Burns v. Sam, 012121 WYSC, S-20-0095

Docket Nº:S-20-0095
Opinion Judge:GRAY, JUSTICE
Party Name:DAVID JAMES BURNS and ROBIN BURNS, as Wrongful Death Personal Representatives of Tyler Burns, deceased; and THE ESTATE OF TYLER BURNS, deceased, Appellants (Plaintiffs), v. DORA SAM, ROGER DAVIS and PHILLIP SAM, Appellees (Defendants).
Attorney:Representing Appellants: Bernard Q. Phelan and Scott Mitchel Guthrie, Phelan and Guthrie Law Firm, Cheyenne, Wyoming. Argument by Mr. Phelan. Representing Appellee Dora Sam: L. Kathleen Chaney and Edward Duane Dillon, Lambdin & Chaney, LLP, Denver, Colorado. Argument by Mr. Dillon. Representing A...
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Case Date:January 21, 2021
Court:Supreme Court of Wyoming

2021 WY 10

DAVID JAMES BURNS and ROBIN BURNS, as Wrongful Death Personal Representatives of Tyler Burns, deceased; and THE ESTATE OF TYLER BURNS, deceased, Appellants (Plaintiffs),

v.

DORA SAM, ROGER DAVIS and PHILLIP SAM, Appellees (Defendants).

No. S-20-0095

Supreme Court of Wyoming

January 21, 2021

Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

Representing Appellants: Bernard Q. Phelan and Scott Mitchel Guthrie, Phelan and Guthrie Law Firm, Cheyenne, Wyoming. Argument by Mr. Phelan.

Representing Appellee Dora Sam: L. Kathleen Chaney and Edward Duane Dillon, Lambdin & Chaney, LLP, Denver, Colorado. Argument by Mr. Dillon.

Representing Appellee Roger Davis: Robert T. Moxley, Robert T. Moxley, PC, Cheyenne, Wyoming. Argument by Mr. Moxley.

Representing Appellee Phillip Sam: Phillip Sam, pro se. No appearance.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, JUSTICE

[¶1] David James Burns and Robin Burns, as personal representatives of Tyler Burns, and the Estate of Tyler Burns (collectively, the Burnses) brought this wrongful death action. Tyler Burns was shot by Phillip Sam and died. The Burnses alleged Mr. Sam's mother, Dora Sam, and her boyfriend, Roger Davis, negligently stored the semiautomatic handgun, stolen by Phillip Sam and then used to kill Tyler Burns. Finding no common law duty, the district court granted summary judgment to Ms. Sam and Mr. Davis. The Burnses appeal. We affirm.

ISSUE

[¶2] The dispositive issue is whether Ms. Sam or Mr. Davis owe a common law duty to Tyler Burns, who was killed by a gun stolen from their home.1

FACTS

[¶3] The underlying facts are set forth in detail in Sam v. State, 2017 WY 98, ¶ 8, 401 P.3d 834, 842 (Wyo. 2017) (Sam I), and Sam v. State, 2019 WY 104, ¶ 3, 450 P.3d 217, 218-19 (Wyo. 2019) (Sam II). We briefly summarize them here. In October 2014, sixteen-year-old Phillip Sam took an unsecured .40 caliber semi-automatic handgun and ammunition from his mother's home, where she resided with Mr. Davis. Mr. Davis owned the handgun. The gun was located in the master bedroom closet in an unlocked gun case next to boxes of ammunition. Mr. Davis and Ms. Sam were away when Mr. Sam, who was, at that time, living with his father, entered the home to retrieve his work uniform. While there, he removed the gun from the bedroom closet, placed it in his backpack, and left.

[¶4] Mr. Sam used the gun to shoot into a crowd, wounding Tyler Burns, and then shot and killed him from point blank range.

Sam II, ¶ 3, 450 P.3d at 218-19. Mr. Sam was convicted of twelve counts of aggravated assault and one count of first-degree murder. Those convictions were affirmed in Sam I.

[¶5] In 2016, the Burnses filed a complaint against Ms. Sam, Mr. Davis, and Mr. Sam. Their claims of wrongful death, personal injury not causing death, and negligent infliction of emotional distress against Ms. Sam and Mr. Davis arise from the alleged negligent storage of the handgun Mr. Sam used to kill Mr. Burns. Their claims against Mr. Sam-wrongful death, personal injury not causing death, and intentional infliction of emotional distress-stem from his actions.

[¶6] Ms. Sam filed a motion for summary judgment asserting she owed no duty of care to Mr. Burns for the secure storage of the firearm; her alleged negligence was not the proximate cause of Mr. Burns's injuries; the Burnses could not maintain both survivor and wrongful death claims; and that the Burnses were not entitled to punitive damages. The district court expressed doubt concerning the Burnses' ability to maintain both survivor and wrongful death claims but did not rule on the question. The district court concluded that Ms. Sam and Mr. Davis owed no duty of care to Mr. Burns under the circumstances and granted Ms. Sam's motion for summary judgment. Thereafter, the district court issued an order pursuant to W.R.C.P. 54 certifying there was no just cause for delay in the entry of an appealable order and entered a final judgment. The Burnses appeal.2

STANDARD OF REVIEW

[¶7] Our standard of review for summary judgment is well known: This Court reviews the district court's order granting summary judgment de novo and may affirm a summary judgment on any legal grounds appearing in the record. Bear Peak Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 10, 403 P.3d 1033, 1040 (Wyo. 2017); Int'l Assoc. of Fire Fighters Local Union No. 5058 v. Gillette/Wright/Campbell Cnty. Fire Prot. Joint Powers Bd., 2018 WY 75, ¶ 19, 421 P.3d 1059, 1064 (Wyo. 2018).

[W]e review a summary judgment in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties.

Sullivan v. Pike and Susan Sullivan Found., 2018 WY 19, ¶ 15, 412 P.3d 306, 310 (Wyo. 2018) (quoting Rogers v. Wright, 2016 WY 10, ¶ 7, 366 P.3d 1264, 1269 (Wyo. 2016)) (other citations omitted). "The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment." Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 13 (Wyo. 2006). When the moving party does not have the ultimate burden of persuasion, it establishes a prima facie case for summary judgment by showing a lack of evidence on an essential element of the opposing party's claim. See, e.g., Rammell v. Mountainaire Animal Clinic, P.C., 2019 WY 53, ¶¶ 27-28, 442 P.3d 41, 49 (Wyo. 2019) (defendant presented evidence showing plaintiff could not establish the elements of tortious interference with contract); Mantle v. N. Star Energy & Constr. LLC, 2019 WY 29, ¶ 116, 437 P.3d 758, 796 (Wyo. 2019) (defendant presented evidence showing plaintiff could not establish transfers were fraudulent).

Once the summary judgment movant establishes a prima facie case for summary judgment, the burden shifts to the opposing party to present materials demonstrating a genuine dispute as to a material fact for trial. Hatton, ¶ 9, 148 P.3d at 12-13. "'The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment[.]'" Jones v. Schabron, 2005 WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005) (quoting Downen v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo. 1994)). The evidence presented in a summary judgment proceeding must be admissible and competent. Id.; Rule 56(c)(2).

Warwick v. Accessible Space, Inc., 2019 WY 89, ¶¶ 9-11, 448 P.3d 206, 210-11 (Wyo. 2019).

DISCUSSION

I. Did Ms. Sam or Mr. Davis owe a common law duty to Tyler Burns, who was killed by a gun stolen from their home?

[¶8] To establish negligence, a plaintiff must prove "(1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages." Dimick v. Hopkinson, 2018 WY 82, ¶ 27, 422 P.3d 512, 521 (Wyo. 2018) (quoting RB, Jr. by & through Brown v. Big Horn Cnty. Sch. Dist. No. 3, 2017 WY 13, ¶ 13, 388 P.3d 542, 546-47 (Wyo. 2017)).

[¶9] The district court granted summary judgment to Ms. Sam. It concluded, "No material questions of fact exist that justify a finding that Defendant Dora Sam and Defendant Roger Davis owed a duty to Tyler Burns as either a homeowner or a parent simply because one of them owned a gun and that gun was stored in the home Defendants occupied." The Burnses contend that Wyoming imposes a common law duty to securely store a handgun and a common law duty for a parent to control her child when she knows the child has a propensity toward violence.

A. Wyoming Law

[¶10] Generally, "[t]he existence of duty is a question of law." Warwick, ¶ 12, 448 P.3d at 211 (quoting Erpelding v. Lisek, 2003 WY 80, ¶ 13, 71 P.3d 754, 757 (Wyo. 2003)). "However, in certain cases, the existence of a duty depends upon the determination of basic facts and the determination of those facts may be properly placed before the trier of fact." Johnson v. Dale C. and Helen W. Johnson Fam. Revocable Tr., 2015 WY 42, ¶ 17, 345 P.3d 883, 887 n.1 (citing Valance v. VI-Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d 697, 701 (Wyo. 2002)).

[¶11] We have said: A duty exists where, 'upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other-or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.'

Daniels v. Carpenter, 2003 WY 11, ¶ 21, 62 P.3d 555, 563 (Wyo. 2003) (quoting Duncan v. Afton, Inc., 991 P.2d 739, 742 (Wyo. 1999) (quoting W. Page Keeton, Prosser and Keeton on the Law of Torts § 37, at 236 (5th ed. 1984))). A "duty of reasonable care exists to avoid injury to another person where it 'could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.'" Daniels, ¶ 21, 62 P.3d at 563 (citations omitted).

[¶12] Determining whether a duty exists involves a balancing of certain factors: (1) the foreseeability of harm to the plaintiff,

(2) the closeness of the connection between the defendant's conduct and the injury suffered,

(3) the degree of certainty that the plaintiff suffered injury,

(4) the moral blame attached to the defendant's conduct,

(5) the policy of preventing future harm,

(6) the extent of...

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