Estate of Pemberton v. John's Sports Center, 94,583.

CourtCourt of Appeals of Kansas
Writing for the CourtGreen
Citation135 P.3d 174
PartiesThe ESTATE OF Joshua C. PEMBERTON, and Jay Pemberton and Susan Pemberton, Appellants, v. JOHN'S SPORTS CENTER, INC., Appellee.
Docket NumberNo. 94,583.,94,583.
Decision Date02 June 2006
135 P.3d 174
The ESTATE OF Joshua C. PEMBERTON, and Jay Pemberton and Susan Pemberton, Appellants,
No. 94,583.
Court of Appeals of Kansas.
June 2, 2006.

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Toby Egan and Patrick M. Cuezze, of Egan and Cuezze L.L.C., of Kansas City, Missouri, for appellants.

Steve R. Fabert and Larry G. Pepperdine, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.



The decedent, Joshua C. Pemberton (Josh), shot and killed himself with a shotgun purchased from John's Sports Center, Inc. (JSC). Josh's parents, Jay and Susan Pemberton, both as personal representatives of Josh's estate and in their own capacity (collectively, the Pembertons) sued JSC. JSC moved for summary judgment, which the trial court granted. On appeal, the Pembertons contend that the trial court erred in determining that 18 U.S.C. § 922(d) (2000), the federal firearms statute, had not been violated by JSC and that the evidence was sufficient to establish that JSC had negligently entrusted a shotgun to the decedent. We disagree and affirm the judgment of the trial court.

On July 15, 2002, Josh was found shot to death at about 1:30 p.m. in a parking lot in rural Crawford County, Kansas. Investigating officers concluded that Josh shot himself with a shotgun. Josh had purchased the shotgun from JSC shortly after 9 a.m. the day of his death. Josh was 22 years old.

After graduating from high school, Josh enrolled at Pittsburg State University. While in college, Josh worked as a counselor at Elm Acres, a center for teenagers with substance abuse problems. On Monday, July 15, 2002, Josh was fired from his job at Elm Acres at approximately 8:15 a.m.

At approximately 9 a.m. that day, Josh entered JSC in Pittsburg. Two clerks were working at that time: Brant Duncan and Rod

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Pulliam. Neither Duncan nor Pulliam had ever met Josh before. Josh told Duncan that his friends wanted to take him hunting and that he wanted to buy a shotgun. Duncan showed Josh several different models, and Josh selected one to purchase.

Duncan provided Josh with the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF) form 4473 to complete and watched Josh complete the form. Question 12(f) of the form asked: "Have you ever been adjudicated mentally defective (which includes have been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental institution?" Josh initially wrote "Yes" in response to this question. Question 13 of the form asked: "If you are a nonimmigrant alien, do you fall within any of the exceptions set forth in Important Notice 6, Exception 2?" Josh answered this question "No."

When Duncan reviewed the form, he noticed Josh's answers to questions 12(f) and 13. Duncan asked Josh if he understood question 12(f) and underlined the terms "committed" and "mental institution" on the form. Thereafter, Josh crossed out the word "Yes," wrote "No," and initialed his change. Josh also changed his answer to question 13 by crossing out the "No" and checking the box labeled "Not applicable."

After Josh completed the ATF form, Duncan called the NICS Division of the Federal Bureau of Investigation. NICS told Duncan that the sale could proceed. Pulliam then reviewed the form and approved it. The transaction was then completed, and Josh left with the shotgun.

Duncan testified in his deposition that he did not see any unusual behavior or nervousness on the part of Josh during the sale. Moreover, Duncan testified that he was comfortable with the transaction. Likewise, Pulliam testified in his deposition that he did not see Josh acting oddly while in the store.

After the transaction, however, Pulliam developed a "hunch" that Josh had "other motives" for buying the gun. According to Pulliam, this hunch was not based upon Josh's behavior while in the store or anything Duncan said. Approximately 1 hour after the transaction, Pulliam called Josh and left a message stating that a discrepancy existed with the gun's serial number. Pulliam asked Josh to bring the gun back to the store so they could verify the gun's serial number. Pulliam admitted that there was no problem with the serial number. Josh called back and told Pulliam that he had a class to attend and that he would bring the gun back as soon as class was over. In the afternoon, Duncan called and left a message on Josh's answering machine because Josh had not returned to the store. Pulliam also called Josh later when Josh did not return to the store, and Pulliam left another message on the answering machine.

At approximately 1:30 p.m., the Crawford County Sheriff's Department received information that a body had been found in a car in a rural area near a restaurant. Josh was found in the driver's seat of the car holding the barrel of the shotgun in his right hand. A cord had been tied to the shotgun's trigger and then wrapped around the car's accelerator pedal. The officer opined that Josh had sat in the driver's seat, put the shotgun in his mouth, and stepped on the accelerator, causing the cord to pull the shotgun's trigger. There also was a bullet hole in the driver's seat of the car, about chest high, and the back window of the car was shattered. The officer opined that Josh had fired a test shot through the seat and out the back window before he shot himself. The coroner determined that Josh's blood alcohol concentration was .09. There were four suicide notes on the floor of the car.

Both the investigating officer and Josh's father, a physician, testified that Josh died instantly from the gunshot wound to his head.

Several days after Josh's death, Pulliam told an investigating police officer that at some point during the sale Josh was anxious or nervous. Pulliam described Josh's conduct as similar to someone who was late for work or for class. Pulliam also told the officer that he had tried to talk Josh into coming back into the store because Pulliam had a bad feeling. Pulliam told the officer that he simply wanted to get another look at Josh.

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During discovery, it was disclosed that Josh had a long history of mental illness. Josh was diagnosed as having "extreme sibling rivalry" as a 4-year-old child. Josh's parents took him to a psychologist when he was in elementary school, and he was diagnosed with an "overanxious disorder." Josh was seen by the psychologist for 2 or 3 years.

When Josh was a freshman in high school, Josh's parents noticed that his behavior was sullen and depressive. They took Josh to see another psychologist. This psychologist treated Josh until sometime during his junior year in high school. During this time, Josh was prescribed antidepressants.

When Josh was a sophomore in high school, Josh's mother found Josh in the bathroom with a knife. Josh was making superficial cuts on his wrist with the knife. The Pembertons voluntarily admitted Josh to the Research Psychiatric Hospital in Kansas City, where he remained for 2 or 3 weeks. No court action was involved in this admission. Josh was diagnosed as depressed and bipolar.

Approximately 1 month after this incident, the Pembertons found Josh hallucinating. In addition, they found a suicide note he had written. The Pembertons again had Josh admitted to the Research Psychiatric Hospital. It was determined that Josh had overdosed on Benadryl, an over-the-counter medication. He was hospitalized for about 2 weeks. Thereafter, Josh continued to see a psychologist and participated in a voluntary outpatient program through the hospital.

Approximately 5 months after his discharge, Josh took approximately 100 Benadryl pills and then called his mother to say good-bye. Josh's parents called police, who located Josh unconscious in his car. After receiving medical treatment for the overdose, Josh was taken by his parents to Menninger's for a long-term treatment program. He remained at Menninger's for 3 months. Again, the Pembertons had Josh admitted voluntarily, thus avoiding a court proceeding to secure treatment for Josh. Josh finished his sophomore year of high school at Menninger's.

Halfway through his junior year of high school, Josh moved into an adult residential living center in Olathe and transferred to a high school there. The facility was for older teenagers who were having mental problems. Josh returned home in January of his senior year in high school and finished high school.

Josh became depressed again during the fall of his freshman year at Pittsburg State. On October 7, 1998, he climbed to the top of a water tower in Pittsburg and threatened to jump. Police talked him down, took him into custody, and called his parents. The police gave Josh the option of going with his parents or being sent to Larned State Hospital. The Pembertons took him to the Research Psychiatric Hospital. Josh was 18 years old and consented to being admitted voluntarily there. There was no court order requiring his admission. Josh remained at the hospital for 1 or 2 weeks; he then returned to college.

Josh was seeing a psychologist at that time. Josh's sophomore and junior years at the university passed without incident. In February 2000, Josh began receiving treatment from Dr. Nauphyll Zuberi, a psychiatrist in Joplin, Missouri. Dr. Zuberi found that Josh suffered from a bipolar disorder and prescribed mood-stabilizing and antidepressant drugs for Josh.

In June 2002, approximately 1 month before his suicide, Josh went to a Joplin, Missouri, hospital. He stated that he was depressed and suicidal. Josh was transferred to the Freeman Hospital in Joplin and remained there for about 1 week. Dr. Zuberi treated Josh while at Freeman Hospital. Dr. Zuberi testified that when Josh was discharged from the hospital on June 25, 2002, he was feeling better and there was no indication that he was suicidal. Dr. Zuberi did not...

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