Jupin v. Kask

• Decision Date: 30 June 2006
• Citation: 447 Mass. 141,849 N.E.2d 829
• Parties: Joanne D. JUPIN, administratrix,<SMALL><SUP>1</SUP></SMALL> & another<SMALL><SUP>2</SUP></SMALL> v. Sharon KASK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

849 N.E.2d 829

447 Mass. 141

Joanne D. JUPIN, administratrix,¹ & another² v. Sharon KASK.

Supreme Judicial Court of Massachusetts, Worcester.

Argued February 9, 2006.

Decided June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Douglas L. Fox for Joanne D. Jupin.

June A. Harris for the defendant.

Dennis A. Henigan, Elizabeth S. Haile & Daniel R. Vice of the District of Columbia, Daniel C. Swanson & Clifford J. Zatz, for The Brady Center to Prevent Gun Violence & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

CORDY, J.

On May 10, 1999, Jason Rivers (Jason), a young adult with a history of violence and mental instability, shot and fatally wounded Officer Lawrence Jupin of the Westminster police department during a foot chase. Jason had obtained the handgun with which he killed Officer Jupin from the home of Sharon Kask (Kask), where his father, Willis Rivers (Rivers), and Kask resided. Kask owned the home. Rivers owned a sizeable gun collection, which he stored in the basement. Jason had been given a key to the home (by Kask or with her knowledge) and was permitted full access to the property, regardless of the presence or absence of Kask or Rivers. Jason had not been given permission to take a gun from the collection.

Joanne Jupin (Jupin), on behalf of her son Lawrence, brought a civil action against Kask, claiming that (1) she was negligent in failing properly to secure the handgun used in the shooting and that she should be liable for the harm caused by it; (2) even if not negligent, Kask should be held strictly liable for the harm caused by a gun stored in her home; and (3) Kask's failure to properly secure the guns stored in her basement constituted a public nuisance. A Superior Court judge granted summary judgment in favor of Kask on all claims, concluding that she owed no duty of care to Officer Jupin in the circumstances of the case, and that the law did not support extending theories of strict liability or public nuisance to the storing of lawfully obtained, unloaded firearms in one's home. We granted Jupin's application for direct appellate review.

We affirm summary judgment on the claims of strict liability and public nuisance. The storage of lawfully obtained, unloaded weapons on one's property is not an ultrahazardous activity of the type to which we would apply a theory of strict liability. Nor does such storage (at least on the facts presented here) create a public nuisance. Consequently, if the case can proceed at all, it must proceed on the claim that Kask was negligent in ensuring the proper storage of firearms kept on her property. The survival of that claim, in turn, depends on whether Kask had a duty of reasonable care.

"Whether there is a duty to be careful is a question of law," Andrade v. Baptiste, 411 Mass. 560, 565, 583 N.E.2d 837 (1992), which we determine "by reference to existing social values and customs and appropriate social policy." Cremins v. Clancy, 415 Mass. 289, 292, 612 N.E.2d 1183 (1993). In the circumstances of this case, we conclude that a homeowner who permits guns to be stored on her property and allows unsupervised access to that property by a person known by her to have a history of violence and mental instability, has a duty of reasonable care to ensure that the guns are properly secured. This duty is owed to, inter alia, a law enforcement officer shot by the person granted unsupervised access, because the officer is a foreseeable victim of the alleged improper firearm storage. We therefore reverse summary judgment on the negligence claim and leave to the jury the determination whether Kask exercised reasonable care.³

1. Background. We recount the facts in the summary judgment materials in their light most favorable to the plaintiff, drawing all permissible inferences in her favor. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17, 445 N.E.2d 136 (1983). In 1983, Kask became the sole owner of a single family home located at 29 Otis Street, Fitchburg. In the same year, Kask's boy friend, Rivers, moved in with her. Rivers was a hunter and had a collection of approximately thirty firearms. He had a license for and was the owner of each of these guns. Kask assented to Rivers storing the weapons in her basement in a gun cabinet he would eventually build. Rivers constructed the gun cabinet from particle board. It was secured with a padlock and hasp. The hasp had exposed screws, apparently observable by anyone who inspected the cabinet, which allowed someone without a key to the lock to remove the hasp and thereby gain access to the guns.

Kask testified in her deposition that she was, on occasion, in the basement during the construction of the gun cabinet, and that in the sixteen years between the construction of the cabinet and the incident at issue here, she had seen the finished gun cabinet and the weapons locked inside it. Kask also testified that the gun cabinet was the only method used to secure the guns in her home⁴ and that firearms were a danger to the public if stolen. She acknowledged that "a stolen firearm was a dangerous thing to be in the hands of the wrong person" and that "there would be a corresponding responsibility on those who stored firearms to be sure that they were kept in a way that they would not be at risk of being stolen." She assumed that Rivers "wouldn't store something like that—unless it could be under lock and key in a cabinet." Nevertheless, it is clear from the record that Kask took no responsibility for, or other control over, the construction, maintenance, or security of the gun cabinet. Her testimony reveals that she never handled the guns or accompanied Rivers on hunting or target shooting outings and that she wanted as little as possible to do with the guns and the gun cabinet.⁵

Rivers' adult son, Jason, lived in the Kask home at various times between 1983 and 1999. Although he was not living at the Kask home at the time of the shooting, Kask testified that Jason had a key to the house and would, apparently often, come to the house regardless of whether she or Rivers was home.

Jason had a history of violence and mental instability, of which Kask was aware, at least in part. Kask knew that (1) Jason had been arrested for assaulting a college professor and that this had led to his psychiatric institutionalization for a ten-day observation period as well as subsequent counseling; (2) Jason had been arrested for assaulting a former girl friend and that this had led to a prison sentence; (3) Jason was involved in a third altercation, which required him to report to court for a hearing on a possible probation violation in May, 1999; and (4) Jason had gone absent without leave from the United States Army, and was subsequently discharged. In addition, Kask was aware that Jason had experience with weapons (from his service in the Army), had expressed interest in obtaining a firearms license, and had often been to the Kask basement, where his father's collection was stored.

Jason did not appear for his May, 1999, probation violation hearing, and a warrant issued for his arrest. On the night of May 10, 1999, Officer Jupin and his partner saw Jason (whom they did not know), dressed in military camouflage, walking on a dark and isolated country road. After a pat-down search revealed a hunting knife, the officers ran a warrant check. Before the check was complete, Jason fled. During the ensuing foot chase, Jason shot Officer Jupin three times. In returning fire, Officer Jupin shot and wounded Jason, who was then arrested. A .357 magnum handgun was recovered from the scene.

The investigation led the police to the Kask residence the morning after the shooting. According to Kask, "they wanted to know if we had any [guns] and if any were missing." Although Rivers initially checked the gun cabinet and reported no guns missing, a second inspection by him revealed that a .357 magnum handgun was in fact missing and that the gun recovered from the shooting was the gun removed from his collection. Rivers then showed Kask that the screws in the gun cabinet's hasp were incorrectly positioned, and realized that someone had circumvented the lock by unscrewing the screws and removing the hasp, later replacing the screws to cover up the theft.

2. Standard of review. Summary judgment is to be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). Disputed facts are material only if they have a bearing on the outcome of the case. Norwood v. Adams-Russell Co., 401 Mass. 677, 683, 519 N.E.2d 253 (1988). The moving party may prevail by showing that the nonmoving party has no reasonable expectation of proving an essential element of his case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 710, 575 N.E.2d 734 (1991). We review the motion judge's decision in light of this standard.

3. Negligence claim. a. Duty of care, generally. To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage. See J.R. Nolan & L.J. Sartorio, Tort Law § 11.1 (3d ed.2005). We generally consider the latter three questions—whether a defendant exercised reasonable care, the extent of the damage caused, and whether the defendant's breach and the damage were causally related—to be the special province of the jury. See Mullins v. Pine Manor College, 389 Mass. 47, 57-58, 449 N.E.2d 331 (1983) (Pine Manor). However, the existence or nonexistence of a duty is question of law, and is thus an appropriate subject of summary judgment. See, e.g., Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260 (2004) ("If no such duty exists, a claim of...