Olsen v. McGillicuddy

Opinion

This is an appeal from a judgment following a defense verdict in an action wherein plaintiff, a minor, suffered injuries by reason of a BB gun wound. The gun was owned by defendant, also a minor, and had been furnished him by his parents who are also named defendants.

It is claimed that the defendant parents who had given their minor son a BB gun and permitted him to use it were in violation of a Petaluma

In Galvan v. Superior Court, 70 Cal.2d 851 [ 76 Cal.Rptr. 642 , 452 P.2d 930 ], involving an attack upon the constitutionality of a San Francisco ordinance requiring registration of firearms with San Francisco police, the court (p. 856) said: “The validity of San Francisco law is governed by the California Constitution, article XI, section 11, which restricts local lawmaking to ‘all such local, police . . . and other regulations as are not in conflict with general laws.’ Any local law that directly conflicts with state legislation is void. [Citations.]” The court further said relative to preemption by the state by implication that “. . . Whenever the Legislature has adopted a general scheme for the regulation of a particular subject, no local legislation on that subject is permissible. [Citations.]

“To determine whether the Legislature intended to occupy a particular field to the exclusion of all local regulation, we may look to the ‘ “whole purpose and scope of the legislative scheme.” ’ (In re Lane, supra, 58 Cal.2d at pp. 102-103 [ 22 Cal.Rptr. 857 , 372 P.2d 897 ].)” (P. 859.)

While numerous sections of our Penal Code deal with the regulation of the sale of firearms and prohibit the possession of firearms by persons generally and by minors, none is applicable here. Those dealing with a person furnishing firearms to minors refer to firearms furnished without the permission of their parents. Here defendants gave the BB gun to their minor son and permitted him to use it. The question before us is narrowed to whether the state has so completely covered the subject of firearms generally that it has become exclusively a matter of state concern. (In re Hubbard, 62 Cal.2d 119 [ 41 Cal.Rptr. 393 , 396 P.2d 809 ].)

In In re Hubbard, supra, which involved the question of whether the state had assumed the regulation of games of chance to the exclusion of further regulation by a municipality, the court set forth three tests for guidance in determining pre-emption by implication and stated: “(1) . . . [T]he subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.” (P. 128.)

In Galvan v. Superior Court, supra, 70 Cal.2d 851 , 864, the court said: “That problems with firearms are likely to require different treatment in San Francisco County than in Mono County should require no elaborate citation of authority. Such differences were recognized in People v. Jenkins, supra, 207 Cal.App.2d Supp. 904 , 907 [ 24 Cal.Rptr. 410 ], People v. Commons, supra, 64 Cal.App.2d Supp. 925 , 932 [ 148 P.2d 724 ] [see fn. 5, supra], and in Gleason v. Municipal Court, 226 Cal.App.2d 584 , 587 [ 38 Cal.Rptr. 226 ]. The need for differential treatment of firearms was also recognized by the Legislature in section 25840 of the Government Code, which, as noted, authorizes counties to ‘prohibit and prevent the unnecessary . . . discharge of firearms. . . .”’ (See also In re Hoffman, 155 Cal. 114 [ 99 P. 517 ].)

Following Galvan, the Legislature in 1969 enacted Government Code section 9619 and made clear its intent “to occupy the whole field of regulation of the registration or licensing of . . . firearms. . . .” (Italics added.) Despite the opportunity to include an expression of intent to occupy the entire field of firearms, the legislative intent was limited to registration and licensing. We infer from this limitation that the Legislature did not intend to exclude municipalities from enacting further legislation concerning the use of firearms.

It also does not appear that the adverse effect of a local ordinance on transient citizens of the state outweighs the possible benefit to the municipality. (See In re Hubbard, supra, 62 Cal.2d at p. 128.) The Petaluma ordinance would not unduly burden transient minors when compared to the local interest and desired safety of all minors.

We have concluded, therefore, that the Legislature has not preempted the-subject of the regulation of the use of BB guns by minors either directly or by implication.

Respondents also argue that the ordinance is inapplicable here because plaintiff is not a member of the class of people the ordinance was designed to protect and, further, that the error was rendered harmless by reason of contributory negligence as a matter of law.

The doctrine of negligence per se does not apply even though a

We believe that upon the record before us the ordinance is applicable and should have been admitted into evidence. We have also concluded that whether appellant was contributorily negligent or assumed the risk are questions of fact to be determined by the trier of fact.

“. . . A child of immature years is not held to the same standard of conduct as an adult, but only to the degree of care ordinarily exercised by children of like age, mental capacity and experience. There are no particular ages at which he is deemed either wholly without capacity or fully accountable, and the question of capacity is usually for the jury. [Citations.]” (2 Witkin, Summary of Cal. Law (1960) Torts, § 224, p. 1418; see Modern trends as to contributory negligence of children, 77 A.L.R.2d, p. 917.) In Calandri v. Ione Unified School Dist., 219 Cal.App.2d 542 [ 33 Cal.Rptr. 333 ], a case involving the possibility of contributory negligence of a 15-year-old, the court, citing Ross v. San Francisco Unified School Dist., 120 Cal.App.2d 185 , 191 [ 260 P.2d 663 ], noted that both contributory negligence and proximate cause are normally fact questions in the absence of compelled inferences to the contrary; that this was particularly to be emphasized when a minor’s alleged negligence is involved, with much more lenient rules in favor of the minor to be applied. The court then cited the quotation: “ ‘ “Youth is ever the time of heedlessness, of impulsiveness, and of forgetfulness.” ’ ” (P. 551.) While there was evidence of contributory negligence, it was not such as to constitute contributory negligence as a matter of law.

The jury here may have decided this case on either the basis that there was no negligence on behalf of respondents or that appellant was con

Under these circumstances, failure to admit the ordinance and to instruct on its bearing on the issue of negligence means that it cannot be said that a result more favorable to appellant could not reasonably have been expected but for the error in excluding evidence. (People v. Watson, 46 Cal.2d 818 [ 299 P.2d 243 ]; Schubkegel v. Gordino, 56 Cal.App.2d 667 , 673 [ 133 P.2d 475 ].) We have, therefore, concluded that failure to admit the ordinance and to so instruct constitutes reversible error.

The judgment is, therefore, reversed and the matter is remanded for new trial.

Draper, P. J., and Caldecott, J., concurred.