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Schmarr v. World Class Gun Shows Inc.

United States District Court, S.D. Indiana, Indianapolis Division

March 5, 2019

John Schmarr, Plaintiff,
v.
World Class Gun Shows Incorporated, Dr. Atomic's Depot, and Phil Bisenius, individually and d/b/a Dr. Atomic's Depot, Defendants.

          ORDER

          HON. JANE MAGNTTS-STINSON, CHIEF JUDGE.

         Plaintiff John Schmarr attended the Indy 1500 Gun & Knife Show (the “Gun Show”) on March 16, 2016, an event held at the Indiana State Fairgrounds in Indianapolis and operated by Defendant World Class Gun Shows Incorporated (“World Class”). While there, he purchased flares and other fireworks from Defendant Dr. Atomic's Depot (“Dr. Atomic's”), a vendor that had rented a booth from World Class to sell its products at the Gun Show. When Mr. Schmarr set off one of the flares nearly four months later during a Fourth of July celebration, the flare exploded in his hand. Mr. Schmarr lost his thumb, middle finger, and ring finger knuckle on his right hand, and his left hand was injured as well. Mr. Schmarr initiated this litigation against World Class, Dr. Atomic's, and Phil Bisenius, the sole proprietor of Dr. Atomic's, alleging negligence claims against each. World Class has filed a Motion to Dismiss, [Filing No. 26], which is now ripe for the Court's decision.

         I.

         Standard of Review

         Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         II.

         Background

         The following are the factual allegations in the Third Amended Complaint - the operative complaint in this case[1] - which the Court must accept as true at this time:

         World Class solicited, advertised to, and otherwise invited patrons to attend the Gun Show, which World Class conducted, operated, and managed. [Filing No. 19 at 5.] World Class also solicited the patronage of the general public for the sale of items and benefitted from that patronage. [Filing No. 19 at 5.] As part of its operations, World Class accepted payments from vendors to sell their products to patrons at the Gun Show. [Filing No. 19 at 6.] World Class required vendors to submit payment and a form, and provided vendors with the Indy 1500 Gun & Knife Show Exhibitor Rules and Regulations (the “Rules and Regulations”). [Filing No. 19 at 6; Filing No. 19-1.] The Rules and Regulations provide, in part, that “[n]o explosives, bombs, incendiary devices, or related items will be allowed, ” and that “[a]ny violation of these rules will result in immediate and permanent expulsion from this show and all future shows under our control.” [Filing No. 19-1.] The Rules and Regulations were put in place for the safety of purchasers at the Gun Show. [Filing No. 19 at 6.]

         Dr. Atomic's rented booth space in the course of its business as a dealer and vendor of explosives and fireworks from World Class for the Gun Show. [Filing No. 19 at 1.] Prior to the Gun Show, Mr. Bisenius submitted a form entitled “INDY 1500” which lists the “Name of Company” as “Sgt. Savages Book Bunker, ” and stated that Mr. Bisenius intended to exhibit “pyrotechnic supplies, ” among other things. [Filing No. 26-1.][2]

         On March 16, 2016, during the Gun Show, Mr. Schmarr purchased flares and other fireworks from Dr. Atomic's at the Dr. Atomic's booth. [Filing No. 19 at 2.] Dr. Atomic's warranted the items as being safe and usable and did so in order to induce Mr. Schmarr to purchase the flares and other fireworks. [Filing No. 19 at 2.]

         On July 3, 2016, Mr. Schmarr began to celebrate the July Fourth holiday by lighting one of the flares he had purchased from Dr. Atomic's. [Filing No. 19 at 2.] Upon lighting the flare, it immediately exploded in Mr. Schmarr's right hand causing his right thumb, right middle finger, and right ring finger knuckle to be blown off his hand. [Filing No. 19 at 2.] Mr. Schmarr also suffered severe and permanent damage to his left hand. [Filing No. 19 at 2.]

         Mr. Schmarr asserts negligence claims against Dr. Atomic's, Mr. Bisenius, and World Class. [Filing No. 19 .] World Class has moved to dismiss Mr. Schmarr's negligence claim ...


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