Bloxham v. Glock Inc., 2 CA-CV 2002-0012.

• Decision Date: 29 August 2002
• Docket Number: No. 2 CA-CV 2002-0012.,2 CA-CV 2002-0012.
• Citation: 203 Ariz. 271,53 P.3d 196
• Parties: Daniel BLOXHAM and Barbara Bloxham, husband and wife, individually and as surviving parents of James Bloxham, deceased; Diana Spalding, a single woman, individually and as surviving parent of Melisa Moniz, deceased, Plaintiffs/Appellants, v. GLOCK INC., a foreign corporation; Glock Ges m.b.H., a foreign corporation; McMann's Roadrunner, Inc., an Arizona corporation; Pat McMann and Joan McMann, husband and wife, Defendants/Appellees.
• Court: Arizona Court of Appeals

53 P.3d 196

203 Ariz. 271

Daniel BLOXHAM and Barbara Bloxham, husband and wife, individually and as surviving parents of James Bloxham, deceased; Diana Spalding, a single woman, individually and as surviving parent of Melisa Moniz, deceased, Plaintiffs/Appellants, v. GLOCK INC., a foreign corporation; Glock Ges m.b.H., a foreign corporation; McMann's Roadrunner, Inc., an Arizona corporation; Pat McMann and Joan McMann, husband and wife, Defendants/Appellees.

No. -0012.

Court of Appeals of Arizona, Division 2, Department A.

August 29, 2002.

Stompoly, Stroud & Glicksman, by Elliot Glicksman, Tucson, Law Office of Elisa Barnes, by Elisa Barnes, New York City, for plaintiffs/appellants.

Snell & Wilmer, L.L.P., by Timothy J. Casey and Martha E. Gibbs, Phoenix, Renzulli & Rutherford, L.L.P., by John F. Renzulli and Anthony M. Pisciotti, New York

City, for defendants/appellees, Glock Inc. and Glock Ges m.b.H.

Rusing & Lopez, P.L.L.C., by Michael J. Rusing and Sean E. Brearcliffe, Tucson, for defendants/appellees, McMann and McMann's Roadrunner, Inc.

OPINION

HOWARD, J.

¶ 1 Appellants Daniel Bloxham, Barbara Bloxham and Diana Spalding ("the Bloxhams"), sued appellees Glock Inc., Glock Ges m.b.H. ("Glock"), Pat McMann, Joan McMann, and McMann's Roadrunner Inc., ("the McManns") for negligence after a third party murdered the Bloxhams' son and Spalding's daughter ("the victims") with a handgun manufactured by Glock and sold at a gun show operated by the McManns. The trial court granted Glock's and the McManns' motions to dismiss the complaint for failure to state a claim, finding as a matter of law that there was no duty or proximate causation. Because the Bloxhams failed to allege facts justifying the court's imposing a duty on Glock and the McManns, we affirm the trial court's ruling.

¶ 2 On review of a motion to dismiss a complaint for failure to state a claim, we assume the allegations in the complaint are true. Linder v. Brown & Herrick, 189 Ariz. 398, 402, 943 P.2d 758, 762 (App.1997). Glock manufactured and sold a handgun to Centerfire, Inc., a retail outlet that sold handguns. Centerfire sold the gun to Stanley Woznicki, who had purchased over twenty handguns from Centerfire during the preceding twelve months. Woznicki frequently attended gun shows in Tucson operated by the McManns, and sold the Glock handgun to Kajornsak Prasertphong at a McMann gun show in Tucson in 1998.¹ In 1999, Prasertphong and another assailant used the gun to shoot and kill the victims.

¶ 3 In January 2001, the Bloxhams sued Glock and the McManns,² alleging they had been negligent and that such negligence was a cause of the victims' deaths because Glock had manufactured and distributed the handgun used in the killings but had failed "to impose distribution requirements," and because the McManns had failed to adequately screen gun sellers and buyers and regulate sales at their gun shows. Before answering the complaint, Glock and the McManns moved to dismiss it for failure to state a claim under Rule 12(b)(6), Ariz.R.Civ.P., 16 A.R.S., Pt. 1, claiming they had no duty to control the conduct of third parties or to protect the victims.

¶ 4 In response, the Bloxhams argued that Glock had breached a duty "to take reasonable and practical steps to control the distribution of [its] products so that Glock pistols were not sold to unlicensed dealers or at gun shows" and that this breach of duty had caused the victims' deaths. And the Bloxhams argued the McManns had breached their duty to "take reasonable and practical steps to prevent the prohibited transfer of the gun used in the shootings of [the victims] based on the foreseeable risks associated with their business and by their own voluntary assumption of a duty to prevent such foreseeable harm." The Bloxhams stated that the McManns had required that any guns taken to one of their shows be inspected to assure the guns were unloaded, that any person with a gun be asked not to sell it to anyone other than exhibitors with booths, and that anyone found violating this policy be warned once and then asked to leave. According to the Bloxhams, this policy was insufficient to prevent unlicensed sales of firearms at their shows. However, the Bloxhams did not allege the McManns knew or should have known that Woznicki may have been required to have a license or that either Glock or the McManns had committed any illegal act or had participated in the Woznicki-Prasertphong transaction.

¶ 5 After oral argument, the trial court granted Glock's and the McManns' motions,³ concluding the Bloxhams had failed to allege a valid negligence claim. According to the trial court, the Bloxhams' complaint failed to state the requisite element of duty because they had failed to allege and the court could not find there was "the special kind of relationship between either Glock or the McManns to control the action of Prasertphong or protect" the victims. Additionally, the court found that, regardless of duty, any alleged negligence "was not the proximate cause of Plaintiffs' injuries." The Bloxhams appeal the trial court's ruling.

¶ 6 We first decide whether the trial court erred in finding that the complaint failed to allege facts establishing a legal duty on Glock or the McManns. In an action for negligence, a plaintiff must show "the existence of duty, breach of that duty, causation, and damages." Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, ¶ 14, 24 P.3d 1274, ¶ 14 (App.2001). "The question of duty... is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). "The existence of duty is a threshold issue that is usually decided by the trial court as a matter of law, subject to our de novo review." Republic Nat'l Bank v. Pima County, 200 Ariz. 199, ¶ 11, 25 P.3d 1, ¶ 11 (App.2001). In the absence of a duty owed to the plaintiff, a defendant "cannot be liable for the plaintiff's injury even if the defendant acted negligently." Rudolph v. Arizona B.A.S.S. Fed'n, 182 Ariz. 622, 624, 898 P.2d 1000, 1002 (App.1995).

¶ 7 In Arizona, there is no duty to control the conduct of a third party unless "`(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the [plaintiff] which gives to the [plaintiff] a right of protection.'" Martinez v. Woodmar IV Condominiums Homeowners Ass'n, 189 Ariz. 206, 207-08, 941 P.2d 218, 219-20 (1997), quoting Martinez v. Woodmar IV Condominiums Ass'n, 187 Ariz. 408, 409, 930 P.2d 485, 486 (App.1996),

quoting Restatement (Second) of Torts § 315 (1965) (brackets added by supreme court); Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 265, 782 P.2d 739, 741 (App.1989). Therefore, a duty to control the conduct of a third party arises only when a special relationship exists between the defendant and the third party, such as "parent-child, master-servant, possessor of land-licensee, or guardian-ward." Fedie, 162 Ariz. at 265,

782 P.2d at 741; see also Restatement (Second) of Torts §§ 316-319. And a duty to protect arises only where there is a special relationship between the defendant and the victim, "such as carrier-passenger, innkeeper-guest, landlord-invitee, guardian-ward, teacher-student, or jailer-prisoner." Fedie, 162 Ariz. at 265,

782 P.2d at 741; see also Restatement (Second) of Torts §§ 314A, 320; Martinez.

¶ 8 Glock and the McManns argue the complaint fails to allege any special relationship between Glock and the McManns and either the murderers or the victims, and the Bloxhams do not argue otherwise. But the Bloxhams contend they in fact have stated a claim "sounding in negligence," arguing Glock and the McManns had a duty "to use reasonable care in marketing, distributing and facilitating the sale of" guns. The Bloxhams argue that Glock should have controlled its distributors and that the McManns should have controlled Woznicki and Prasertphong. The substance of each allegation is that Glock and the McManns should have controlled the conduct of a third party or protected the victims. Accordingly, to be viable, the Bloxhams' claim required the allegation of a special relationship between Glock and the McManns and a third party or between Glock and the McManns and the victims. See Restatement § 315; Martinez; Fedie. In the absence of a special relationship, which was not alleged here, there was no duty that can sustain a negligence claim. See Saucedo. "We do not understand the law to be that one owes a duty of reasonable care at all times to all people under all circumstances." Hafner v. Beck, 185 Ariz. 389, 391, 916 P.2d 1105, 1107 (App.1995).

¶ 9 Nevertheless, the Bloxhams argue we should follow a "totality of evidence" approach and impose a duty here, even in the absence of a special relationship. "Duty" essentially is "`an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" Ontiveros v. Borak, 136 Ariz. 500, 508, 667 P.2d 200, 208 (1983), quoting W. Prosser, Handbook on the Law of Torts § 42, at 324-27 (4th ed.1971). In the context of sales of firearms, one court, espousing a "Duty Equation," recently expressed the factors to consider in determining whether to impose a duty of care on firearms manufacturers:

Courts traditionally "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability."

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