Does a store have to ensure the lawful use of a product?

“Ms. Jenkins alleges that W.L. Roberts, Inc. “had a duty to take reasonable care to ensure that [nitrous oxide] sold at its store # 182, would be used for its lawful purpose of enhancing the engine performance of race cars and not as an inhalant.” The complaint alleged no other basis for the existence of a legal duty. The relevant Florida statutes at the time of the sale of nitrous oxide at issue here and Mr. Goddard’s death were sections 499.039 and 877.111(2), Florida Statutes (1997). Section 499.039 made it unlawful for a person to sell, deliver, or give to a person under the age of 18 years any compound, liquid, or chemical containing … nitrous oxide … for the purpose of inducing by breathing, inhaling, or ingesting a condition of intoxication or which is intended to distort or disturb the auditory, visual, or other physical or mental processes.

(Emphasis added.) Section 877.111(2) made it unlawful for any person to possess, buy, sell, or otherwise transfer nitrous oxide for the purpose of inducing or aiding any other person to violate the provisions of the statute.¹ Both statutes require actual knowledge for violation of their provisions. There is no evidence in the record, and the appellant did not allege, that the person who bought the nitrous oxide, Tyler Augat, was under the age of 18 at the time the store sold it to him, and there is no competent evidence in the record that the store sold nitrous oxide to him or anyone under the age of 18 with the knowledge that they intended to inhale it. Although the appellant alleged in paragraphs 11 and 12 of the complaint that the store “knew or should have known” that the nitrous oxide sold to Tyler Augat was intended to be used as an inhalant or that Mr. Augat might distribute the nitrous oxide to others for inhaling, there is no competent evidence in the record that anyone associated with the auto parts store knew that Tyler Augat purchased the nitrous oxide with the intention of inhaling it or with the intention of giving it to a third party to inhale. The affidavits of Kevin Roberts, Walter Roberts, and Beverly Roberts contain sworn statements that there was no such knowledge. Absent special circumstances, there is no legal duty requiring a store to ensure that a product lawfully sold *784 will ultimately be used by a customer or unknown third party for a lawful purpose.”