Knight v. Wal-Mart Stores, Inc.

• Decision Date: 11 May 1995
• Docket Number: Civ. A. No. 394-021.
• Parties: Linda B. KNIGHT, as Next Friend of Bridgett Brown, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Southern District of Georgia

889 F. Supp. 1532

Linda B. KNIGHT, as Next Friend of Bridgett Brown, Plaintiff, v. WAL-MART STORES, INC., Defendant.

Civ. A. No. 394-021.

United States District Court, S.D. Georgia, Dublin Division.

May 11, 1995.

Steven Mitchell Harrison, Rita Josephine Llop, Eastman, GA, for plaintiff.

Robert A.B. Reichert, Anderson, Walker & Reichert, Macon, GA, Howard M. Lessinger, Albert J. DeCusati, McLain & Merritt, P.C., Atlanta, GA, for defendant.

ORDER

EDENFIELD, Chief Judge.

Before the Court is Defendant Wal-Mart's motion for summary judgment on Plaintiff Knight's claim that Wal-mart is liable for selling a firearm to a mentally incompetent customer who later killed himself with it. For reasons discussed below, the motion is GRANTED as to federal statutory liability and DENIED as to common law liability.

I. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions and affidavits submitted by the parties show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Proc. 56(c). The evidence and any inferences drawn from it should be viewed in the light most favorable to the nonmovant. Mercantile Bank & Trust Co., Ltd. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985). The party seeking summary judgment must first identify grounds which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must reach beyond the pleadings and present affirmative evidence to show that there in fact is a genuine issue of material fact requiring a trial. Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566 (11th Cir.1991). See also United States v. Gilbert, 920 F.2d 878 (11th Cir.1991). A mere "scintilla" of evidence supporting the nonmovant's position, however, will not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). The nonmovant "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

II. Facts

On March 25, 1992, Eric Brown entered the Walmart in Eastman, Georgia. Lisa Edwards, an employee at the store, testified that after noticing Brown, she announced a security code to all departments. L. Edwards Affid. ¶ 6; L. Edwards Dep. at 42-43. Apparently this was standard procedure every time Brown entered the establishment. Id. Another employee, April Wilcox, testified that Brown

walked to the front of the store and stood in front of my register. He looked like he was in a rage. He also appeared rushed, upset and in a hurry and he was talking to himself. Then he turned and rushed back to the back of the store again. When he looked at me, I was afraid of him and I knew he was crazy.

Wilcox Affid. ¶ 4. The accuracy of these accounts is not disputed by Wal-mart, which argues only that they are not relevant.

Brown eventually went to the sporting goods department, in which Patricia Nutt was working that day, and asked to look at a rifle.¹ A different employee showed Brown a weapon that he decided to purchase, and Nutt was asked to assist in completion of the sale. Nutt gave Brown Treasury Form 4473 (U.S. Firearms Transaction Record), a federal form that must be completed by the customer before a firearm may be sold. See 27 C.F.R. § 178.124. Brown was told the purpose of the form and how to complete it. With regard to questions 8(a)-(h) of section A of the form, he was told to initial each to show that he understood the questions posed. Brown completed section A, answering "no" to all questions, including question 8(e), which asked whether the purchaser had ever been adjudicated mentally defective or committed to a mental institution.² This was a lie — Brown had previously been institutionalized. See Pltf.Resp. to Mtn. for Sum.Judg. at Exh. C.³

After completing the form, Brown had not initialed his answers. Nutt once again asked him to do so, and he complied. He then signed the form. Nutt then completed section B of the form. Part B(9) required the seller to state the type of identification used by the purchaser, usually a driver's license. Brown indicated that he did not drive, and produced a valid Georgia State Identification Card.⁴ A manager, Anisa Berry, was finally called to approve the sale, as required by Wal-mart policy. She did so.

At this point Brown tried to buy ammunition for the rifle, but Ms. Nutt explained that it was Wal-mart policy not to allow the purchase of ammunition with a new firearm. Nutt says Brown remained calm, acknowledged that he understood the policy, and paid for the rifle. After the sale, again according to store policy, Nutt escorted Brown to the front of the store, where she gave him his purchase as he exited the establishment.

On the way out, Nutt gave the gun to Ms. Edwards, stationed at the service desk, who removed the security tape from it. Brown then asked for a bag for the package. At this moment, Nutt claims that she got a bag, walked him out, and gave him the bag with the rifle in it. As she re-entered Wal-mart, she claims that Ms. Edwards said to her, "Was that Eric Brown?," to which Nutt replied, "Yes." Edwards then responded, "He's crazy," and laughed. Nutt asserts that Edwards used this term often and loosely, and so Nutt thought nothing of it. She further claims that she was unaware of the store-wide security alert, and even if she had been aware of it, such alerts usually related to a known shoplifter. Employees usually became more watchful in response, but did not necessarily know what individual was implicated. See also L. Edwards Dep. at 43, 47.

Ms. Edwards remembers Mr. Brown's exit from the store differently. She testified that before she removed the security tape from the weapon and gave it to Ms. Nutt, she said to Ms. Nutt, "He's crazy. Y'all sold him a gun?" L. Edwards Dep. at 37; L. Edwards Affid. ¶ 7. Nutt replied that "he had an ID sic and that she had to follow company policy and sell the rifle to him." Id. Ms. Nutt then walked Brown out of the store. Edwards then testified that Ms. Nutt re-entered the Wal-mart after Brown left, found a manager, and both of them went outside to look for Brown. L. Edwards Affid. ¶ 8. Brown had already pedalled away on his bicycle, however, and the two employees returned to the store.

Brown then proceeded to Horn's Bait & Tackle Shop, which is not named in this suit, and bought bullets. He then pedalled home, assembled his new rifle, loaded it, and shot himself in the head. He died from the wound.

The mother of Mr. Brown's only child filed suit in Dodge County Superior Court two weeks later, claiming that Wal-mart breached its common law duty of care and the statutory requirements of the Gun Control Act of 1968, 18 U.S.C. 922(d)(4). This act makes it unlawful for "any person to sell ... any firearm ... to any person knowing or having reasonable cause to believe that such person ... has been adjudicated as a mental defective or has been committed to any mental institution." Wal-mart removed the case to federal court, 28 U.S.C. § 1441, citing federal question jurisdiction. Id. § 1331. It was re-assigned to this Court on January 20, 1995.

III. Law

A. Legal Bases for Recovery

The two potential avenues to establishing liability in this case are the Gun Control Act and negligence, the latter via the Georgia wrongful death statute. O.C.G.A. § 51-4-1 et seq. Within statutory law, there are issues of whether this case falls within that class of cases Congress intended to reach with the Act, and whether Wal-mart breached its duty under it. Within common law, the theory of liability is negligent entrustment: the Court must again decide if Wal-mart breached its duty, i.e., if a reasonable person would have foreseen that Mr. Brown would hurt himself or others with the rifle he sought to purchase. Under both the state and federal laws there is an issue of proximate causation. If Wal-mart is found liable for negligence, the state wrongful death statute authorizes recovery of the full value of Brown's life.

Any liability for Wal-mart in this case will result from its position as employer of two persons: Patricia Nutt, the employee who sold Brown the rifle, and Lisa Edwards, the employee who removed the security tape from the rifle and returned it to Ms. Nutt, thus allowing her to give to Brown as he left the store. Liability rests on the doctrine of respondeat superior: the employer is liable for torts of its servants when the servants are acting within the scope of the employer's business. See O.C.G.A. § 51-2-2; Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953); Spencer v. McCarley Moving Co., 174 Ga. App. 525, 330 S.E.2d 753 (1985). At issue here is the claim that Wal-mart employees negligently entrusted Mr. Brown with a weapon. Both Ms. Nutt and Ms. Edwards participated in this entrustment. Ms. Nutt by performing the sale, Ms. Edwards by assisting its completion. The knowledge of these two women and their actions in light of it will determine Wal-mart's liability.

The actions or knowledge of Ms. Wilcox, another Wal-mart employee who was aware of Mr. Brown on the day he bought the rifle, cannot establish liability for Wal-mart. She did not participate in the sale of the rifle to Brown; she could not even know Brown had purchased a weapon.

Plaintiff cites Freeman & Sons, Inc. v. Stanley, 189 Ga.App. 256, 258, 375 S.E.2d 261 (1988), rev'd in part, 259 Ga. 233, 378 S.E.2d 857 (1989), and American Oil Co. v. McCluskey, 119 Ga.App. 475, 476, 480, 167 S.E.2d 711 (1969), for the proposition that the knowledge of every Wal-mart employee should be imputed to Wal-mart and considered when deciding if Wal-mart had knowledge of Brown's mental illness. The two cases, however, are inapposite: Freeman, a negligent hiring/retention case, stands for the...