Delana v. CED Sales, Inc.

• Citation: 486 S.W.3d 316
• Decision Date: 05 April 2016
• Docket Number: No. SC 95013,SC 95013
• Parties: Janet S. Delana, individually, and as the Wife of Decedent Tex C. Delana, Appellant, v. CED Sales, Inc., d/b/a Odessa Gun & Pawn, Charles Doleshal, and Derrick Dady, Respondents.
• Court: United States State Supreme Court of Missouri

486 S.W.3d 316

Janet S. Delana, individually, and as the Wife of Decedent Tex C. Delana, Appellant,

v.CED Sales, Inc., d/b/a Odessa Gun & Pawn, Charles Doleshal, and Derrick Dady, Respondents.

No. SC 95013

Supreme Court of Missouri, en banc .

Opinion issued April 5, 2016

Rehearing Denied May 24, 2016

Delana was represented by Jonathan E. Lowy and Alla Lefkowitz of the Brady Center to Prevent Gun Violence in Washington, D.C., (202) 370–8105; L. Annette Griggs and David L. McCollum of McCollum & Griggs LLC in North Kansas City, (816) 474–0202; and Jane Francis of the Law Office of Jane Francis LLC in Kansas City, (816) 436–3100.

The pawn shop, its owner and its manager were represented by Derek H. Mackay and David R. Buchanan of Brown & James PC in Kansas City, (816) 472–0800; Patrick A. Bousquet of Brown & James PC in St. Louis, (314) 421–3400; and Kevin L. Jamison of Kevin L. Jamison Law in Gladsone, (816) 455–2669.

The United States of America, which intervened in the case, was represented by Charles M. Thomas of the United States attorney's office in Kansas City.

A number of organizations filed briefs as friends of the Court. The National Coalition Against Domestic Violence, The National Domestic Violence Hotline, The National Indigenous Women's Resource Center and the National Latina @Network: Casa de Esperanza were represented by Daniel L. Allen of Bautista Allen LLC in Kansas City, (816) 221-0382. The Major City Chiefs Association was represented by David R. Borantz of Shamberg, Johnson & Bergman CHTD in Kansas City, (816) 474-0004; and Thomas H. Zellerbach and Alexis Yee-Garcia of Orrick, Herrington & Sutcliffe LLP in Menlo Park, California, (650) 614-7400. The National Shooting Sports Foundation Inc. was represented by Peter B. Hoffman of Baker Sterchi Cowden & Rice LLC in St. Louis, (314) 231-2925; and Craig A. Livingston and Crystal L. Van Der Putten of the Livingston Law Firm PC in Walnut Creek, California, (925) 952-9880.

Richard B. Teitelman

, Judge

Janet Delana (Appellant) filed suit against CED Sales Inc. d/b/a Odessa Gun & Pawn, Charles Doleshal, Brett Doleshal,¹ and Derrick Dady (Respondents) alleging claims for negligence, negligent entrustment, and negligence per se.² Appellant alleged that Respondents negligently sold or entrusted a gun to Appellant's mentally ill daughter, who then used the gun to kill Appellant's husband. The circuit court entered summary judgment in favor of Respondents. The court determined that Appellant's negligence claim was preempted by the Protection of Lawful Commerce in Arms Act, 15 U.S.C. section 7901, et seq .,

(PLCAA); that Appellant's negligent entrustment claim failed to state a claim under Missouri law; and, therefore, that Appellant's individual claims against Mr. Doleshal and Mr. Dady were moot. The judgment is reversed to the extent it precludes Appellant from proceeding with her negligent entrustment claim. The judgment is affirmed in all other respects, and the case is remanded.³

I. Background

Viewed in the light most favorable to Appellant as the non-moving party, the record indicates that on 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. Appellant alleged that Mr. Doleshal was individually liable because he was a principal of CED Sales Inc. and controlled the corporation to such an extent that the corporation was an “alter ego” of Mr. Doleshal. Appellant also alleged that Mr. Dady was individually liable.

Mr. Dady testified that he had “a little bit” of training regarding gun sales. Mr. Doleshal testified that this training included instructing his employees to never deny a sale to someone who, like Ms. Weathers, passed the required background check. The record also indicates that prior to the sale, Mr. Dady recognized Ms. Weathers from when she had purchased a gun the previous month. Mr. Dady also recalled that Ms. Weathers appeared “a little nervous and in a hurry.” Ms. Weathers later testified that she had heard “overwhelming” voices that “inundated her, telling her strongly that she ... needed to kill herself.” Medical evaluations indicated that Ms. Weathers' severe mental illness would have been apparent to Mr. Dady.

Respondents moved for summary judgment on grounds that the PLCAA preempted Appellant's claims. Appellant argued that the PLCAA did not preempt her claims and, alternatively, that if the PLCAA does preempt her claims, the statute is unconstitutional. The United States of America intervened for the purpose of defending the constitutional validity of the PLCAA.

The trial court entered summary judgment for Respondents on the negligence and negligent entrustment claims. The court held that the PLCAA preempted Appellant's negligence claim and that the statute was constitutional. The court also determined that although the PLCAA provides an exception for negligent entrustment actions, Missouri law does not recognize a cause of action for negligent entrustment against sellers. This appeal followed.

II. Standard of Review

A summary judgment will be affirmed on appeal when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993)

. The Court reviews the record in the light most favorable to the non-movant and affords that party the benefit of all reasonable inferences from the record. Id. at 376. Appellant's argument that the PLCAA is unconstitutional raises legal issues subject to de novo review. Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319, 327 (Mo. banc 2015).

III. The PLCAA Preempts Appellant's Negligence Claim

Appellant asserts that the trial court erred by entering judgment for Respondents on grounds that the PLCAA preempts state law negligence actions against firearms sellers. Appellant's negligence claim is preempted by the PLCAA. The trial court did not err by entering judgment in favor of Respondents on Appellant's negligence claim.

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).⁴ The net result of the foregoing provisions is that the PLCAA expressly preempts all civil actions seeking damages against sellers resulting from the criminal or unlawful misuse of a firearm. Noble v. Shawnee Gun Shop, Inc ., 409 S.W.3d 476, 479 (Mo.App.2013).

Appellant's negligence claim is based on her allegation that Respondents had a “heightened duty of care” with respect to the sale of “lethal instrumentalities.” Appellant alleged that the “[b]reach of this duty is negligence” and that Mr. Delana's death resulted from Respondents' negligence. Appellant's negligence claim, there, is a “qualified civil liability action” subject to immediate dismissal pursuant to section 7902(b) of the PLCAA. The specific exceptions for negligent entrustment and negligence per se confirm that the PLCAA preempts common law state tort actions, like Appellant's negligence claim, that do not fall within a statutory exception. Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 386 (Alaska 2013)

(“reading a general negligence exception into the statute would make the negligence per se and negligent entrustment exceptions a surplusage”); Phillips v. Lucky Gunner,

LLC , 84 F.Supp.3d 1216, 1226 (D.Colo.2015) ; Jefferies v. District of Columbia, 916 F.Supp.2d 42, 47 (D.D.C.2013) (the PLCAA “unequivocally” bars ordinary negligence claims); Ileto v.

G

lock, Inc., 565 F.3d 1126, 1135 (9th Cir.2009) (the PLCAA preempts “general tort theories of...