Bernethy v. Walt Failor's, Inc.

• Decision Date: 04 November 1982
• Docket Number: No. 48236-5,48236-5
• Citation: 97 Wn.2d 929,653 P.2d 280
• Parties: Carolee BERNETHY, Personal Representative of the Estate of Phoebe R. Fleming, Deceased; and as Guardian ad Litem for Daniel L. Sassaman, Debra L. Sassaman and Christie A. Fleming, all minors, Appellant, v. WALT FAILOR'S, INC., a Washington corporation; Walter Failor and Hazel Failor, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 929

97 Wn.2d 929

653 P.2d 280

Carolee BERNETHY, Personal Representative of the Estate of Phoebe R. Fleming, Deceased; and as Guardian ad Litem for Daniel L. Sassaman, Debra L. Sassaman and Christie A Fleming, all minors, Appellant, v. WALT FAILOR'S, INC., a Washington corporation; Walter Failor and Hazel Failor, husband and wife, Respondents.

No. 48236-5.

Supreme Court of Washington,

En Banc.

Nov. 4, 1982.

Stritmatter & Stritmatter, Paul L. Stritmatter, Hoquiam, for appellant.

Charette, Schumacher, Brown, Edwards & Lewis, Thomas A. Brown, Aberdeen, for respondents.

DIMMICK, Justice.

Appellant, personal representative of the estate of Phoebe Fleming, commenced this wrongful death action against respondents, owners of a gun shop, for the benefit of decedent's three minor children. The trial court granted respondents' motion for summary judgment and entered an order dismissing the action. Appellant appealed to the Court of Appeals and that court certified the following question to us:

Did the trial court err in granting respondents' motion for summary judgment dismissing this wrongful death action, brought on the theory that respondents had negligently furnished a firearm to an intoxicated person who then shot and killed appellant's decedent?

We conclude that the court did err and we remand this matter for trial.

Robert Fleming shot and killed his estranged wife, Phoebe, on August 11, 1978. The events preceding such action give rise to the instant case.

On August 10, at 6:30 p.m., Robert Fleming began drinking whiskey and continued until the bar closed. He then went home and consumed a 6-pack of beer. At 5:15 a.m. on August 11 he drove into town and began drinking again. He drank continuously until about 6:30 p.m. except for an hour when he had passed out. A woman with him at the bar declared that there was no question that Fleming was intoxicated.

Fleming left his wife and friends at the bar at about 6:30 p.m. and walked to Walt Failor's gun shop. Walt Failor, owner of the shop, was working as a salesperson. When Fleming entered the store he asked to see a 30.30 rifle for his son. According to Failor the customer displayed no symptoms of intoxication except a slight odor of alcohol. Another customer in the store stated in an affidavit that he saw no evidence that Fleming was drunk. Fleming's affidavit, however, indicates that he remembers wetting his pants before entering the store, falling and staggering as he walked into the store and having to rest his arms on the counter to support himself.

After inspecting the rifle Fleming agreed to buy it and handed Failor a credit card. Failor laid the gun and shells on the counter next to Fleming. Failor began to fill out the necessary firearms transaction record and then turned to check Fleming's credit by phone when Fleming picked up the gun and ammunition and walked out. Failor followed him requesting payment. Fleming told him to leave and threatened him with the gun. Failor followed Fleming to the tavern where the killing took place. Fleming's blood alcohol was .23 percent when he was arrested immediately after the shooting.

A cause of action founded in negligence requires that a plaintiff establish that:

(1) there is a statutory or common-law rule that imposes a duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant's conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff.

Rikstad v. Holmberg, 76 Wash.2d 265, 268, 456 P.2d 355 (1969). Accord, Hansen v. Washington Natural Gas Co., 95 Wash.2d 773, 776, 632 P.2d 504 (1981).

Respondents urge, as a matter of law, that they owed no duty to Phoebe Fleming, and if they did, that duty was not violated. Finally, they argue that the alleged breach was not the proximate cause of her death. The trial court in dismissing the action did not specify the basis for its decision. Accordingly, we must discuss all of respondents' contentions in reviewing the trial court's order. In doing so we are mindful of the well established rule that a court must consider the material evidence and all reasonable inferences therefrom in favor of the nonmoving party in ruling on a motion for summary judgment. If reasonable persons might reach a different conclusion, the motion should be denied. Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 256-57, 616 P.2d 644 (1980); Millikan v. Board of Directors, 93 Wash.2d 522, 532, 611 P.2d 414 (1980).

Duty may be predicated on violation of a statute or common law principles of negligence. Washington does not have a statute specifically prohibiting the sale of rifles to intoxicated persons. It is illegal, however, to deliver a pistol to certain incompetent persons. RCW 9.41.080 provides:

No person shall deliver a pistol to any person under the age of twenty-one or to one who he has reasonable cause to believe has been convicted of a crime of violence, or is a drug addict, an habitual drunkard, or of unsound mind.

This statute, at a minimum, reflects a strong public policy in our state that certain people should not be provided with dangerous weapons.

Common law principles of negligence provide that duty is a question addressed to the court. In deciding questions of duty we evaluate public policy considerations. See Wells v. Vancouver, 77 Wash.2d 800, 809-10, 467 P.2d 292 (1970) (Finley, J., concurring), quoted in Haslund v. Seattle, 86 Wash.2d 607, 612 n. 2, 547 P.2d 1221 (1976); W. Prosser, Torts § 53, at 325-26 (4th ed. 1971). Once this initial determination of legal duty is made, the jury's function is to decide the foreseeable range of danger thus limiting the scope of that duty. See Rikstad v. Holmberg, supra; Wells v. Vancouver, supra.

In weighing the policy considerations, we hold that the duty owed by respondent is best summarized by Restatement (Second) of Torts § 390 (1965), which we now adopt:

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 basis for our imposing this general duty is that one should not furnish a dangerous instrumentality such as a gun to an incompetent. Most of the case law relates to gun sales to children, see Annot., 4 A.L.R.4th 331 (1981), or entrusting an automobile to an intoxicated person. The principle of section 390, however, applies equally well to one who is incompetent due to intoxication. See Holzer, Liability to the Injured Third Party for Negligent Entrustment of a Firearm, 59 Chi.B.Rec. 346 (1978). Additionally, we have previously recognized the...