Herland v. Izatt

• Decision Date: 30 January 2015
• Docket Number: No. 20120586.,20120586.
• Citation: 2015 UT 30,345 P.3d 661
• Parties: Wade HERLAND, Personal Representative of the estate of Neely Creager, Appellant, v. Travis IZATT, Appellee.
• Court: Utah Supreme Court

345 P.3d 661

2015 UT 30

Wade HERLAND, Personal Representative of the estate of Neely Creager, Appellant

v.Travis IZATT, Appellee.

No. 20120586.

Supreme Court of Utah.

Jan. 30, 2015.

Jack C. Helgesen, Kurt M. Helgesen, Clearfield, for appellant.

Paul M. Belnap, David E. Brown, Salt Lake City, for appellee.

Chief Justice DURRANT authored the opinion for the Court, in which Associate Chief Justice NEHRING, Justice DURHAM, Justice PARRISH, and Justice LEE joined.

Chief Justice DURRANT, opinion of the Court:

Introduction

¶ 1 The right to bear arms is enshrined in both the United States and Utah Constitutions. But with that right comes responsibilities—a principle our Legislature has recognized by placing certain restrictions on gun ownership. These include restrictions on supplying firearms to minors and individuals who are incompetent or impaired.¹ In this case we are asked to determine whether gun owners have a duty in tort to exercise reasonable care in supplying their guns to intoxicated individuals. We conclude a gun owner does have such a duty. Supplying an intoxicated individual with a gun, just as supplying a car to such a person, creates a foreseeable risk of harm. But the fact that gun owners have such a duty does not mean that they will necessarily be liable for damages when those individuals injure themselves, because in most cases the intoxicated individual's negligence will likely exceed that of the gun owner as a matter of comparative negligence.

¶ 2 The central facts of this case are as follows: after a night of heavy drinking at a party, Neely Creager picked up a loaded handgun and shot herself in the head—a shooting that both parties agree for purposes of this appeal was accidental. Ms. Creager's estate filed this negligence action against Travis Izatt, who was the host of the party and the owner of the handgun. Her estate premised the suit on multiple theories of liability, including general negligence, negligent entrustment, and premises liability. The district court granted summary judgment for Mr. Izatt, concluding that he owed no duty to Ms. Creager. We reverse and conclude that Mr. Izatt may owe a duty to Ms. Creager, who at the time she obtained his gun was severely impaired and posed a risk to herself and to the rest of those attending the party. But this conclusion depends upon how the fact finder below resolves a key factual dispute about whether Ms. Creager gained access to the gun due to an affirmative act or an omission. We emphasize that our holding today concerns only the duty owed by Mr. Izatt to Ms. Creager; we do not decide questions of breach or proximate cause, such as whether Mr. Izatt did, in fact, exercise reasonable care. Nor do we decide the question of whether any fault on the part of Mr. Izatt exceeded the fault of Ms. Creager. For the resolution of these questions we remand for further proceedings consistent with this opinion.

Background

¶ 3 On May 5, 2006, Mr. Izatt invited a few friends over to his home for a night of drinking and partying. Kimberly West, who was one of his friends, invited Ms. Creager, a thirty-year-old woman, to the party. Though Mr. Izatt may have met Ms. Creager on a few previous occasions, he had never spoken with her prior to the party. And unbeknownst to him, Ms. Creager was suffering from severe depression and was on a variety of medications. The party lasted for several hours, and the guests, including Ms. Creager, became intoxicated. In fact, Ms. Creager attained a blood alcohol content of 0.25.

¶ 4 During the course of the evening, Ms. Creager gained possession of Mr. Izatt's handgun.² Precisely how she came into possession of the firearm is unclear, as Mr. Izatt gave different accounts to a 911 dispatcher, a police officer, and in his deposition. After calling 911, he initially told the dispatcher that Ms. Creager “took a gun out of [his] cabinet, put it up to [her] temple and pulled the trigger.” But later during the same call, he stated that she “took the handgun off of [his] counter” and suggested to the group that they play Russian roulette. Mr. Izatt said he cautioned her that the gun was not a revolver, so it would surely fire if the trigger were pulled. He also noted to the dispatcher that “[his] handgun is kinda ... always out.”

¶ 5 When the police arrived on the scene, one of the officers questioned Mr. Izatt about the events. Mr. Izatt told the officer that while playing pool with Ms. Creager, he mentioned to her that he won a shotgun in a pool tournament. He then asked her if she wanted to see it. She answered yes, so the two went to his gun safe to view the shotgun. Once there, Mr. Izatt opened the safe and showed her his guns. There are conflicting versions of what happened next. Under one account, Ms. Creager picked up one of the handguns. Mr. Izatt warned her that the gun was loaded. Mr. Izatt then closed the gun safe, apparently without noticing that Ms. Creager did not put the handgun back in the safe. Mr. Izatt claimed he then left the area, heard a muffled gun shot, and turned around to see Ms. Creager lying on the floor.

¶ 6 Mr. Izatt told a different story in his deposition. He stated that while he and Ms. Creager were viewing his guns in the safe, she asked if she could see his shotgun. He gave her the shotgun, and after holding it briefly, she gave it back to him. As he went to place the shotgun back in the safe, Ms. Creager grabbed the handgun from the safe. Mr. Izatt quickly took the handgun back from her, however, and he placed it back in the safe. Although he could not remember whether it was he or Ms. Creager who actually closed the safe, Mr. Izatt claims he “heard the tumblers lock when [he] turned the lock.” According to him, Ms. Creager then regained access to the handgun without Mr. Izatt knowing, and then followed him out of the room. A few moments later, Mr. Izatt heard a gunshot.

¶ 7 In any case, Ms. Creager shot herself in the head, in what the medical examiner described as a contact-range wound

that left “a visible muzzle imprint abrasion.” The shot killed her. Ms. Creager's estate has argued that she shot herself accidentally, and for purposes of this appeal, Mr. Izatt does not dispute this point.

¶ 8 The police did not bring criminal charges against Mr. Izatt, but Ms. Creager's estate filed a wrongful death action against him in April 2008, alleging that he was negligent in “allowing her to have access to his loaded handgun when she was severely intoxicated.” Mr. Izatt filed a Motion for Summary Judgment on November 30, 2011, arguing that he did not owe any legal duty to Ms. Creager. The district court granted summary judgment in favor of Mr. Izatt, holding that he did not owe Ms. Creager any legal duty. Ms. Creager's estate timely appealed. We have jurisdiction pursuant to Utah Code section 78A–3–102(3)(j).

Standard of Review

¶ 9 “The determination of whether a legal duty exists ... is a purely legal question”³ that requires “an examination of the legal relationships between the parties.”⁴ And we review “a [lower] court's legal conclusions and ultimate grant or denial of summary judgment for correctness and view[ ] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.”⁵ Summary judgment is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.⁶

Analysis

¶ 10 As we explain further below, the district court erred in concluding that Mr. Izatt did not owe Ms. Creager a duty of care under any of the factual scenarios advanced by the parties. Recently, in B.R. ex rel. Jeffs v. West, we identified five key factors that inform our analysis of whether a duty of care exists.⁷ Four of these factors support imposition of a duty on Mr. Izatt in this case, and there was a dispute of material fact regarding the fifth. In framing the applicable duty, we conclude that gun owners have a duty to exercise reasonable care in supplying their guns to others—such as children and incompetent or impaired individuals—whom they know, or should know, are likely to use the gun in a manner that creates a foreseeable risk of injury to themselves or third parties.

¶ 11 We stress that our analysis is confined to the establishment of a duty of care in this general category of cases. We make no ruling today concerning any potential breach of duty or causation, as these are fact-sensitive issues to be resolved on remand. In fact, those who are inebriated and seek to sue another for injuries brought on by their own actions may find it difficult to ultimately prevail in a negligence action, for to do so they must establish under Utah's comparative negligence framework that the negligence of the gun owner was greater than their own.

I. Duty of Care

¶ 12 We begin by reiterating the baseline principle we stated in Beach v. University of Utah —that “a party does not [ordinarily] have an affirmative duty to care for another.”⁸ We adopted this principle from section 314 of the Restatement (Second) of Torts, which states: “The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.” And comment c to section 314 adds that this rule “is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection.”

¶ 13 But action may be necessary where there is an affirmative duty to aid or protect the endangered individual.⁹ In B.R. ex rel. Jeffs v. West, we identified five relevant factors that guide our assessment of whether a duty exists.¹⁰ These include

(1) whether the defendant's allegedly tortious conduct consists of an affirmative act or merely an omission; (2) the legal relationship of the parties; (3) the foreseeability or likelihood of injury; (4) public policy as to which party can best bear the loss occasioned

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