K-Mart Corp. v. Kitchen

• Decision Date: 18 October 1995
• Docket Number: No. 93-3731,K-MART,93-3731
• Citation: 662 So.2d 977
• Parties: 20 Fla. L. Weekly D2337 CORPORATION, Appellant, v. Deborah KITCHEN, Appellee.
• Court: Florida District Court of Appeals

Page 977

662 So.2d 977

20 Fla. L. Weekly D2337

K-MART CORPORATION, Appellant, v. Deborah KITCHEN, Appellee.

No. 93-3731.

District Court of Appeal of Florida Fourth District.

Oct. 18, 1995.

G. Bart Billbrough and Geoffrey B. Marks of Walton, Lantaff, Schroeder & Carson, Miami, and John Beranek of MacFarlane, Ausley, Ferguson & McMullen, Tallahassee, for appellant.

Richard A. Kupfer of Richard A. Kupfer, P.A., and Edward Ricci & Associates, P.A., West Palm Beach; Portner & Stine, P.C., Palm Beach Gardens; and Thomas, Garvey, Garvey & Sciotti, P.C., St. Clair Shores, Michigan, for Appellee-Deborah Kitchen.

KLEIN, Judge.

Thomas Knapp, after a day-long drinking spree, purchased a .22 caliber rifle at K-Mart and then shot his ex-girlfriend, leaving her a quadriplegic. A jury found K-Mart guilty of common law negligence, and returned a verdict in the amount of $12,580,768. We reverse because we conclude that where, as here, there is no statutory prohibition against the sale of a firearm to a person who is intoxicated, the seller is not responsible to a third person for the improper use of the firearm. We do certify the question as one of great public importance.

The facts, in a light most favorable to plaintiff, reflect that Knapp, by his own estimate, had consumed a fifth of whiskey and a case of beer, from the morning of December 14, 1987, when he started to drink, until he left a bar around 8:30 p.m., after becoming angry at plaintiff, who was his ex-girlfriend. Knapp drove to a K-Mart where he purchased a .22 caliber bolt action rifle and a box of bullets at approximately 9:45 p.m. Knapp then drove back to the bar and, after observing plaintiff leave in an automobile with friends, followed them in his truck and rammed them from behind when they were stopped at a light. He then forced them off the road and shot plaintiff, rendering her a permanent quadriplegic.

Knapp, who pled guilty to attempted murder and is serving a 55 year sentence, had no recollection of what occurred in K-Mart. The K-Mart clerk who sold Knapp the rifle testified that Knapp's handwriting on the federal form required for a firearm purchase was not legible, and that he then filled out another form for Knapp, and had Knapp initial each of the "yes/no" answers and sign his name at the end. The clerk testified that Knapp did not appear to be intoxicated, and that K-Mart has a policy against selling firearms to intoxicated persons. There was no direct evidence regarding Knapp's behavior in K-Mart besides the testimony of this clerk. Plaintiff presented experts who testified that if Knapp had consumed as much alcohol during the day as Knapp had indicated, it would have been apparent to the clerk that Knapp was intoxicated.

Plaintiff's complaint alleged both common law negligence and violations of section 790.17, Florida Statutes (1987) (prohibiting sale to minors or persons of unsound mind), and the Federal Gun Control Act, 18 U.S.C. Sec. 922 (prohibiting sale to minors, felons, unlawful drug users, adjudicated mental defectives, et cetera); however, the trial court directed a verdict for K-Mart on the statutory claims (which has not been cross-appealed) and submitted the case to the jury only on the theory of common law negligence. The court instructed the jury that K-Mart's violation of its own internal rule against selling firearms to intoxicated persons was evidence of negligence. We conclude that the jury should not have been so instructed, and that the trial court should have directed a verdict in favor of K-Mart.

The only Florida case cited by plaintiff in which the seller of a firearm has been held subject to liability for common law negligence is Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla. 2d DCA 1978). In that case, however, the customer was engaging in bizarre behavior in the store, and after observing that behavior, the store's employee called the sheriff's office and told one of the officers that a woman wanted to buy a rifle, but was acting strangely. The officer advised him that he did not have to sell the rifle, but he, nevertheless, sold her the rifle, along with ammunition, and shortly thereafter she shot and killed another person. The court held that the complaint stated a cause of action because the customer's erratic behavior made it foreseeable that someone would be injured as a result of the sale. In the present case there was no evidence that Knapp engaged in any type of erratic behavior, only that he consumed a substantial amount of alcohol.

In all of the other Florida cases relied on by plaintiff it was undisputed that the vendors violated the Federal Gun Control Act, K-Mart Enterprises of Florida, Inc. v. Keller, 439 So.2d 283 (Fla. 3d DCA 1983), and Coker v. Wal-Mart, 642 So.2d 774 (Fla. 1st DCA 1994); a Florida statute, Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959); or a local ordinance, Sogo v. Garcia's National Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993).

Although we do not favor the indiscriminate sale of firearms, we are persuaded by decisions of the Florida Supreme Court involving analogous factual situations that we cannot extend the common law liability of a vendor under the circumstances of this case.

In Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla.1987), the Florida Supreme Court rejected common law liability of a social host who furnished alcoholic beverages to a minor who then drove while drunk and injured the plaintiff. After concluding that there was no violation of a statute, the court stated:

Petitioners' final argument is that ... we should recognize a common law cause of action in favor of similarly situated plaintiffs. We decline. We do not hold that we lack the power to do so, but we do hold that when the legislature has actively entered a particular field and has clearly indicated its ability to deal with such a policy question, the more prudent course is for this Court to defer to the legislative branch. (Footnote omitted.)

We cannot distinguish the present case from Bankston. As it has with alcohol, our legislature has also entered the field of regulating the sale of firearms. Section 790.17, Florida Statutes (1987), which was in effect when this incident occurred, provides:

Whoever sells, hires, barters, lends, or gives any minor under 18 years of age any pistol, dirk, electric weapon or device, or other arm or weapon, other than an ordinary pocketknife, without permission of the parent of such minor, or the person having charge of such minor, or sells, hires, barters, lends, or gives to any person of unsound mind an electric weapon or device or any dangerous weapon, other then an ordinary pocketknife, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083 or s. 775.084.

And in 1991, several years after this incident, the Florida legislature passed section 790.151, Florida Statutes (1991), which makes it unlawful for a person to use a firearm while under the influence of alcohol or a controlled substance. The legislature has not, however, gone so far as to prohibit the sale of a firearm to a person who is known to be intoxicated, as some states have. See, e.g., Miss.Code Ann., Sec. 97-37-13 (1972).

Since our legislature has not extended vendor liability for the sale of a firearm under the circumstances of this case, our imposition of liability on K-Mart here would be taking a step which our supreme court declined to take in Bankston. ¹ We...