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1167 (1996) Dolores MOSS and Larry Moss, Plaintiffs, v. CROSMAN CORPORATION and K-Mart Corporation, Defendants. United States District Court, N.D. Indiana, South Bend Division.

September 9, 1996. *1168 *1169 Frank E.

Tolbert, Miller Tolbert Muehlhausen Muehlhausen and Groff, Logansport, IN, Edmond W. Foley, Foley and Small, South Bend, IN, Hugo A. Bamberth, Hugo A. Bamberth Law Office, LaPorte, IN, for Dolores Moss and Larry Moss. Abeska, Roemer and Mintz, South Bend, IN, Steven E. War Of The Worlds 30th Anniversary Edition 2cd2132f.

Danekas, Wildman Harrold Allen and Dixon, Chicago, IL, for Crosman Corporation, Coleman Company, Inc. And Kmart Corporation.

Ettl, South Bend, IN, for the Children's Campus, Inc. MEMORANDUM AND ORDER MILLER, District Judge. The court has jurisdiction over this suit under 28 U.S.C.

§ 1332 because of the parties' diverse citizenship, and Indiana law provides the rule of decision. The defendants seek summary judgment on the plaintiffs' claims, and request oral argument on their motion. The parties' briefs sufficiently inform the court of their respective arguments, and the court denies the motion for oral argument. As explained in greater detail below, the present state of Indiana law does not support the plaintiffs' claims, and there is no basis upon which to predict a change in Indiana law that would allow the plaintiffs to prevail. Accordingly, the court grants the defendants' motion for summary judgment. BACKGROUND This case arises from the death of Joshua Moss ('Josh'), the seven-year old son of plaintiffs Dolores and Larry Moss, on September 28, 1993. His death resulted from a shot fired by his cousin, Timothy Arnett ('Tim'), then 11 years old, with the Crosman 760 Pumpmaster airgun Josh's father bought for him at K-Mart just ten days before.

Tim and Josh were firing the airgun at pop cans without supervision in Tim's backyard when the fatal shooting occurred. Tim was convicted of criminal recklessness and sentenced to home detention as a result of the shooting. The Mosses brought this suit against Crosman, Coleman Company, Inc., [1] and K-Mart, asserting a strict products liability claim and a claim for emotional damages the Mosses suffered as a result of their son's death against all defendants, and a claim for punitive damages against defendant Crosman for its alleged reckless disregard of its duties. Pursuant to N.D.Ind.L.R. 56.1, Crosman and K-Mart submitted a statement of material facts, and the Mosses submitted a statement of genuine issues 'setting forth, with appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence, all material facts as to which it is contended there exists a genuine issue necessary to be litigated.' The genuine issues the Mosses contend exist are: (1) whether the airgun was defective and unreasonably dangerous because it was needlessly powerful and because its warnings were inadequate; (2) whether the plaintiffs are entitled to recover emotional distress damages (this, the Mosses concede, is a matter of law for the court to decide, though a jury must decide the nature and extent of those damages); and (3) whether there is clear and convincing evidence entitling the plaintiffs to punitive damages in this case. The Mosses' statement of genuine issues does not contend that a genuine issue as to any of the facts set forth in the defendants' statement exists.