Long v. Turk
| Decision Date | 19 August 1998 |
| Docket Number | No. 79546,79546 |
| Citation | 265 Kan. 855,962 P.2d 1093 |
| Parties | Alice F. LONG, Appellant, v. Steven L. TURK, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A .357 Magnum handgun is a dangerous instrumentality. The highest degree of care is required in safeguarding such a handgun. The degree of care has to be commensurate with the dangerous character of the instrumentality, and a duty to exercise the highest degree of care never ceases.
2. The legislative policy behind K.S.A. 21-4203 and 21-4204a supports our holding that a person owes the public a duty to store a handgun in a safe and prudent manner, taking into consideration the type of handgun, where the ammunition is located, and the circumstances of the gun's use. A factual determination is required to decide whether 3. In reviewing summary judgment, all facts must be taken in the light most favorable to the party opposing summary judgment. Summary judgment is appropriate if there are not genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). The standard of review is de novo.
the steps a person took to safeguard the handgun met the highest degree of care test.
4. Whether risk of harm is reasonably foreseeable is a question for the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court decide the question as a matter of law.
5. In a summary judgment appeal by a parent, as plaintiff, seeking to impose civil liability on a handgun owner for the death of the parent's child, the record is reviewed and it is held: (1) The record, when reviewed in a light most favorable to plaintiff, raises a disputed risk of harm foreseeability issue, (2) the trier of fact should decide if it was foreseeable defendant's minor son would use a .357 Magnum handgun to protect himself from people who were bothering him, (3) reasonable persons could disagree whether defendant's minor son's use of the .357 Magnum was foreseeable, and (4) the district court erred in granting summary judgment to defendant.
Jerry R. Palmer, of Palmer, Lowry & Leatherman, of Topeka, argued the cause, and L.J. Leatherman, of the same firm, was on the briefs for appellant.
Thomas E. Wright, of Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, of Topeka, argued the cause, and Evelyn Zabel Wilson, of the same firm, was with him on the brief for appellee.
Gary D. White, Jr., of Schroer, Rice, P.A., of Topeka, was on the brief for amicus curiae Kansas Trial Lawyers Association.
Kelly W. Johnston, of Johnston Law Offices, P.A., of Wichita, and Dennis A. Henigan, of Legal Action Project, of Washington, D.C., were on the brief for amicus curiae The Center to Prevent Handgun Violence.
This is a summary judgment appeal by a parent, as plaintiff, seeking to impose civil liability on a handgun owner for the death of the parent's son. The claim arises from the fatal shooting of Alice Long's son, Tony, by defendant Steven Turk's son, Matthew. Both boys were minors. Tony was killed by a hollow point bullet from a .357 Magnum handgun owned by Steven Turk.
Jurisdiction is under K.S.A. 20-3018(c), a transfer from the Court of Appeals on our motion.
The issues are:
(1) Does the inherently dangerous instrument doctrine require an owner of a .357 Magnum handgun to exercise the highest degree of care in safeguarding it?
(2) Did the district court err in granting summary judgment for the defendant father?
The answer on both issues is, "yes." We reverse the summary judgment.
Matthew, age 17, was driving his car in Topeka around 9:30 p.m. on October 18, 1994. He knew it was illegal to carry a concealed weapon in the car. He encountered a van in which Tony, also 17, was a passenger. A shouting match followed. After driving side-by-side for a few blocks, the van turned. Matthew followed. He reached under the floor mat of his car, pulled out his father's .357 Magnum handgun, and fired one shot out the passenger side window. The hollow point slug went through the back window of the van, killing Tony. Matthew was tried as an adult and convicted of involuntary manslaughter.
At the time of the shooting, Matthew, who lived with his parents, was 37 days short of his 18th birthday. Matthew's father, Steven, owned many guns, which were locked in a gun safe. (The .357 Magnum was registered in Steven's wife's name although Steven bought it and his wife never used it). Matthew knew where the keys to the safe were. He had access to all his father's guns. The .357 Magnum was in a hidden compartment of a cabinet. The compartment was secured There is conflicting evidence in the record about whether Matthew took the gun without his father's permission or whether his father gave him the gun for protection. Matthew, in his deposition here and at his criminal trial, testified that: (1) he took the gun when his parents were not home and (2) he was not supposed to take the gun without his father's permission.
by 2 1/2 inch screws. Matthew helped his father build the compartment. The .357 Magnum and the hollow point bullets were in the same cabinet.
Police and expert witness reports from the criminal case attached to Matthew's deposition, however, suggest that: (1) Steven had given Matthew permission to use the gun for protection on previous occasions, (2) the handgun had been provided for him for protection by his family as part of the security system the family believed was necessary because of the neighborhood conditions where they lived, and (3) Steven knew Matthew was carrying a handgun for his own protection as people had been bothering him.
Steven objects to consideration of the reports on appeal, contending that they are not affidavits and were not adopted by Matthew. Long counters that the reports were exhibits attached to the deposition and the district court referred to facts contained in the reports in making its ruling.
The district court's Memorandum Decision and Order says in part:
"While defendant [Steven Turk] had not given Matthew permission to carry the gun on the day in question, he regularly gave him permission to carry it on other occasions.1 He did so believing that his son needed protection given the level of crime activity in their neighborhood.2 (Emphasis added.)
During Matthew's deposition, he was asked to read a report of his examination by Dr. R.E. Schulman, a clinical and forensic psychologist. Counsel for Long instructed Matthew: "You can stop reading when it gets down to collateral contacts. The rest is his analysis. What I'm trying to cover is your information you gave to him.
The questioning continued:
At this point counsel for Steven objected to the form of the question and said:
Dr. Schulman said in the PRESENT CIRCUMSTANCES section of his report referencing the date of the fatal shooting:
Matthew was cross-examined by his father's counsel using Dr. Logan's report.
(Section F is labeled "Mr. and Mrs. Turk (Matthew's parents.")) Section F says, in part
The objection to the reports was never ruled on. No objection to the reports was made in the summary judgment submission Steven presented to the district court. The reports marked as deposition exhibits were in the record before the district court and indirectly referenced in the district court's decision. They are in the record on appeal.
Steven and Matthew were deposed. Steven moved for summary judgment.
The district court granted summary judgment for Steven relying on Capps v. Carpenter, 129 Kan. 462, 283 P. 655 (1930), and Restatement (Second) of Torts § 308 (1964). The district court said, in part:
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