## Facts

- A 14-year-old minor and a 13-year-old companion went to a retail store in Austin, Minnesota.
- A store clerk sold two pints of glue containing an aromatic hydrocarbon solvent to the 13-year-old, a sale prohibited by Minn. Stat. § 145.38.
- Shortly after the purchase, the minors intentionally inhaled the glue fumes.
- The 14-year-old was affected by the fumes, fell into a creek, and drowned.
- The decedent’s trustee sued the store owner and clerk for wrongful death based on the statutory violation.
- The store owner and clerk sought (1) contribution from the 13-year-old purchaser and (2) contractual indemnity from the glue manufacturer.
- The trial court treated Minn. Stat. § 145.38 as creating absolute liability, ruled contributory negligence and assumption of risk unavailable, entered judgment for the trustee on stipulated facts, and denied the third-party claims.

## Issues

1. Whether violation of Minn. Stat. § 145.38 creates absolute liability for a retailer for the wrongful death of a minor resulting from intentional glue sniffing, even if the decedent was not the purchaser.
2. Whether comparative negligence and assumption of risk are available defenses in an action predicated on Minn. Stat. § 145.38.
3. Whether the retailer and clerk may obtain contribution from the minor purchaser who also violated Minn. Stat. § 145.39 by improper use of the glue.
4. Whether a contractual indemnity clause can shift to the manufacturer liability arising from the retailer’s violation of Minn. Stat. § 145.38.

## Decision

- The Minnesota Supreme Court affirmed the judgment for the trustee against the retailer and clerk.
- The court held that a sale in violation of Minn. Stat. § 145.38 imposes absolute liability for the wrongful death of another minor when death results from intentional sniffing of the glue.
- The court held that assumption of risk and comparative negligence do not apply to liability imposed under § 145.38.
- The court denied contribution from the minor purchaser, concluding his conduct was not an independent proximate cause but a reaction to the original wrongful sale.
- The court denied contractual indemnity against the manufacturer, holding that a contract cannot relieve a party from liability for breach of an absolute statutory duty enacted for the protection of others.

## Legal Principles

- When a protective statute imposes an absolute duty on a class of actors, violation of that duty may create absolute liability for harms the statute was designed to prevent, if the violation is a proximate cause of the injury.
- In an action imposing absolute liability under a statute designed to protect minors from a specific danger, assumption of risk and comparative negligence are unavailable where allowing them would defeat the statute’s protective purpose.
- Contribution is unavailable where the third party’s conduct is not independent of the defendant’s statutory violation and does not constitute a legally sufficient, separate proximate cause of the harm.
- Contractual indemnity is unenforceable to the extent it purports to shift liability for breach of an absolute statutory duty imposed for the protection of others; such an agreement is void as against public policy.

## Conclusion

The court imposed absolute liability on a retailer and clerk for wrongful death resulting from an illegal sale of specified glue to a minor, barred comparative fault defenses, rejected contribution from the minor purchaser as nonindependent of the statutory violation, and held contractual indemnity unenforceable when it would excuse breach of a statutorily imposed protective duty.


Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (Minn. 1973)