GUN STORAGE LIABILITY IN THE WAKE OF LONG V. TURK, KANSAS TRIAL LAWYERS ASSOCIATION JOURNAL, SEPTEMBER 1999

GUN STORAGE LIABILITY IN THE WAKE OF LONG V. TURK (1)


By Timothy Monsees (2)
tmonsees@monseesmayer.com

KANSAS CITY OFFICE
4717 Grand, Suite 820
Kansas City, Missouri 64112
(816) 361-5550
(866) 774-3233

SPRINGFIELD OFFICE
1021 E. Walnut
Springfield, Missouri 65806
(417) 866-8687
(866) 774-3233

PERSONAL INJURY AND WRONGFUL DEATH LAWYERS
www.monseesmayer.com

I. Introduction

If one day were to singularly illustrate the rapid rise of teens and their penchant for gun violence, it would be May 21, 1998. Notwithstanding the daunting fifteen person death toll of the April 20, 1999 Littleton, Colorado tragedy, May 21, 1998 stands out for its broad reaching acts.

No less than four major gun events transpired on that day and stunned a nation in denial. (3) A 15-year-old Springfield, Oregon boy opened fire in his school’s cafeteria killing two students. Just miles away in Onalaska, Washington another 15-year-old boarded a school bus brandishing a gun and ordered his girlfriend to his home where he shot himself in the head. At a suburban Houston high school a girl was wounded when a gun kept in a backpack by a fellow student discharged in the middle of biology class. And finally, three St. Charles, Missouri sixth-graders were found to be producing a “hit list” and plotting to kill classmates via a sniper attack on the last day of school.

Children and school violence is especially troubling for America, but the deadly combination of guns and teens is a much greater problem overall. Legislators have scrambled to craft tougher laws and regulations for teens. From the purchase of firearms to the use and storage of those weapons, lawmakers have attempted to arm the courts of the United States with tougher “ammunition” in their battle against teen violence.

As legislators wage lengthy political wars over gun control, the courts have been forced by public policy dictates into applying older legislation to modern situations. Such was the case in the 1998 Long decision. Ill-equipped due to tardy lawmakers, the Kansas Supreme Court attacked teen violence head on, armed with only antiquated precedents and a mission for curbing such dangers.

II. The Decision and its Impact on Kansas

Kansas has recently been swept into the national trend of increasing liability for parents who fail to safeguard firearms in their homes. Growing awareness of the harms associated with children and guns have propelled this heightened duty to protect. In Long v. Turk, the Kansas Supreme Court addressed the question of parental liability for improper safeguarding of dangerous weapons. (4)

The situation in Long was horrific, but it is no longer considered surprising. Matthew Turk, age 17, was driving around Topeka with a concealed handgun when he encountered Tony Long, also age 17, driving a van. After a shouting match ensued, Tony drove off with Matthew in pursuit. Matthew then reached under his car’s floor mat and pulled out a family-owned .357 Magnum handgun. He fired one shot through the van’s back window and the hollow point slug killed Tony. Matthew was tried as an adult and was convicted of involuntary manslaughter. (5)

Alice Long, mother of Tony, alleged that Steven Turk, father of Matthew, was responsible for the death of her son as the owner of the handgun in question. A number of issues surfaced in this case which made it truly a benchmark for future parental liability in Kansas. Matthew Long was just 37 days short of his 18 th birthday. (6) While legally a minor, hunting activities and the use of firearms is so engrained in Midwestern culture that lawmakers are reluctant to subject parents of older teens to gun storage liability. Second, the case created the possibility of a plethora of future lawsuits. Finally, the sheer brutality of the situation, coupled with a growing public concern over guns and children, aroused frequently conservative, “guns-rights”, Midwestern values.

The district court granted summary judgment for Turk, relying on the cornerstone case for parental liability and guns in Kansas, Capps v. Carpenter. (7) This decision established the legal principle that it would not be enough to simply determine that the defendant allowed his son to carry one of his guns, but rather Matthew’s disposition must have made it foreseeable that injury would have occurred.

The Supreme Court rejected the District Court’s view of parental liability and gun use by anointing a .357 Magnum with the label of a “dangerous instrumentality”. The immense danger of modern firearms mandated that Kansas case law precedents are out-dated and that new standards must be created. While the District Court equated a .357 Magnum with other guns of past cases such as BB guns and spring guns, the Supreme Court placed the firearm in a more dangerous category.

We have characterized certain instrumentalities, i.e., explosives, gas distribution systems, electrical transmission lines, and firearms, to be inherently dangerous. Heightened care in their safekeeping is required. (8)

The Kansas Supreme Court departed from the Capps case and its examination of injuries from the use of a BB gun, in favor of Wroth v. McKinney (9) and use of a handgun. Wroth created a greater duty of care with regard to firearms without imposing absolute liability on the gun owner. Capps, circa 1930, involved a BB gun accident which left a seven-year-old without the use of an eye. Wroth, decided in 1962, centered around the death of a four-year-old who found a loaded pistol within his reach. Both cases are easily distinguished by the severity of the individual injuries and the era in which they were inflicted.

Perhaps most notable, the Supreme Court observed in Long that many of the often-relied upon gun liability cases such as Capps, are outdated and rooted in an entirely different era. (10) The Court further distinguished the antiquated decision in Parman v. Lemmon, (11) as such an inapplicable precedent. Parman dealt with a hunting injury of a sixteen-year-old due to the alleged improper handling of a 20-gauge pump shotgun by a fourteen-year-old. This 1925 case upheld traditional hunting rights, but still placed liability on the father for negligently entrusting such a dangerous weapon to a minor. Due to the age of this decision, the Long court chose to establish a new model based on current gun safety concerns.

Kansas has historically maintained that parents shall not be liable for wrongful acts of their children if they knew nothing of them. (12) But if parents know of their child’s intent to perform a wrongful act or of their predisposed ill-behavior, they have a duty to exercise proper control. (13)

A recent Kansas Supreme Court decision, Cullip v. Domann (14) , further defined negligent firearm use liability. The case involved an accidental shooting by a minor during a routine hunting excursion. Rather than abandon Kansas’ traditional hunting background and adopt, “defacto”, gun control, the Supreme Court distinguished hunting accidents from a parent’s liability for safe gun storage. In Cullip, the parents of the defendant had properly prepared their son to handle hunting firearms and were, therefore, exonerated from any negligence. Interestingly, the court reasoned that hunting accidents were not foreseeable.

III.Other Jurisdictions Gun Control Efforts

Florida became the first state to provide legislation to combat children’s access to guns. (15) In 1989, Florida enacted legislation making it a misdemeanor crime to store or leave a loaded firearm within the “reach or easy access” of a minor. If the minor injures himself or someone else, the statute authorizes a felony conviction. Fifteen additional states have enacted similar legislation (in order of legislation passing date): Connecticut, Nevada, New Jersey, Virginia, Wisconsin, Hawaii, Maryland, Minnesota, North Carolina, Delaware, Rhode Island, Texas, and Massachusetts. (16)

While more states are pushing for child access prevention laws, the majority of those laws currently being used or considered would not have applied to the Long case since he was near his 18 th birthday. Of the sixteen states that have adopted child access prevention laws: seven define minors as those under the age of sixteen, four define minors as under fourteen, and one defines them as under twelve. Just four states define a minor as someone under the age of eighteen. (17)

Other states have wrestled with the appropriate balance between liability and parental immunity. Gun control has galvanized the public, as recent episodes of gun-toting kids have shocked the community. Many states have determined that the negligent storage of guns or negligent instruction as to their use are discretionary acts protected under the doctrine of parental immunity. (18) Parental immunity is a doctrine that protects parents from liability for their children’s acts. (19) Public policy dictates a doctrine the protects parents while conducting discretionary child-raising acts and decisions.

Kansas examines parental immunity on a strict case-by-case basis and presumes that no immunity will be afforded except in cases where the exercise of parental discretion or authority is involved. For instance, in Nocktonick v. Nocktonick the Supreme Court of Kansas declined to extend the parental immunity doctrine to shield a mother from a damage claim from her minor child injured in an automobile collision. (20) The Court failed to establish a steadfast parental immunity rule, but instead reserved review of each future case on its case-specific facts. (21)

It is uncertain whether Long will prompt increased legislative action focused on properly defining parental immunity in Kansas. Other legislative bodies nationwide have tackled the parental immunity dilemma by creating strict statutory regulations that circumvent any discussion of parental immunity.(22) Such regulations may be borne from the Long decision, but while parental negligence would be established through such laws, a parent would not likely be absolutely liable. (23)

The judicial systems of other jurisdictions are splintered in their approach of assessing parental liability for the negligent storage of firearms. Some courts continue to aggressively protect gun rights and decline to hold parents liable for the negligent storage of firearms absent extraordinary circumstances. (24)Other jurisdictions have embraced greater liability for parents and strive to limit accidents involving children and guns. The Louisiana Court of Appeals, for example, leveled a high duty of extraordinary care on foster parents in securing dangerous weapons. (25) Finally, some jurisdictions have extended parental immunity to protect negligent gun storage and instruction as discretionary in nature and therefore no liability can be attached. The Texas Court of Appeal decision in Hoffmeyer v. Hoffmeyer, established such a rule.(26)

As seen from a simple national comparison of gun control measures, Kansas lags far behind most other states. (27) Part of this is due to Kansas’ continued protection of firmly held beliefs in hunting and familial respect coupled with the majority of the state’s comparatively violence-free environment. Its legislative response to the increase of gun tragedies nationwide has been lethargic.

IV.The Future of Gun Storage Liability in Kansas

The Long decision will undoubtedly open the door for increased legal redress for negligent storage of firearms in Kansas. The case provides a firm background for creating civil liability for parents who fail to safeguard their firearms from their teens. Since a large number of teens acquire their firearms through their parent’s lax storage techniques, a Long scenario is common.

Kansas, and the nation as a whole, must continue to search for legislative and judicial remedies in an effort to stem the tide of increasing gun violence. Such a battle must be accomplished in an equitable manner that strives to remain respectful of our heritage and traditions.

Footnotes

1. Long v. Turk, 265 Kan. 855, 962 P.2d 1093 (Aug. 19, 1998).

2. This article was prepared with the assistance of Gabe Hinkebein, a third-year law student at the University of Missouri at Kansas City. Mr. Hinkebein’s help is greatly appreciated.

3. “Violence in U.S. Schools”, ABC News (visited July 6, 1999)

4. Id.

5. Id. at 857.

6. Id.

7. Capps v. Carpenter, 129 Kan. 462, 283 P. 655 (1930).

8. Long at 860; see Cope v. Kansas Power & Light Co., 192 Kan. 755, 391 P.2d 107 (1964) (a high voltage wire); Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P.2d 162 (1940) (gas leaking from a utilities lines); Clark v. E.I. Dupont De Nemours Powder Co., 94 Kan. 268, 146 P. 320 (1915) (solidified glycerine explosive).

9. Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962).

10. Long at 862.

11. Parman v. Lemmon, 119 Kan. 323, 244 P. 227 (1925), overruled 120 Kan. 370, 244 P. 232 (1926) (ruling that a 20-gauge Winchester pump shotgun is not a dangerous weapon due to its hunting protocol).

12. See. Edwards v. Crume, 13 Kan. 348.

13. Sharpe v. Williams, 41 Kan. 56, 20 P. 497 (1889).

14. Cullip v. Domann, 266 Kan. 550, 972 P.2d 776 (1999).

15. “Child Access Prevention Laws State Summaries”, (visited July 28, 1999), http://www.handguncontrol.org/caplaws.htm

16. Id.

17. Id.

18. Hoffmeyer v. Hoffmeyer, 869 S.W.2d 667 (Tex. App 1994). It is still unsure as to whether Texas’ Child Access Prevention Law passed in 1995 would substantially affect a similar outcome in the future.

19. See, Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (1996).

20. Id.; see, Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980) (This is the most widely recognized Kansas case outlining the uses of parental immunity and is widely cited as the governing decision.)

21. Id. at 142.

22. See, Ann-Marie White, A New Trend in Gun Control: Criminal Liability for the Negligent Storage of Firearms, 30 Hous. L. Rev. 1389, 1427-1428 (1993) (Detailing Houston’s attempt to establish a per se municipal violation for any negligent gun storage situations).

23. See, Connelly v. Wheaton, 298 N.Y.S.2d 842 (1969) (Ruling that the violation of a misdemeanor prohibiting giving a gun to a minor is merely evidence of negligence and does not make the parents and child absolutely liable to the injured party).

24. See, Hall v. McBryde, 919 P.2d 910 (Colo. Ct. App. 1996); Nearor v. Davis, 694 N.E.2d 120 (Ohio Ct. App. 1997).

25. See, Cathey v. Bernard, 467 So.2d 9 (La. Ct. App. 1985) (applying a high standard of care known as a “duty to use extraordinary care”).

26. See, Hoffmeyer v. Hoffmeyer, 869 S.W.2d 667 (Tex. Ct. App. 1994).

27. See, e.g; “What happened in my state when the Brady law waiting period expired,” (visited July 28, 1999), http://www.handguncontrol.org/sunstate.htm