Missouri gun shop may be sued for death from gun sale
By Larry Delano Coleman, Esq.
Thursday, April 07, 2016
The Missouri Supreme Court has just ruled that a gun shop may be sued at common law in “negligent entrustment” for its sale of a gun to a person that it knew to be mentally disturbed, who later shortly killed another.
While this outcome may seem to be a rather pedestrian holding, it is actually far from it. In this era of gun-mania, where Congress has liberalized gun laws, even immunized gun sellers from civil liability for certain gun-related consequences, this April 5, 2016, holding was anything but “pedestrian.”
The facts in Janet Delana (Appellant) against CED Sales Inc. d/b/a Odessa Gun & Pawn, Charles Doleshal, Brett Doleshal, and Derrick Dady (Respondents) for negligence, negligent entrustment, and negligence per se, are these:
“June 25, 2012, Appellant telephoned Odessa Gun & Pawn and asked Mr. Dady, the store manager, to refrain from selling a gun to her daughter, Colby Weathers. Appellant told Mr. Dady that Ms. Weathers was severely mentally ill and should not have a gun. Appellant also told Mr. Dady that Ms. Weathers had purchased a gun at Odessa Gun & Pawn the previous month and attempted to commit suicide. Appellant informed Mr. Dady of Ms. Weathers’ full name, social security number and birthdate and told him that Ms. Weathers would likely attempt to purchase another gun after receiving her social security disability payment. Appellant told Mr. Dady, “I’m begging you. I’m begging you as a mother, if she comes in, please don’t sell her a gun.” Two days after Appellant begged Mr. Dady to refrain from selling a gun to Ms. Weathers, Mr. Dady sold Ms. Weathers a gun and ammunition. Within an hour of the sale, Ms. Weathers shot and killed Tex Delana – her father and Appellant’s husband – with the gun she had just purchased from Respondents. The State charged Ms. Weathers with murder. The State determined that Ms. Weathers suffered from persistent “severe psychotic mental illness,” including schizophrenia. The State concluded that on the day of the shooting, Ms. Weathers’ mental illness rendered her “incapable of appreciating the nature, quality, or wrongfulness of her conduct.” The circuit court accepted Ms. Weathers’ plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Appellant then filed the instant wrongful death action alleging that Odessa Gun & Pawn was liable under theories of negligence, negligence per se and negligent entrustment.”
http://cases.justia.com/missouri/supreme-court/2016-sc95013.pdf?ts=1459879307
At issue here was a federal law, “Protection of Lawful Commerce in Arms Act,” 15 U.S.C. section 7901, et seq., (PLCAA):
“The PLCAA provides that “[a] qualified civil liability action may not be brought in any Federal or State court.” 15 U.S.C. section 7902(a). All qualified civil liability actions “shall be immediately dismissed by the court in which the action was brought or is currently pending.” 15 U.S.C. section 7902 (b). The PLCAA defines a “qualified civil liability action” as “a civil action ... brought by any person against a ... seller of a qualified product ... for damages ... resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. section 7903(5)(A). A “qualified product” includes firearms and ammunition. 15 U.S.C. section 7903(4). Actions based on negligence per se, negligent entrustment, and knowing violations of state or federal statutes related to firearms are expressly excluded from definition of a “qualified civil liability action.” 15 U.S.C. section 7903(5)(A)(ii).
Despite the breadth and depth of this seeming, federal statutory, preclusion, the Missouri Supreme Court found a narrow path around it, using the federal statute language to preserve the widow’s state claim for negligent entrustment.
“The preemption of Appellant’s negligence action leaves open the issue of whether Appellant has a viable claim for negligent entrustment. The PLCAA provides that negligent entrustment actions are not preempted, 15 U.S.C. section 7903(5)(A)(ii). The statute does not, however, establish a cause of action for negligent entrustment. 15 U.S.C. section 7903(5)(C). Therefore, “a state-law claim may continue to be asserted, even if it is not denominated as a ‘negligent entrustment’ claim under state law, if it falls within the definition of a ‘negligent entrustment’ claim provided in” the PLCAA…The PLCAA defines non-preempted negligent entrustment actions as involving: the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. 15 U.S.C. section 7903(5)(B). Appellant’s negligent entrustment claim fits within the statutory definition. Appellant alleges that Respondents sold a gun to Ms. Weathers with knowledge that she would likely use the gun in a manner that would pose an unreasonable risk of physical harm to herself or others. The trial court concluded that Respondents were entitled to judgment because, even if Appellant’s claim is not preempted by the PLCAA, Missouri law does not recognize a cause of action for negligent entrustment against a seller. Missouri law defines the tort of negligent entrustment with reference to section 390 of the Restatement (Second) of Torts….Section 390 of the Restatement defines “negligent entrustment” as follows: One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
The Missouri Supreme Court concluded, after analyzing similar holdings from other states, that:
“Irrespective of what the claim is called, Missouri law authorizes claims that fit within the PLCAA’s definition of a non-preempted claim for “negligent entrustment.” Appellant alleges that Respondents supplied a firearm and ammunition to Ms. Weathers with knowledge that Ms. Weathers’ possession of a firearm posed an unreasonable risk of harm to herself and others due to her severe, ongoing mental illness. The fact that Respondents supplied the firearm to Ms. Weathers through a sale does not preclude Appellant’s negligent entrustment claim. The trial court erred in granting judgment in favor of Respondents on Appellant’s claim for negligent entrustment. This claim is not preempted by the PLCAA and is recognized by Missouri law.”
Accordingly the judgment on the negligent entrustment claims for the gun store sellers was reversed.
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Thursday, April 7, 2016
Missouri gun sellers may be sued for negligent entrustment
Missouri gun shop may be sued for death from gun sale
By Larry Delano Coleman, Esq.
Thursday, April 07, 2016
The Missouri Supreme Court has just ruled that a gun shop may be sued at common law in “negligent entrustment” for its sale of a gun to a person that it knew to be mentally disturbed, who later shortly killed another.
While this outcome may seem to be a rather pedestrian holding, it is actually far from it. In this era of gun-mania, where Congress has liberalized gun laws, even immunized gun sellers from civil liability for certain gun-related consequences, this April 5, 2016, holding was anything but “pedestrian.”
The facts in Janet Delana (Appellant) against CED Sales Inc. d/b/a Odessa Gun & Pawn, Charles Doleshal, Brett Doleshal, and Derrick Dady (Respondents) for negligence, negligent entrustment, and negligence per se, are these:
“June 25, 2012, Appellant telephoned Odessa Gun & Pawn and asked Mr. Dady, the store manager, to refrain from selling a gun to her daughter, Colby Weathers. Appellant told Mr. Dady that Ms. Weathers was severely mentally ill and should not have a gun. Appellant also told Mr. Dady that Ms. Weathers had purchased a gun at Odessa Gun & Pawn the previous month and attempted to commit suicide. Appellant informed Mr. Dady of Ms. Weathers’ full name, social security number and birthdate and told him that Ms. Weathers would likely attempt to purchase another gun after receiving her social security disability payment. Appellant told Mr. Dady, “I’m begging you. I’m begging you as a mother, if she comes in, please don’t sell her a gun.” Two days after Appellant begged Mr. Dady to refrain from selling a gun to Ms. Weathers, Mr. Dady sold Ms. Weathers a gun and ammunition. Within an hour of the sale, Ms. Weathers shot and killed Tex Delana – her father and Appellant’s husband – with the gun she had just purchased from Respondents. The State charged Ms. Weathers with murder. The State determined that Ms. Weathers suffered from persistent “severe psychotic mental illness,” including schizophrenia. The State concluded that on the day of the shooting, Ms. Weathers’ mental illness rendered her “incapable of appreciating the nature, quality, or wrongfulness of her conduct.” The circuit court accepted Ms. Weathers’ plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Appellant then filed the instant wrongful death action alleging that Odessa Gun & Pawn was liable under theories of negligence, negligence per se and negligent entrustment.”
http://cases.justia.com/missouri/supreme-court/2016-sc95013.pdf?ts=1459879307
At issue here was a federal law, “Protection of Lawful Commerce in Arms Act,” 15 U.S.C. section 7901, et seq., (PLCAA):
“The PLCAA provides that “[a] qualified civil liability action may not be brought in any Federal or State court.” 15 U.S.C. section 7902(a). All qualified civil liability actions “shall be immediately dismissed by the court in which the action was brought or is currently pending.” 15 U.S.C. section 7902 (b). The PLCAA defines a “qualified civil liability action” as “a civil action ... brought by any person against a ... seller of a qualified product ... for damages ... resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. section 7903(5)(A). A “qualified product” includes firearms and ammunition. 15 U.S.C. section 7903(4). Actions based on negligence per se, negligent entrustment, and knowing violations of state or federal statutes related to firearms are expressly excluded from definition of a “qualified civil liability action.” 15 U.S.C. section 7903(5)(A)(ii).
Despite the breadth and depth of this seeming, federal statutory, preclusion, the Missouri Supreme Court found a narrow path around it, using the federal statute language to preserve the widow’s state claim for negligent entrustment.
“The preemption of Appellant’s negligence action leaves open the issue of whether Appellant has a viable claim for negligent entrustment. The PLCAA provides that negligent entrustment actions are not preempted, 15 U.S.C. section 7903(5)(A)(ii). The statute does not, however, establish a cause of action for negligent entrustment. 15 U.S.C. section 7903(5)(C). Therefore, “a state-law claim may continue to be asserted, even if it is not denominated as a ‘negligent entrustment’ claim under state law, if it falls within the definition of a ‘negligent entrustment’ claim provided in” the PLCAA…The PLCAA defines non-preempted negligent entrustment actions as involving: the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. 15 U.S.C. section 7903(5)(B). Appellant’s negligent entrustment claim fits within the statutory definition. Appellant alleges that Respondents sold a gun to Ms. Weathers with knowledge that she would likely use the gun in a manner that would pose an unreasonable risk of physical harm to herself or others. The trial court concluded that Respondents were entitled to judgment because, even if Appellant’s claim is not preempted by the PLCAA, Missouri law does not recognize a cause of action for negligent entrustment against a seller. Missouri law defines the tort of negligent entrustment with reference to section 390 of the Restatement (Second) of Torts….Section 390 of the Restatement defines “negligent entrustment” as follows: One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
The Missouri Supreme Court concluded, after analyzing similar holdings from other states, that:
“Irrespective of what the claim is called, Missouri law authorizes claims that fit within the PLCAA’s definition of a non-preempted claim for “negligent entrustment.” Appellant alleges that Respondents supplied a firearm and ammunition to Ms. Weathers with knowledge that Ms. Weathers’ possession of a firearm posed an unreasonable risk of harm to herself and others due to her severe, ongoing mental illness. The fact that Respondents supplied the firearm to Ms. Weathers through a sale does not preclude Appellant’s negligent entrustment claim. The trial court erred in granting judgment in favor of Respondents on Appellant’s claim for negligent entrustment. This claim is not preempted by the PLCAA and is recognized by Missouri law.”
Accordingly the judgment on the negligent entrustment claims for the gun store sellers was reversed.
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