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


The adoption of a comparative negligence statute does not create liability where none existed before. Because there can be no contributory negligence as a matter of law when the statute is designed to protect persons from their inability to protect themselves, the adoption of comparative negligence did not alter the exclusion of defenses.


S.J.Z., who was 14 years old at the time, died as a result of sniffing glue. The glue had been purchased by R.R., the 13-year-old companion of S.J.Z.; R.R. also sniffed he glue. The glue was purchased from defendant Coast-to-Coast Store of Austin, which was owned and operated by defendant Chester L. Warren. Plaintiff Louis D. Zerby, as trustee in the matter of the death of S.J.Z. filed a wrongful death action in Minnesota state court against Coast-to-Coast, Warren and defendant Robert Deike, who worked as a clerk for Warren, alleging defendants were negligent in selling the glue and that the sale violated Minn. St. 145.38. Warren and Deike filed a third-party action seeking contribution from the R.R.; United States Plywood Corporation, which manufactured the glue, was also named a third-party defendant. Zerby also asserted claims against the third-party defendants, and all defendants pleaded the defenses of contributory negligence and assumption of risk by S.J.Z. The parties waived a jury trial and the matter was tried on stipulated facts; the trial court held that the trial would proceed solely under the theory of absolute liability against defendants. The trial court ordered judgment against Warren and Deike and disallowed both third-party claims. Defendants appealed from the denial of their motion for judgment.


Did the sale of glue to a minor create absolute liability on the part of the retailer for the wrongful death of another minor which resulted from his intentional sniffing of the glue?




The state supreme court held that because Minn. Stat. § 145.38 imposed absolute liability, it was proper for the trial court not to allow the defense of comparative negligence and assumption of risk. The contribution claim against R.R. was properly disallowed because his conduct was merely in reaction to the original wrongful act of defendants and therefore not a proximate cause. The court further held that the trial court properly disallowed defendants' claim for indemnity based on a contract provision as being against the public duty imposed by Minn. Stat. § 145.38.

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