First Commercial Trust Co. v. Lorcin Engineering, Inc.

• Decision Date: 26 June 1995
• Docket Number: No. 94-1094,94-1094
• Citation: 900 S.W.2d 202,321 Ark. 210
• Parties: , 64 USLW 2064 FIRST COMMERCIAL TRUST COMPANY, Administrator of the Estate of Stephanie Michelle Jungkind, Deceased, Appellant, v. LORCIN ENGINEERING, INC., Appellee.
• Court: Arkansas Supreme Court

Page 202

900 S.W.2d 202

321 Ark. 210, 64 USLW 2064

FIRST COMMERCIAL TRUST COMPANY, Administrator of the Estate of Stephanie Michelle Jungkind, Deceased, Appellant, v. LORCIN ENGINEERING, INC., Appellee.

No. 94-1094.

Supreme Court of Arkansas.

June 26, 1995.

Sandy S. McMath, Little Rock, for appellant.

Edwin L. Lowther, Jr., Guy Amsler, Jr., Little Rock, for Amicus Brief The Product Liab. Advisory Council, Inc.

GLAZE, Justice.

This civil case arises from the fatal shooting of Stephanie M. Jungkind by Michael Catlett. Two weeks ago we affirmed Catlett's conviction for the capital murder of Stephanie. See Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995). In this litigation, Stephanie's estate, represented by First Commercial Trust Company, brought suit against Catlett, Garry's Pawn Shop and Lorcin Engineering, Inc. Garry's sold to Catlett the .380 pistol, manufactured by Lorcin, which Catlett utilized in his killing of Stephanie. ¹

In pertinent part, First Commercial's complaint alleged Lorcin was negligent in promoting its .380 handgun for sale to a market it knew or should have known included a substantial number of persons who would be prone to misuse the handgun by injuring and killing others. It further alleged Lorcin negligently failed to supply distributors or retailers with a safe-sales policy, including descriptions of the point-of-purchase appearance/conduct "profiles" of prospective purchasers Lorcin knew would likely misuse the .380 handgun. Finally, First Commercial alleged Lorcin negligently failed to warn its distributors and retailers so as to enhance their abilities to identify probable misusers of Lorcin's .380 handgun. This negligence of Lorcin, First Commercial urged, was a contributing proximate cause of Stephanie's death.

Lorcin moved to dismiss, stating First Commercial did not allege Lorcin's .380 handgun was defective in design or manufacture. Lorcin further asserted it owed no other duty to the plaintiff. Upon reviewing the parties' pleadings, all evidence and argument of counsel, the trial court held Lorcin owed no duty to First Commercial's estate and was not liable under the negligence theories asserted by First Commercial.

The trial court then entered an Ark.R.Civ.P. 54(b) order granting First Commercial's motion for entry of final judgment wherein the court specifically and factually stated that Garry's Pawn Shop was the only defendant against which First Commercial could proceed, since (1) Lorcin had been dismissed from the case and (2) Catlett had criminal charges pending against him, making it impractical or impossible to proceed against him because of Fifth Amendment considerations. Accordingly, the trial court entered a final judgment in Lorcin's favor, permitting First Commercial to pursue an immediate appeal from the judgment while First Commercial's claims against both Catlett and Garry's Pawn Shop became fully triable. As previously noted, the criminal charges against Catlett have now been tried and affirmed upon appeal. The trial court's specific reasons for allowing this appeal and Catlett's separate criminal proceeding to conclude were reasonable and appropriate considerations under Rule 54 and were designed to permit the parties' respective claims and defenses to be invoked and presented at one timely trial. Thus, we accept jurisdiction of this cause on appeal. See Guebert v. Williams, 319 Ark. 43, 889 S.W.2d 30 (1994).

While Lorcin filed a motion to dismiss First Commercial's complaint because it failed to state facts upon which relief could be granted, the trial court, in dismissing the complaint with prejudice, considered evidence outside the pleadings, thereby effectively converting the motion to one for summary judgment. See Amalgamated Clothing & Textile Workers Int'l Union v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). On appeal, we must only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leaves a material question of fact unanswered. Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). Here, because we agree with the trial court's holding that Lorcin owed no legal duty to First Commercial's estate, we must conclude First Commercial had no cognizable claim and the trial court properly dismissed it with prejudice.

First Commercial primarily relies upon Franco, Adm'x v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977), and Cullum & Boren v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980), in arguing that liability based upon common law negligence should be imposed upon Lorcin as the manufacturer and supplier of its .380 handguns ultimately sold to customers. In sum, it theorizes that, because common law liability can be imposed upon a retailer selling firearms to customers, manufacturers like Lorcin should also bear similar responsibility, especially when the manufacturer withholds information that bears upon public safety decisions in selling such firearms.

Neither the Bunyard nor Peacock case supports First Commercial's contentions. First Commercial concedes, as it must, that both of those cases bear upon a retailer's common law negligence liability in selling a gun to a customer. Those cases in no way suggest such liability applies to the manufacturer or supplier of guns. In fact, Bunyard suggests the contrary. There, a convict escaped the state penitentiary and, days later, bought a second-hand pistol from Bunyard Supply Company, Inc. with which he killed two victims and injured a third after conducting a robbery. Bunyard failed to comply with the federal gun control law and regulations when selling the pistol. Those laws required the seller (licensed dealer) to complete federal form 4473 which served to identify the purchaser and to obtain information that would aid in determining if the firearm should be sold to the customer. The Bunyard court held the proof presented questions of fact as to the liability of Bunyard Supply, pointing out that the violation of a statute or valid regulation is ordinarily evidence of negligence. After holding that the retailer, Bunyard Supply, was subject to common law negligence liability when selling firearms, the court then concluded Western Auto Supply Company bore no such liability, stating as follows:

Bunyard Supply...