Kitchen v. K-Mart Corp.

• Decision Date: 17 July 1997
• Docket Number: K-MART,No. 86812,86812
• Parties: 22 Fla. L. Weekly S435 Deborah KITCHEN, Petitioner, v.CORPORATION, Respondent.
• Court: Florida Supreme Court

Page 1200

697 So.2d 1200

22 Fla. L. Weekly S435

Deborah KITCHEN, Petitioner, v. K-MART CORPORATION, Respondent.

No. 86812.

Supreme Court of Florida.

July 17, 1997.

Richard A. Kupfer of Richard A. Kupfer, P.A., West Palm Beach, Raymond Ehrlich of Holland & Knight, Jacksonville, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Petitioner.

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

Arthur Joel Berger, Miami, and Dennis A. Henigan, Gail R. Robinson and Mark D. Polston Jack W. Shaw, Jr. of Brown, Obringer, Shaw, Beardsley & DeCandio, P.A., Jacksonville, for International Mass Retail Association; National Sporting Goods Association; and The Florida Retail Federation, Amici Curiae.

                Washington, DC, for The Center to Prevent Handgun Violence;  American Public Health Association;  Florida Police Chiefs Association;  Tampa Bay Area Chiefs of Police Association;  Florida Coalition Against Domestic Violence, Inc.;   Center Against Spouse Abuse, Inc.;   and The National Association of Social Workers, Inc., Florida Chapter, Amici Curiae
                

ANSTEAD, Judge.

We have for review a decision ruling upon the following question certified to be of great public importance:

CAN A SELLER OF A FIREARM TO A PURCHASER KNOWN TO THE SELLER TO BE INTOXICATED BE HELD LIABLE TO A THIRD PERSON INJURED BY THE PURCHASER?

See K-Mart Corp. v. Kitchen, 662 So.2d 977, 979 (Fla. 4th DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the question in the affirmative.

FACTS

We initially note that in urging us to answer the certified question in the negative, respondent must accept the "worst case scenario" of the facts--that a retail vendor should not be held liable for selling a firearm to a purchaser who is patently drunk and who immediately thereafter injures a third person with the weapon. On the night of December 14, 1987, petitioner Deborah Kitchen was shot by her ex-boyfriend, Thomas Knapp, and rendered a permanent quadriplegic, shortly after Knapp purchased a .22 caliber bolt-action rifle from a local K-Mart retail store. Knapp testified that he had consumed a fifth of whiskey and a case of beer beginning that morning and up until he left a local bar around 8:30 p.m. Knapp drove from the bar to a local K-Mart store where he purchased a rifle and a box of bullets. He returned to the bar and, after observing Kitchen leave in an automobile with friends, followed in his truck. He subsequently rammed their car, forcing it off the road, and shot Kitchen at the base of her neck. See Kitchen, 662 So.2d at 977-78.

At trial, Knapp had no recollection of exactly what occurred in K-Mart when he bought the gun, and there was no other direct evidence regarding Knapp's behavior during the sale. On the other hand, the plaintiff's experts testified that if Knapp had consumed as much alcohol during that day as he indicated, it would have been apparent to the clerk that Knapp was intoxicated. The clerk who sold the gun testified that K-Mart has a policy against selling firearms to intoxicated persons and that Knapp did not appear to be intoxicated. However, the clerk also testified that although he asked Knapp to fill out a required federal firearms form, Knapp was unable to do so because his handwriting was not legible. The clerk then filled out another form himself, and had Knapp initial each of the "yes/no" answers and sign his name at the bottom of the form. Id.

Kitchen's action against K-Mart was in three (3) counts, alleging common law negligence, violations of section 790.17, Florida Statutes (1987) (prohibiting sale to minors or persons of unsound mind), and violations of the Federal Gun Control Act, 18 U.S.C. § 922 (1994) (prohibiting sale to minors, felons, unlawful drug users, adjudicated mental defectives, et cetera). The trial court ruled as a matter of law that K-Mart was not liable on the statutory claims, and submitted the negligence claim to the jury. The jury found K-Mart liable to Kitchen for negligence, and awarded substantial damages. The trial court entered a judgment on the verdict. The Fourth District reversed the judgment, concluding as a matter of law that because of statutory pre-emption K-Mart could not be held liable for negligence in selling a gun to an intoxicated person. ¹

LAW AND ANALYSIS

We have held that to bring a common law action for negligence in Florida, the "minimal threshold legal requirement for opening the courthouse doors" is a finding that a defendant's alleged actions created a foreseeable "zone of risk" of harming others. McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992); accord Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989). We explained in McCain that:

Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others....

Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

593 So.2d at 503 (footnote omitted) (quoting Kaisner v. Kolb, 543 So.2d at 735). We further explained that "as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken." Id. In essence, the question before us here is whether, under Florida law, the risk of danger is sufficient to create a duty on the part of a provider of a firearm not to give a firearm to someone the provider knows or should know is intoxicated. The petitioner urges us to adopt section 390 of the Restatement (Second) of Torts (1965) as the legal standard for determining the liability of one who provides a firearm to another under the circumstances presented here.

More commonly known as the law of negligent entrustment, section 390, entitled "Chattel for Use by Person Known to be Incompetent," sets out the following standard of care:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

The doctrine of negligent entrustment was actually established prior to the publication of the first Restatement of Torts, and is a recognized civil cause of action in nearly every state. See Robert M. Howard, The Negligent Commercial Transaction Tort: Imposing Common Law Liability on Merchants for Sales and Leases to "Defective" Customers, 1988 Duke L.J. 755, 759-60 (1988) (citing Douglass v. Hartford Ins. Co., 602 F.2d 934, 936 (10th Cir.1979)). Before focusing on the recognition of a cause of action under the Restatement, we first address the Fourth District Court's conclusion that it was required to set aside the trial court judgment because of decisions of this Court concerning statutory interpretation and pre-emption.

FOURTH DISTRICT DECISION

The Fourth District cited Bankston v. Brennan, 507 So.2d 1385 (Fla.1987), and Horne v. Vic Potamkin Chevrolet, Inc., 533 So.2d 261 (Fla.1988), in support of its conclusion that Kitchen had failed to state a valid cause of action for common law negligence in Florida. We conclude that both Bankston and Horne are distinguishable and not controlling as to the circumstances of the instant case.

HORNE

In Horne, an automobile dealer was sued for negligent entrustment after the purchaser, observed by the dealer's agent to be an erratic driver, drove away from the dealership after purchasing the vehicle and promptly ran into another car. Horne, 533 So.2d at 261. The trial court entered judgment for the injured occupant of the other car, but the Third District reversed and certified the following question to this Court:

SHOULD FLORIDA ADOPT SECTION 390 OF THE RESTATEMENT (SECOND) OF THE LAW OF TORTS, AND,

IF SO, SHOULD THE SECTION BE CONSTRUED SO AS TO EXTEND LIABILITY TO A SELLER OF A CHATTEL AS WELL?

Id. We declined to answer the certified question, however, and narrowed our analysis and resolution to the facts of the case. We reworded the question as follows:

IS A SELLER OF AN AUTOMOBILE NEGLIGENT UNDER SECTION 390 OF RESTATEMENT (SECOND) OF TORTS (1966) WHEN IT KNOWINGLY SELLS A CAR TO A DRIVER WHO, AFTER DEMONSTRATING DRIVING INCOMPETENCE, NEVERTHELESS INTENDS TO DRIVE THE VEHICLE?

Id. at 261 n. 1. At the time of the incident in Horne, a Florida statute specifically precluded the imposition of civil liability on an automobile seller after a bona fide transfer of the vehicle. § 319.22(2), Fla. Stat. (1981). Thus, we concluded in Horne that we could not hold an automobile seller responsible given the legislature's clear intent to bar any liability in section 319.22(2). 533 So.2d at 263. ² Because the certified question addressed in Horne was narrowed and limited to the facts of the case, this Court specifically did not address the broader question of the application of section 390 in Florida.

BANKSTON

In Bankston, a social host served alcohol to a minor, who, while intoxicated, drove away and collided with a vehicle driven by the plaintiffs. 507 So.2d at 1386. The plaintiffs sued the social host, alleging a violation of section 768.125, Florida Statutes (1983). Section 768.125 states:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful...