Elkins v. Acad. I, LP
| Decision Date | 21 September 2021 |
| Docket Number | No. SD 36947,SD 36947 |
| Citation | 633 S.W.3d 529 |
| Parties | Deborah ELKINS, Russell Hampton, and Sydney Crosby as next friend of O.H., a minor, Appellants, v. ACADEMY I, LP, John Doe, and Nyadia Burden, Respondents. |
| Court | Missouri Court of Appeals |
Appellants’ attorneys: Craig R. Heidemann, Donald M. Brown, and Nickolas W. Allen of Bolivar, MO.
Respondent's attorneys: Bryon A. Bowles, Jr., and Alan T. Fogleman of Kansas City, KS, and John F. Renzulli (Pro hac vice) and Scott C. Allan (Pro hac vice) of White Plains, NY.
Appellants allege error in the court's dismissal of their lawsuit against Academy I, LP, doing business as Academy Sports + Outdoors ("Academy"), and its unknown employee, John Doe. Appellants contend they sufficiently pleaded claims for negligent entrustment and negligence per se, which are not preempted or precluded by the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq. (2018) ("PLCAA"). We affirm because Appellants have not satisfied their burden to show Congress intended federal firearms and ammunition statutes to create a duty enforceable in a private cause of action for negligence per se, and Appellants failed to allege facts that, if proven true, would warrant relief on a negligent entrustment claim.
Luis Perez and Nyadia Burden went to an Academy store to purchase ammunition for the purpose of killing Aaron Josh Hampton. Perez selected a box of 9mm ammunition and gave it to Burden along with cash. They walked to the front of the store, where Burden paid John Doe for the ammunition while Perez paced nearby.
A few hours later, Perez intentionally shot Hampton more than 20 times, killing him. Perez used a 9mm handgun loaded with the ammunition purchased from Academy. He was not a US citizen and was residing here illegally.
Hampton's family sued Academy and John Doe on negligent entrustment and negligence per se theories. Academy moved to dismiss Appellants’ first amended petition as prohibited by the PLCAA and for failure to state a claim upon which relief can be granted, Rule 55.27(a)(6).2
The court granted Academy's motion, found the claims against Academy and John Doe were a distinct judicial unit from a pending negligence claim against Burden,3 and determined there was no just reason to delay entry of final judgment on the claims against Academy and John Doe pursuant to Rule 74.01(b). This appeal followed.
Before addressing the merits of this appeal, we must determine whether we have jurisdiction. Wilson v. City of St. Louis , 600 S.W.3d 763, 765 (Mo. banc 2020). " ‘The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.’ " Id. at 767 (quoting First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass'n, Inc. , 515 S.W.3d 219, 221 ). Appellants bring this appeal pursuant to the general appeal statute, § 512.020(5) RSMo. as updated through 2020, which provides that final judgments are appealable.
The judgment in this case is not final in the sense that it resolves all claims by and against all parties, leaving nothing for future determination. Id. at 768. It is deemed to be final, however, because it has been certified for immediate appeal pursuant to Rule 74.01(b) and it disposes of a judicial unit. Id. at 769-71. The judgment here satisfies both of the Supreme Court's definitions of a "judicial unit" in that it disposes of all claims by Appellants against Academy and John Doe, and the remaining claim against Burden is sufficiently distinct from the dismissed claims. See id. at 771-72.
We find that the circuit court did not abuse its discretion in certifying its judgment under Rule 74.01(b) and that we have jurisdiction to hear this appeal. E.M. by and through McInnis v. Gateway Region Young Men's Christian Ass'n , 613 S.W.3d 388, 395 (Mo. App. 2020).
We review de novo a circuit court's grant of a motion to dismiss. Lang v. Goldsworthy , 470 S.W.3d 748, 750 (Mo. banc 2015). We will affirm if the motion can be sustained on any of the grounds raised in the motion to dismiss. Id.
"A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition." Mitchell , 596 S.W.3d at 122 (). "In order to withstand the motion to dismiss, the petition must invoke substantive principles of law entitling plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial." Grosshart v. Kansas City Power & Light Co. , 623 S.W.3d 160, 166 (Mo. App. 2021) (quoting Hill v. Freedman , 608 S.W.3d 650, 654 (Mo. App. 2020), internal quotation marks omitted). "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Id.
Federal laws regulate the sale of firearms and ammunition and provide penalties for violations. In relevant part, 18 U.S.C. § 922(g) (2018) provides: "It shall be unlawful for any person ... who, being an alien ... is illegally or unlawfully in the United States ... to ... possess ... any firearm or ammunition; or to receive any firearm or ammunition...." Similarly, 18 U.S.C. § 922(d) (2018) provides criminal liability for suppliers: "It shall be unlawful for any person to sell ... ammunition to any person knowing or having reasonable cause to believe that such person ... who, being an alien ... is illegally or unlawfully in the United States ...."
The PLCAA limits civil actions that may be brought against sellers4 of firearms and ammunition.5 "[T]he PLCAA expressly and unambiguously preempts state tort law, subject to the enumerated exceptions." Delana v. CED Sales, Inc. , 486 S.W.3d 316, 323 (Mo. banc 2016). Our Supreme Court explained:
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). 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.
Id. at 320–21 (internal quotation marks omitted) (footnote omitted).
"[N]egligent entrustment occurs when the defendant supplies a chattel to another with actual or constructive knowledge that, because of youth, inexperience or otherwise, the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm." Id. at 325 (internal quotation marks omitted). To make a prima facie case of negligent entrustment, a plaintiff must prove the following elements:
(1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the entrustor knew or had reason to know of the entrustee's incompetence; (3) there was entrustment of the chattel; and (4) the negligence of the entrustor concurred with the conduct of the entrustee to cause the plaintiff's injuries.
Matysyuk v. Pantyukhin , 595 S.W.3d 543, 549 (Mo. App. 2020). The PLCAA defines "negligent entrustment" similarly. See 15 U.S.C. § 7903(5)(B) (2018). Thus, a properly pleaded negligent entrustment claim against a seller of firearms (or in this case ammunition) is recognized in Missouri common law and falls within the exceptions to PLCAA preemption. Delana , 486 S.W.3d at 324-26.
The first issue is whether Appellants sufficiently alleged entrustment. They do not claim Academy transferred physical possession of the ammunition to Perez. Rather, they allege Academy had actual or constructive knowledge that Burden was purchasing the ammunition for Perez because he selected it from the shelf, handed it to Burden along with cash, accompanied her to the cash register, and paced nearby while she completed the transaction.6 "[W]hile Delana may have altered the scope of the negligent entrustment tort, it did not eliminate the fundamental requirement that the defendant must have ‘supplied’ a chattel to a third party who causes injury with the chattel." Lockhart v. Carlyle , 585 S.W.3d 310, 316 (Mo. App. 2019). We are skeptical that the circumstances here amount to Academy's entrustment or supply of ammunition to Perez. However, we need not decide that issue because Appellants’ pleadings suffer from other deficiencies.
Proof of incompetence is essential to establish liability under a negligent entrustment theory. Matysyuk , 595 S.W.3d at 549. Appellants alleged 18 U.S.C. § 922(d) and (g) (2018) prohibit the sale of ammunition to Perez, thus rendering him otherwise incompetent to purchase the ammunition. Based on this alleged incompetency, Appellants then had to allege how Academy knew or had reason to know of Perez's status as a non-citizen residing in the U.S. illegally or unlawfully. This is where their pleadings fail, because they again fall back on the same facts they pleaded to establish Perez was the true purchaser, not Burden. These facts, even if taken as true, say nothing about Perez's citizenship or if he is in the U.S. lawfully.
This case differs significantly from the facts...
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