Finocchio v. Mahler
| Decision Date | 05 December 2000 |
| Citation | 37 S.W.3d 300 |
| Parties | (Mo.App. E.D. 2000) Julie Finocchio, Plaintiff/Appellant, v. William Mahler and Amanda Mahler, Defendants/Respondents. ED77786 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. John F. Kintz
Counsel for Appellant: Mark A. Panzeri
Counsel for Respondent: John S. McCollough and Matthew P. O'Grady
Opinion Summary: Plaintiff Julie Finocchio appeals the trial court's summary judgment in favor of defendants William Mahler and Amanda Mahler in this wrongful death action arising from the shooting death of Finocchio's daughter by a seventeen-year-old who stole a handgun from the Mahlers' residence.
Division Five holds: The trial court did not err in entering summary judgment for the Mahlers because Finocchio is unable to establish proximate cause.
The plaintiff sued for damages for the wrongful death of her daughter, Amy Roberts. The defendants moved for summary judgment, supporting the motion by exhibits complying with Rule 74.04(e). The plaintiff responded with similar exhibits. In the view we take of the case it is not necessary to set out the underlying facts in detail, because the uncontroverted facts which we consider determinative are relatively few. In stating the facts we seek to give the plaintiff the benefit of all controverted matters of fact, and of all appropriate inferences that might be drawn from the facts in the record.
Defendant, William Mahler, his wife, and their two daughters occupied a residence in St. Louis County. Both parents worked and daughter Amanda, age 13, was often at home during days when school was not in session. Teenage girls frequently visited her at her home, and sometimes teenage boys appeared.
The parents allowed Amanda, who is also a defendant, to use the master bedroom while they were not at home, and her guests also spent some time in the bedroom, which contained a television set. The parents knew that Amanda had visitors who sometimes spent time in the master bedroom.
Among the boys who had visited the Mahler home was Daniel Troy, age 17. On one occasion in 1996 Amanda's father, William, suspected that some of the visiting boys, including Daniel Troy, had stolen some wrenches from the garage, and had instructed Amanda not to let Daniel come in the house. She apparently did not enforce this order.
William Mahler had acquired a Smith & Wesson 9 mm semiautomatic handgun. He stored the gun in the top drawer of dresser in the master bedroom under some clothes. The dresser drawer was not locked. The gun was not loaded when he stored it. He placed ammunition for the weapon in a night stand next to his bed. Nothing in the record indicates that Amanda knew that her father owned a gun or that there was a gun, or ammunition, in the house.
On July 5, 1997, a Saturday, Amanda was home without her parents. A close girlfriend was with her. She then invited a group of boys, including Daniel Troy, into the home. She considered Daniel "a rebel" and said that he had told her about having participated in a drive-by shooting. She and her guests were in the bedroom on that day and were going through her parents' belongings. Daniel found 9 mm shells in the night stand in the bedroom. Nothing in the submissions showed that Amanda was aware that he had intruded into the night stand.
The following day, Sunday, July 6, 1997, Amanda again invited Daniel, along with other teenagers, into the Mahler home and into her parents' bedroom. On this occasion he searched in the drawers and located the handgun, which he took from the drawer. He also found a clip of ammunition in the drawer. There is no indication that Amanda knew what he had done. When he left the premises he took the gun and the clip with him.
On the next day, Monday, July 7, Daniel visited Amy Roberts in her parents' home. The precise location with respect to the Mahler residence is not shown, but Amanda knew Amy. Daniel had the stolen gun with him and recklessly discharged it. Amy was fatally injured by the bullet. Daniel pled guilty to theft, armed criminal action, and involuntary manslaughter.
The plaintiff filed suit against William and Amanda, seeking damages for her daughter's wrongful death. She asserts that persons in control of firearms have a duty to exercise the highest degree of care in avoiding injury to others. She claims that William was negligent in storing the gun in an unlocked drawer without a trigger lock or other safety device, and in permitting minors to have access to the bedroom in which the gun was stored. Amanda, she alleges, was negligent in that she "knew or should have known" of the presence of the gun on the premises, and allowed minors, including Daniel Troy, to have access to her parents' bedroom. The plaintiff now asserts that there are genuine issues of material fact, precluding summary judgment.
Supreme Court Rule 74.04 addresses summary judgment. The principles governing the granting of summary judgment in negligence cases are set out in Martin v. City of Washington, 848 S.W.2d 487 (Mo. banc 1993). The Court sets forth the historic listing of the essential elements of a claim for negligence, requiring the plaintiff to show that "(1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant's breach was the proximate cause of the plaintiff's injury." Id. at 493. The opinion points out that the plaintiff has the burden of establishing each of these elements. If any element is not established, then the defendant is entitled to a directed verdict, a judgment notwithstanding the verdict, or, if moved for in compliance with Rule 74.04, a summary judgment.
There are many gun cases in Missouri and other American jurisdictions and the parties have diligently briefed those they consider closest to the present situation. The plaintiff argues, eloquently, that firearms are inherently dangerous, and that those who own and control firearms should be required to exercise the highest degree of care. She cites Scheible v. Hillis, 531 S.W.2d 285, 287 (Mo. banc 1976), finding a petition alleging the abstracting of a gun from the defendant's dwelling, by a person known to the defendant to have dangerous propensities, sufficient as against a motion to dismiss. We have no hesitation in saying that firearms present inherent dangers, but we are not obliged to decide whether the duty of one in possession or control of a firearm is to exercise "the highest degree of care," or "ordinary care," or to meet some other test. Such standards are used in instructing juries in particular cases, and often the distinction is important. See Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 157-59 (Mo. banc 2000). Here the issue is whether there is a case for the jury, and discussion of the details of instructing is premature.
The defendants argue that they owed "no duty" to the plaintiff's decedent with regard to the storage of the firearm, because injury to her could not reasonably be foreseen. We likewise refrain from considering this issue, which may give rise to numerous hypotheticals and cause problems...
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Steinle v. United States
...of stolen firearms, other jurisdictions have approached the proximate-cause analysis in a similar fashion. In Finocchio v. Mahler , 37 S.W.3d 300, 301 (Mo. Ct. App. 2000), a minor stole a firearm and ammunition from his friend's father. The father kept the firearm and ammunition in a night ......