United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNTTS-STINSON, CHIEF JUDGE.
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
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.”
following are the factual allegations in the Third Amended
Complaint - the operative complaint in this
- which the Court must accept as true at this time:
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.]
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.]
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
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.]
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