifle loaded with shot despite marketing it as harmless, that Markham owed a duty of reasonable care to a retail employee foreseeably expected to handle the rifle in the stream of commerce, and that the customer’s trigger pull and the rifle’s passage through intermediaries did not defeat proximate cause as a matter of law at the pleading stage.


Herman v. Markham Air Rifle Co., 258 F. 475 (1918)