RESPONSIBILITY OF FIREARM OWNERS AND DEALERS FOR THEIR SECOND AMENDMENT RIGHT TO BEAR ARMS: A SURVEY OF THE CASELAW

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With rights comes responsibility. Who will be “responsible” for the epidemic of gun violence unique to the United States? Should those who exercise their “right” to bear arms, from manufacturers to dealers to owners, pay for the consequences of their conduct? Or should we limit responsibility to the criminal who pulls the trigger? After all, “Guns don’t kill people, people kill people.” While the shooter may be held criminally accountable, or even have a civil judgment rendered against him, he will seldom account financially for his actions. Instead, we the people will pay for the cost of his incarceration, the care of his victim, or both. But someone makes and sells and possesses the millions of guns in this country that people use to kill people. And it is certainly foreseeable that people kill people with guns-the National Rifle Association’s trite slogan admits as much. Gun violence is no longer just foreseeable, it is now a fact of life, and death for all too many Americans. We live in a society that is rearming itself out of fear. We are returning to the law of the Wild West, or lack thereof, but with much more firepower. At the behest of the NRA a majority of the states have passed concealed carry legislation that allows people to carry loaded guns into public places and private homes. The NRA recently has sponsored legislation in many states designed to preempt the right of municipalities to litigate the issue of responsibility for gun violence, having already eliminated their right to regulate firearms locally in many states. And with each perceived threat to the Second Amendment “right to bear arms” gun sales shoot up. If not for these scare tactics, dealers’ firearm sales and manufacturer’s profits, particularly from handguns, would have backfired. The “firearms community”, from manufacturers to dealers to owners, represented by the NRA is using their Second Amendment “right” to profit from our fear. But with rights comes responsibility.

The question is how to assess the responsibility of firearm manufacturers, dealers and owners that comes with the world they have created. The answer is one word-foreseeability. The more foreseeable a shooting is, the more responsible is the party who should, or perhaps did foresee it. Beginning with this general premise, the following cases point out several trends that are developing as the law attempts to match the responsibility for firearms violence with, the unprecedented expansion of firearm rights. First, the more removed the target defendant is from the shooting, the less likely it will be held responsible. Consequently, the easiest cases appear to be ones in which a gun owner negligently entrusts it to someone he knows should not possess a firearm. Somewhat more difficult are cases in which a dealer sells a firearm to an individual of whom he has little or no knowledge. And the most difficult case is against a manufacturer who has no specific knowledge of the use to which each gun it makes will be put. But as each case demonstrates, the decision to assess responsibility depends heavily on the particular facts of the case. Second, any time an intentional shooting is involved, as opposed to a negligent discharge, the knee jerk reaction is to blame the shooter and stop looking for other responsible parties. This intellectual laziness presents a high hurdle that must be cleared before the case can be decided on all of its facts. Finally, venue is sometimes predictive of the outcome, although the exceptions more than prove the rule.

A comparative analysis of the caselaw regarding the liability of dealers and owners of firearms is hardly possible since the law is still developing. There is little in the way of consistent trends other than those set forth above. For each decision that holds a dealer or the owner of a firearm liable, there is another which reaches the opposite result. But at least there are some decisions discussing the responsibility of sellers and owners, whereas the liability of manufacturers for the foreseeable use of it firearms has seldom been litigated, much less tried. This article will not address the responsibility of manufacturers as only time, better minds than mine, and the right set of facts will tell the tale. Finally, please note that many of the decisions discussed below are questionable as precedent because they are trial level, unreported, or the case is still being litigated. By the time you read this, and certainly if you save it for future reference, things will have changed in this rapidly developing area of the law. Hopefully, the panel at which this paper is presented will be able to make some sense of the disparate case law discussed below.

GUN OWNER LIABILITY

Romero v. National Rifle Association of American, Inc., 749 F. 2d 777 (D.C. Cir. 1984)
Neither the National Rifle Association nor its employee who stored his unregistered gun there are liable to the widow of the victim shot by the gun after it was stolen. The NRA was entitled to the benefit of the general common law rule of non-liability from harm resulting from criminal acts of third parties because it was not reasonably foreseeable. In spite of the employees violation of the District of Columbia’s firearms registration statute, he was not liable either because the purpose of preventing crimes from gun thieves was not clearly enough indicated in the statute to warrant imposition of civil liability for intervening criminal acts of third parties.

Bilicic v. Brake, 581 N.E.2d 586 (Ohio App. 1989)
A parent is not absolutely liable for any injury that occurs when he leaves a firearm accessible to children. A minor child loaned his father’s gun to a family friend without any knowledge of its eventual use in a robbery during which the Plaintiff was shot. The court held that the intervening criminal act broke the casual chain relieving the father of liability. But there was no evidence that either the father or son knew of the friend’s potential for criminal conduct.

Jacobs, et al. v. Tyson et al., No. A9A0346, Georgia Court of Appeals, May 28, 1991
Parents can be held liable for negligently keeping a loaded pistol where it is accessible to unsupervised children. This is the typical case where one boy retrieves a-gun from his parent’s dresser and while playing with it shoots a friend, in this case the gun allegedly fired without pulling the trigger. Firearms were held to be an inherently dangerous instrumentality as a matter of law. The owner of an inherently dangerous instrumentality is required to take exceptional precautions to prevent injury.

Andrade v. Baptiste 583 N.E.2d 837 (Mass. 1991)
A wife is has no legal ability, and therefore no accompanying duty, to control her husband’s misuse of his own property. Here, the wife allowed her husband to store his large capacity assault rifle in her house, of which she was the sole owner, and did not exercise any control over his access to the gun, despite knowing he had a serious drinking problem. After drinking nine beers, the husband took the gun from his wife’s house and shot a store clerk who had seen him take the gun. The court rejected claims of negligent entrustment pursuant to the Restatement of Torts (Second), Sections 308 and 318.

Hill v. Kingrey, 25th Judicial Circuit of Virginia, December 10, 1991
To the contrary, a wife can be found negligent if she permits her husband to use a firearm under her control if she knows that her husband is likely to use the firearm in a manner that may cause harm to others. Using a rifle owned by his wife, the husband shot a man who had mistakenly driven onto their property. The wife could be liable because she had implicitly given her husband permission to use the rifle by providing access to it.

Fly v. Cannon, 813 S.W.2d 458 (Tenn. App. 1991)
A grandmother who purchased a .44 magnum. handgun for her minor ward was not liable to the person shot by the ward after her grandson reached maturity. Despite violation of a Tennessee Statute prohibiting providing a pistol to a minor, the court found that the shooting was not foreseeable and that the cause of death was the intervening act of the former ward. The court did not address claims that the there was a violation of 18 USC 922 prohibiting the sale of handguns to people under 21 years of age because the grandmother was not in the class of persons, i.e. dealers and manufacturers, set forth in the statute.

Zellers v. Devaney, et al., 589 N.Y.S.2d 134 (N.Y. Sup. Ct. 1992)
A minor who illegally purchases BB gun ammunition used by another after he left it at the accident site is not entitled to judgment as a matter of law. Furthermore, his parents may be liable for their child’s improvident use of a dangerous instrument, particularly when they are aware and capable of controlling its use. The court held that it is well settled that a BB gun is a dangerous instrument and that the parties conduct was not sufficiently divorced from the ultimate injury so as to avoid responsibility.

Lee v. Hartwig, 848 S.W.2d 496 (Mo. App. 1993)
The user of firearms is held to the highest standard of care. Even then, it is up to the jury to determine whether he breached that standard of care in mistakenly shooting another hunter he mistook for a turkey. Absent an admission by the shooter that he breached this duty of care, there is no presumption of negligence. See Hendricks v. Broderick, 284 N.W.2d 209 (Iowa 1979). Other jurisdictions have adopted a presumption of negligence in which the shooter may be held liable as a matter of law for misperception of the target. See Green v. Hagele, 595 P.2d 1159 (Mont. 1979) and Watson v. State Farm, 469 So.2d 967 (La. 1985).

Brisco v. Fuller, 623 So.2d 196 (La. App. 1993)
Parents have no duty to prevent their adult child from endangering others with a firearm. Nor do gun owners have a duty to conceal a gun so that it is not taken without their permission. The parents were dismissed when their adult son, who lived with them, took his father’s shotgun and ammunition. The son, jealous of the victim for spending time with a woman, accidentally shot him while only intending to scare the victim. There was no evidence of intentional conduct or viscous propensities in this case either.

Todd v. Dow et al., 23 Cal Rptr. 2d 490 (Cal App. 1993)
Again, parents have no duty to control their adult son who accidentally shot his cousin with one of his many guns taken from his parent’s house where they were stored in his former bedroom. Nor is there any entrustment in this situation that may be considered negligent, as the parents were merely bailees who stored and returned a chattel to the owner. And again, there was no evidence of a propensity for violence or emotional instability on the part of the son.

Brahm v. Hatch, 609 N.Y.S.2d 956 (N.Y. Sup. 1994)
Parental liability arises only when there is a failure to supervise a child known to have a propensity for viscous conduct or when a child is entrusted with a dangerous instrument. Here, the estate of a father was held not liable as a matter of law when his son stole a Walther PPK .380 pistol from him and, wing it to kill his father and several other family members. The decision was based on the lack of any evidence that the father knew his son was dangerous or mentally ill. Nor was the storage of the gun in an unlocked dresser negligent when guns stored in a locked cabinet were also stolen.

Strever v. Kline, 53 Mont. 576 (1996)
The owners of firearms owe a duty to the general public to store their guns and ammunition in a reasonably safe manner. Because a firearm, particularly one that is loaded or with ammunition nearby, constitutes a dangerous instrument a higher degree of care is required which includes appropriate storage. The plaintiff and some friends stole a Ringer .22 Semiautomatic pistol and ammunition from an unlocked car and the shooter admitted he was “high” accidentally shot him with it. The court overturned several of is prior decisions holding that intervening criminal acts do not absolve an owner of liability if they are reasonably foreseeable in the circumstances. However, the court emphasized that each fact pattern must be considered on its own merits and here, although the owner breached his duty to safely store his gun, this was not the proximate cause of the accident.

Frey v. Smith, 685 A.2d 169 (Pa. Super. 1996)
An accident victim may make a negligence claim against a minor who entrusted a gun to another minor and the parents who failed to supervise their child. The shooter and his parents settled, leaving only the minor owner of the air gun and his parents who alleged they owed no duty to the third party victim. But because the parents allowed their son to possess a dangerous instrument without supervision, and because their son ultimately gave the air gun to an inexperienced child without instruction, the accident was foreseeable and both could be held responsible.

Elledge v. Mathis, 686 So. 2d 317 (Ala. App. 1996)
Parents were not liable for negligent entrustment of a BB gun to their son under Restatement of Torts (Second) Section 390 where no evidence was introduced that the child was incompetent, inexperienced or reckless. Nor did the parent’s knowledge of their son’s lack of formal safety training have any relevance because there was no evidence that a BB gun is a dangerous instrument requiring training. In reaching this conclusion the court relied on a dated Tennessee decision holding that an air rifle is a toy, not a gun. Highsaw v. Creech, 69 S.W.2d 249 (Tenn. Ct. App. 1933).

Ross v. Glasser, 559 N.W.2d 331 (Mich. App. 1996)
A father could be found liable for handing a loaded gun to his son, despite chasing after him to prevent its use. Here, the son who suffered from mental disturbances, including psychosis had been threatened and harassed by the Plaintiffs family. He bought three guns several months before the shooting and after being taunted by four of Plaintiffs friends, went into his house and ordered his father to give him one of the guns. The court held that this was not a case of nonfeasance, in which the father owed no duty absent a special relationship with his son. Instead, the court examined the fathers malfeasance using four factors: 1) the foreseeability of the harm; 2) the closeness of time between the act and injury; 3) the moral blame of the father; and 4) the burden placed on the public by recognizing a duty. All four factors argued in favor of liability and none of the intervening acts broke the chain of causation.

Payberg v. Harris, 931 P.2d 544 (Colo. App. 1996)
Negligent entrustment is not applicable to a bailment situation in which parents stored their son’s rifle and delivered it to him upon request. The court did not determine whether the parents owed a duty to third persons because the Plaintiff admitted this was a bailment. Consequently, the facts of the accident, including the shooter’s intoxication and his parent’s knowledge of his substance abuse were not relevant.

Resteiner v. Sturm Riuger and Company, Inc., et.al., 566 N.W.2d 53 (Mich. App. 1997)
Claims against the owner of a stolen gun were dismissed because strict liability cannot be imposed for mere possession of a firearm. Storage of a firearm is not an abnormally dangerous activity which requires the exercise of a high degree of care, like its use does. The court also held that the owner was not negligent for failing to secure the gun against theft because he had no duty to protect the victims from harm.

GUN DEALER LIABILITY

Farley v. Snug Enterprises, Inc., et al. 2d Jud. Cir. of Virginia, Slip Opinion, October 4, 1990
Gun dealer is liable for obvious straw purchase of the gun by minor later used to kill his teacher. The fifteen year-old student and his thirty-seven year-old cousin handled and discussed a Mc-1 1 semiautomatic assault pistol with a store clerk, then at a distance of nine feet from the clerk the minor handed his cousin $300 and instructed him to purchase the gun. The clerk explained to the cousin that the only thing that would prevent him from getting the gun would be if he answered 44yes” to any of the questions on the Firearm Transaction Record and said nothing to either of them concerning purchasing for or giving guns to minors. The court found, based on the facts, that the issues of proximate cause, intervening cause and foreseeability were for the jury despite the intentional nature of the minor’s conduct.

Phillips v. K-Mart Corporation , 588 So. 2d 142 (L.A. App. 1991)
K-Mart is not liable for selling .357 magnum ammunition to a 19 year-old who three days later used it in a handgun used to shoot plaintiffs decedent and himself. Not only has Louisiana reputed negligence per se as a cause of action, the subject ammunition was capable of being used in some rifles and therefore it was legal for purchase by a 19 year-old. )While there was evidence that the shooter tried to commit suicide several months earlier, there was no evidence of mental instability at the time of sale, as the clerk testified he was polite and calm. Finally, the court found that 18 U.S.C. §922 did not impose a duty on the part of K-Mart to train its clerks to detect signs of mental incompetency.

Gillian v. K-Mart, Inc., 594 So. 2d 1021 (La. App. 1992)
K-Mart is under no duty to protect people from being shot by a gun stolen from it unless the victim is a business patron, or at a minimum shot on K-Mart’s premises. In this case a deranged drifter stole a .22 caliber rifle from K-Mart and used it shortly thereafter to kill a gas station attendant and one day later shot another individual. A jury’s finding of strict liability was reversed because there was no evidence to establish that the burglar alarm on K-Mart’s premises was defective or that K-Mart had voluntarily assumed a duty to protect the general public from this risk.

Haines v. Raymond Arms and Donn’s, Inc. et al., 287, Slip Op. Phila. Ct. of Common Pleas, April 10, 1992
A gun dealer may be liable for negligently failing to give oral or written warnings to an inexperienced purchaser, in this case regarding the absence of a magazine safety disconnect mechanism. A friend of the plaintiffs removed the magazine of her Raven Model P-25 handgun and thinking it was unloaded and unaware that a bullet remained in the chamber pointed it at the owner and pulled the trigger resulting in her death. An expert testified that it was below the standard of care for a gun shop to deliver a gun to a purchaser without written instructions and oral instructions should also be given to an inexperienced purchaser. The court found that because it is not widely known that a gun will fire with a magazine removed, the dealer had a duty to inform the purchaser of this risk. The court also found that a two year delay between the purchase and the accident did not alleviate the risk posed by the dealer’s failure to warn and the evidence regarding the owner’s care and storage of the gun was sufficient to infer that she would have heeded a warning if given.

Jacoves v. United Merchandise Corp., 11 Cal Rptr. 2d 468 (Cal. App. 1992)
A claim for negligent entrustment of a rifle to a 23 year-old who committed suicide was dismissed despite evidence that the decedent was “confused, distraught and trembling.” The decedent first went to the defendant sporting goods store and inquired about buying a handgun but left when he was told there was a fifteen-day waiting period. He then returned to the same store and asked about purchasing a rifle which it sold him along with ammunition and instructed in its use. The decedent had previously been committed to a psychiatric hospital because of suicidal potential and used the rifle to kill himself later ‘ on the day of its purchase. While a firearms dealer does have a duty not to sell a firearms to an individual who appear to be a danger to themselves or others, the decedent’s alleged demeanor was not sufficiently manifest to prevent sale. The court did not reach the issue of whether the suicide constituted an intervening cause because there was no breach of the duty of care.

Sogo v. Garcia’s National Gun, Inc., 615 So. 2d 184 (Fla. App. 1993)
A gun shop that delivers a handgun in violation of a local three-day waiting period ordinance may be liable when the buyer commits suicide with the firearm hours after the purchase. Because the purpose of the Dade County Ordinance was to insure a “cooling off’ period, both for criminal assault or murder and suicide, the decedent is in the class of persons protected by the statute. The gun dealer knew or should have known of the required waiting period and its purpose, and thus had reason to anticipate the suicide, establish the causal relationship between violation of the ordinance and in the decedent’s death.

Hoosier v. Randa, 17 Cal. Rptr. 2d 518 (Cal. App. 1993)
The California Penal Code could be invoked to hold a dealer liable for the negligent sale and entrustment of a concealable firearm to a minor through a “straw man sale.” Here a 19 year-old inquired on several occasions about purchasing a 9-mm Smith & Wesson handgun but was told he was too young and that his grandmother could not purchase it for him. Several days later the minor and his 75 year-old grandmother purchased the handgun and returned to the store sixteen days later to pick it up. Twelve days later the minor killed another man at a party. After finding that a California law which prohibits a gun dealer from selling and delivering a concealable firearm to anyone under the age of 21 supported this civil cause of action, the court analyzed several factors outside the statute to determine if the defendants owed the duty of care to the decedent. These factors included the following: 1) foreseeability of the harm; 2) degree of certainty of the harm; 3) closeness of the connection between the defendant’s conduct and the injuries; 4) moral blame attached to the defendant; 5) policy of preventing future harm; 6) consequences to the community for imposing a duty; and 7) availability, cost and prevalence of insurance for the risk involved.

Coker v. Wal-Mart Stores, Inc., 642 So. 3d 774 (Fla. App. 1994)
A vendor’s legal sale of ammunition to an underage buyer may establish sufficient causation to prove negligence per se. Wal-Mart sold a box of .32 caliber ammunition to two young men without requesting identification or asking their age and four hours later they murdered in an auto parts store clerk. The appellate court found that Wal-Mart had a legal duty not to sell to minors in violation of 18 U.S.C. §922 and it had breached that duty. The court relied on Deck v. Gibson Productions Company of Albany, Inc. 679 F. 2d 212 (11th Cir. 1982) which held that violation of the Federal Gun Control Act is always evidence of negligence and also constitutes negligence per se if that state recognizes violation of a penal statute as such. There was no question that the ammunition sale was the cause in fact of the clerk’s death and the issue of proximate cause should be determined by a jury as there was sufficient evidence in this case to allege a causal relationship.

Drake v. Wal-Mart. Inc., 876 P. 2d 738 (Okla. App. 1994)
Despite an unlawful sale, the purchaser’s use of a firearm to commit suicide is a superseding cause of death when there is no reason for the seller to know that he planned to commit suicide. A 19 year-old woman purchased a handgun from Wal-Mart through two sales clerks who testified that she was seriously under weight, nervous, fidgety, looked blank and vacant and was unsure whether to complete the purchase. Despite this testimony, the court found there was insufficient evidence for the clerk to have known that the decedent was suicidal. The court did not determine whether or not violation of 18 U.S.C. §922 or an Oklahoma statute prohibiting the sale of a firearm to any person who is mentally or emotionally unbalanced or disturbed creates a private cause of action.

Kina v. Story’s, Inc., 54 F. 3d 697 (11th Cir. 1995)
A retailer who sold a firearm to a convicted felon without following proper BATF procedures may be liable to a victim of the purchaser under a negligence per se theory. The shooter, an ex-convict completed BATF Form 4473 stating that he was neither a convicted felon nor an unlawful user of controlled substances and took possession of the rifle which he used two days later to shoot the victim. However, the clerk failed to get the shooter’s signature on the form at the time the rifle was picked up. The appellate court reversed the trial court which had found this was negligence per se, but the clerk’s failure was immaterial and not the proximate cause of the shooting. Instead, it was for the jury to determine whether or not the seller’s actions were the proximate cause of the victim’s injury.

Jantzen v. Leslie Edelman of N.Y., Inc., 634 N.Y.S. 2d 551 (N.Y. Super. 1995)
A vendor’s sale of a firearm to a legal alien was merely a technical violation of New York state law limiting sales to citizens of the United States. This violation did not provide a sufficient causal connection to the decedent’s death to hold the vendor liable. Furthermore, the shooter properly completed Form 4473 stating he was not an illegal alien which is all that is required under the federal statute. The vendor was not liable as a matter of law when the shooter killed a police officer the day after he purchased the shotgun.

Lauria v. Brummet, 916 S.W. 2d 929 (Tenn. App. 1995)
K-Mart has no duty to guard against the criminal acts of a third party unless they have reason to know the acts are occurring or about to occur on the premises. A dealer does not have the same duty to prevent criminal acts as it does with respect to careless acts of its employees. Here two boys stole two shotguns the day before they used them to shoot a police officer investigating a complaint concerning gunshots being fired in an abandoned school. The court went on to hold that the intervening acts of the boys was a superseding cause and the crime resulting from KMart’s negligence was not foreseeable.

Rosser v. Wal-Mart Stores, Inc. 947 F. Sup. 903 (E. D. N. C. 1996)
Since parents in North Carolina can only be held liable for injuries from their child’s use of the BB gun when there is evidence tending to show the child would misuse the gun, the rule should be no more stringent when applied to retail stores. Since there is no evidence that the 12 year old boy who purchased this gun without his parent’s knowledge was likely to misuse it, the accident which injured his cousin was not foreseeable and consequently Wal-Mart had no legal duty to refuse the ‘ sale. Nor did the warnings on the ‘ gun itself against its sale to anyone under the age of 16 create a legal duty on the part of Wal-Mart as the purpose of warnings is to inform the customer, not to put retailers on notice regarding the sale of potentially dangerous items. Finally, even Wal-Mart’s internal policy restricting the sale of BB guns to only childr6n over the age of 16 did not create a legal duty because this would encourage retailers to abandon all internal policies for the protection of others in an effort to avoid future liability.

Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997)
Selling a firearm to an intoxicated person satisfies the minimal threshold creating a foreseeable “zone of risk7 of harming others. Here, the victim was shot by her ex-boyfriend and rendered a quadriplegic shortly after he purchased the .22-caliber bolt action rifle from a K-Mart store. The shooter testified he had consumed a fifth of whiskey and a case of beer between that morning and when he left a local bar around 8:30 p.m. to purchase the rifle and a box of bullets. While the clerk testified that the shooter did not appear to be intoxicated, he also admitted that he filled out the federal form for him because his handwriting was not legible. The court held that a firearm is a dangerous instrument because its use involves a high degree of risk of serious injury or death and the person who handles it is expected to exercise the highest degree of care. Finally, criminal statutes prohibiting the sale of a gun to the intoxicated individual did not preempt a negligence cause of action, but instead indicated broad public policy concerns about the dangers of firearms.

Brasher v. Wal-Mart Stores, Inc., 96-5542 (6th Cir., July 10, 1997)
Wal-Mart was not liable for its sale of a .357 Magnum Taurus revolver to a 19 year-old who used the gun to commit suicide fourteen months later. Since the store clerk did not notice anything that would indicate suicidal tendencies and the decedent’s own family was not aware of this possibility, the suicide was an intervening cause absolving Wal-Mart of liability. Violation of 18 U.S.C. §922 might be negligence per se but did not establish the causation element in and of itself. While Kentucky courts have used the doctrine of negligence per se to establish duty and breach, has never supplied the element of causation as this would raise negligence per se to strict liability. The court cited cases in other jurisdictions which held similarly: Drake v. Wal-Mart Inc., 876 P. 2d 73 8 (Okla. App. 1994); Chapman v. Oshman’s Sporting Goods, Inc., 792 S. W. 2d 785 (Tex. App. 1990); and Fly v. Cannon, 836 S.W. 2d 570 (Tenn. App. 1992). The court did note that in Crown v. Raymond, 764 P. 2d 1146 (Ariz. App. 1998) A court held the suicide of a minor was foreseeable based upon the existence of a state statute prohibiting the sale of firearms to minors, but distinguished the case on the basis that the statute it was interpreting was 18 U.S.C. §922.

Scoggins v. Wal-Mart Stores, Inc., 560 N.W. 2d 564 (Iowa 1997)
The purchase of handgun ammunition from Wal-Mart by an underage 20 year-old was not the proximate cause of his suicide later that day after arguing with his fiancée. In order to be the proximate cause of his death, the ammunition must-have been a “substantial factor” leading to harm which depends upon the proximity and foreseeability of that harm. Because there was no evidence that the decedent appeared suicidal when he purchased the ammunition his actions were not foreseeable and therefore not a substantial factor in establishing proximate cause. Furthermore, Wal-Mart was relieved of liability by the suicide which was a superseding event that broke a causal chain between its negligence in the resulting harm. The court declined to extend strict liability for violations of 18 U.S.C. § 922 finding that there was no evidence that was Congress’s intent in enacting the statute.

Valentine v. On Target, Inc., 686 A. 2d 636 (Md. App. 1999)
A gun storeowner does not owe a duty to the general public in the display and sale of its handguns to prevent their theft and illegal use. The plaintiff alleged that the dealer breached his duty of care in the way he displayed his guns, their general accessibility and lack of adequate security, as well as the failure to notice the theft and warn the community of same. The appellate court based its decision on public policy that despite the potential of guns to cause physical injury, this does not create a duty on the part of dealers to all persons who may be the subject of harm. Such a holding that gun merchants owe an indefinite duty to the general public in effect would be regulating the merchants which should be left to the legislature.

MISCELLANEOUS CASES OF NOTE

K-Mart Enterprises of Florida, Inc. v. Keller, 449 So. 2d 283 (Fla. App. 1983)
K-Mart’s employee marked “no” to two questions on the BATF form asking whether the buyer was under indictment for a crime and whether the buyer was an unlawful user of marijuana. The shooter testified that if he had been asked he would have truthfully responded to these questions which would have prevented the sale. The purchaser then loaned the gun to his brother was both an ex-heroin addict who was taking pills and an alcoholic who was drunk. The court determined the issues of proximate cause, foreseeability and intervening cause should be decided by the jury as the shooting of a police officer fell within the scope of danger or risk created by the negligent act in question. The criminal misuse of a firearm does not insulate the seller from liability arising out of violation of 18 U.S.C. §922.

State Farm Mutual Automobile Ins. Co. v. Davis, 937 F. 2d 1415 (9th Cir. 1991)
An automobile liability insurance policy provided coverage for injuries sustained by the passenger of another car as a result of gun shots originating from the insured automobile. A passenger in the insured vehicle shot at the driver of another vehicle that they had overtaken. The court held that the intentional shooting involved the “use” of the car under State Farm’s liability coverage because without the insured vehicle the shooter would have never overtaken the victim’s vehicle, the shot was fired while the insured vehicle was traveling down the highway and that the insured vehicle had to maneuver into position next to the other vehicle to provide an opportunity to shoot its driver. Consequently the use of the insured vehicle had more than a minimum causal connection with the shooting incident.

Trotman v. Mecchella, 618 A. 2d 982 (Pa. Super. 1992)
The driver of a vehicle is liable to a pedestrian shot by a passenger for both actual and punitive damages. The driver and the other three occupants of his vehicle were all intoxicated and he was aware that one of the passengers had a BB gun and was firing it out of the window. The driver called out to the victim who was walking along the street and he was shot in the eye when he approached the vehicle. The court relied on the driver’s testimony that he was aware of his passenger’s activity but took no steps to stop him in upholding an award of both actual and punitive damages.

Landstrom v. Hanover Ins. Co., 649 A. 2d 1272 (N.J. 1994)
The victim of a drive by shooting can recover benefits from an automobile insurance policy under New Jersey’s No-Fault Insurance Law. A New Jersey statute governing no-fault insurance required that policies pay benefits for injuries caused to pedestrians “by an automobile or an object propelled by or from an automobile.” The court found that the bullet was propelled from an automobile and therefore there was coverage under the policy. Furthermore, the policy covered any event that appeared accidental from the victim’s point of view and therefore intentional acts such as shootings were covered under the law. It was significant that the car was a necessary accessory to the crime, providing anonymity in a quick means of escape.

Jamison v. Dance’s Sporting Goods, Inc., 854 F. Supp. 248 (S.D.N.Y. 1994)
The evidence would not support a finding that the retail gun either knew or had reasonable cause to believe that the buyer had been adjudicated an incompetent or had been committed to a mental institution so as to establish negligence per se. There was no showing that the dealer had reasonable cause to believe that the buyer was upset when he bought the pistol and the buyer’s mistake in filling out the government form was not evidence of mental deficiency. Prior citations of the dealer for violations in connection with other sales did not make it more probable that the dealer should have known this buyer’s history of mental illness. The purchaser of the subject gun allegedly lost it in a Virginia bus stations and 11 days later it was used in New York resulting in the tragic death of a young child.

Braun v. Soldier Fortune Magazine. Inc., 968 F. 2d 1110 (11th Cir. 1992)
Soldier of Fortune Magazine published a classified advertisement which read “GUN FOR HIRE: Thirty-seven year-old professional mercenary desires jobs . . . bodyguard, courier, and other special skills. All jobs considered.” The individual who placed the ad was hired by two business associates of the victim to kill him, which he did. Using a modified negligence standard under Georgia law, a publisher should not be held liable for failing to investigate an ambiguous advertisement. Here however, the ad on its face without further investigation would have alerted a reasonably prudent publisher to a clearly identifiable unreasonable risk of harm to the public. The “clearly identifiable risk” negligence standard was reasonable in that it did not require investigation of every advertisement published and therefore did not impermissibly chill protected commercial speech. Because the language of the ad should have alerted the magazine to the potential risk, the shooter’s intervening criminal acts did not break the chain of causation.

Way v. Boy Scouts of America, 856 S.W. 2d 230 (Tex. App. 1993)
The September 1988 of Boy’s Life Magazine contained an advertising supplement on shooting sports sponsored by the National Shooting Sports Foundation and including an advertisement by Remington Arms Co., Inc. After reading the supplement, the minor decedent and several of his friends located an old rifle with a .22 caliber cartridge they found and began to experiment without adult supervision, when the rifle accidentally discharged. The court rejected the theory of negligent publication holding that the supplement served the useful function of promoting firearm safety to minors, thereby outweighing any perceived risk. Texas law also limited the attractive nuisance doctrine to premises liability cases in that the written word has never been held to create an attractive nuisance that would impose a special duty on the publisher. Nor was the magazine unreasonably dangerous under the Restatement of Torts (Second) Sections 402A or 402B because the ideas and information contained in the supplement are not products.

Rice, et al. v. Paladin Enterprises, Inc., 128 F. 3d 233 (4th Cir. 1997)
The shooter purchased a book entitled Hit Man: A Technical Manual for Independent Contractors a year before he was hired by the victim’s husband to kill her. The hit man relied on the book which contained detailed instructions, diagrams and plans. The court stated that First Amendment protections do not extend to criminal acts like aiding and abetting murder simply because they may involve speech. The court found that the book went beyond “abstract advocacy of lawlessness” in that Plaintiff proved a heightened standard of intent because: the book described its purpose as providing assistance to would be murderers, additional text openly encouraged the reader to commit murder; and the jury could have reasonably found that the book had no legitimate purpose other than the encouragement of the murder. The court also relied upon the defendant’s underground marketing of the book supported the fact that it would be purposed by customers who were much more incidentally interested in its content.

Theobald v. Dolcimascla, 690 A. 2d 1100 (N.J. Super. 1997)
Friends of the decedent have no common law duty as mere observers to a game of Russian Roulette to prevent their host from killing himself. The game of Russian Roulette was not a joint enterprise and the other teenagers did not participate or encourage the activity. In the absence of a special relationship, the common law does not require a stranger to come to the aid of another person, even if the inaction would and does result in death.

Alderman v. Bradley, 597 S.W. 2d 264 (Ky. App. 1997)
Even if the gun dealer violated the Federal Gun Control Act by permitting an adult to make a “straw man” purchase of a rifle for a 17 year-old minor who fatally shot his girlfriend in a hunting accident, such violation was not negligent per se. In Kentucky, a minor is permitted to own a rifle and the federal statute was not designed to protect against accidents that occur as a result of negligence during ordinary and legitimate use of firearms such as hunting

Braman v. California 33 Cal. Rptr. 2d 608 (Cal. 1994)
The California Department of Justice breached its statutory duty by failing to investigate or report a purchaser’s history of mental illness to a gun dealer during the statutory 15-day waiting period. As the result of an amendment to California’s Dangerous Weapons Control Law the Department of Justice has a mandatory duty to examine its criminal records and the records of the State Department of Mental Health in order to determine whether a firearms purchaser is a member of any proscribed class. A further amendment added to the list of prohibited classes, purchasers who are a danger to them, the purpose being to prevent suicides was established. By enacting these two amendments trying the state’s duty to the California Tort Claims Act while at the same time rejecting language proposed by the Attorney General that immunized the state against liability, a duty was established that would give rise to liability. Since the state’s failure to prevent the sale of the gun to the decedent was a substantial factor in his suicide, the question of causation must go to the jury.

Huebner by Lane v. Koelfgren 519 N.W. 2d 48 (Minn. App. 1994)
An adult standard of care should be applied to determine the negligence of a 14 year-old who injured another boy with a BB gun. In addition to cases involving operation of automobiles, airplanes and power boats, an adult standard of care is applicable to anyone who handles guns.

  • The author gratefully acknowledges the assistance of Josh Horwitz, editor of the Firearms Litigation Reporter published by the Firearms Litigation Clearinghouse, from whom much of the above material was obtained.

Presentation to the American Bar Association Torts and Insurance Practice Section Seminar entitled: Gun Violence Liability: Taking Aim at the Gun Industry – Are Guns the Next Tobacco? June 4-5, 1999, Washington, D.C.