McGuiness v. Brink's Inc.

• Decision Date: 20 August 1999
• Docket Number: No. Civ. Y-98-727.,Civ. Y-98-727.
• Parties: Ronald W. McGUINESS v. BRINK'S INCORPORATED
• Court: U.S. District Court — District of Maryland

60 F.Supp.2d 496

Ronald W. McGUINESS v. BRINK'S INCORPORATED

No. Civ. Y-98-727.

United States District Court, D. Maryland.

August 20, 1999.

Ronald S. Landsman, Baltimore, Maryland, for plaintiff.

Keith J. Harrison, Washington, DC; Jeffrey W. King, Washington, DC; and Cheryl A. Maier, Washington, DC, for defendant.

MEMORANDUM OPINION

JOSEPH H. YOUNG, Senior District Judge.

I.

This matter is before the Court on the defendant's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiff, Ronald W. McGuiness ["McGuiness"], asserts claims of common law negligence, negligent entrustment, and negligent hiring and retention against the defendant, Brink's Incorporated ["Brink's"].

A motion to dismiss for failure to state a claim is reviewed under the long-established standard that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of the facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 181 (4th Cir.1996). Moreover, the Court must take all the allegations of the plaintiff as true and construe the Complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Finlator v. Powers, 902 F.2d 1158 (4th Cir.1990)

II.

Brink's is in the business of transporting, protecting and storing the coin, currency, negotiable instruments and other valuables of its customers. On or about December 16, 1994, Brink's and one of its employees, Norma Jean Brashear, applied for and submitted an application for a handgun permit to the Maryland State Police department indicating that Brashear was in line to be promoted to a driver and/or messenger. Such a position would require Brashear to pick-up and deliver valuables, necessitating the carrying of a firearm. The Maryland Police approved the handgun permit for Brashear on or about February 15, 1995. The license permitted Brashear to carry her firearm between her residence and the Brink's office while actively engaged as an armored car guard and/or driver and while on duty as a Brink's employee.

On August 25, 1995, Raymond Ratliff shot and injured the plaintiff, Ronald McGuiness. The assailant shot McGuiness with the firearm owned by Brink's and issued by Brink's to Brashear. The plaintiff alleges that the weapon used by Ratliff in the shooting was provided to Ratliff with the full permission of Brashear. At the time of the shooting, Ratliff and Brashear, who were cohabitating, were allegedly driving around in an attempt to make a drug deal. Allegedly, Ratliff used the gun to warn McGuiness, who was approaching their vehicle, to stay away. When he did not, Ratliff shot him.

McGuiness was shot in his left shoulder, which resulted in paralysis on his left side due to the bullet lodged in his spinal column. McGuiness is suing for past and future lost wages, mental anguish, pain and suffering, and future miscellaneous losses. McGuiness seeks $5,000,000.00 for each count in his Complaint.

III.

COUNT I — NEGLIGENCE

Count I is a claim of negligence against Brink's for the shooting of McGuiness by a third party. Under Maryland law, there is no special duty to protect another from criminal acts by a third person, in the absence of a statute or a special relationship. Scott v. Watson, 278 Md. 160, 166, 359 A.2d 548, 552 (citing Restatement (Second) of Torts § 315 (1965)).

McGuiness argues that Brink's had a duty to safely control a dangerous instrumentality affirmatively placed in the public sector as a condition of employment of Brashear, thereby creating a dangerous agency. It is the plaintiff's position that when a dangerous instrumentality such as a firearm is involved, the duty owed is a duty to the public at large and that there need be no special relationship as argued by the defendant.

The Maryland Court of Appeals has recently rejected such a high standard for firearms. Valentine v. On-Target, Inc., 353 Md. 544, 727 A.2d 947 (Md.1999). In Valentine, the defendant was a gun retailer who had two guns stolen from the store. An unknown assailant used one of the stolen guns and killed the plaintiff's wife. The court ruled that "although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another," this does not create a duty to third persons. Id. at 556, 727 A.2d at 953. To find such a duty, the court held, would effectively be "regulating the merchant. This type of regulation is the realm of the legislature and is not appropriate as judicial enactment." Id.

Hence, the question is whether there should be more liability for issuing a handgun to a properly-permitted employee than displaying weapons for sale to the public as in Valentine. It is arguable that Brink's would have a duty where a shop owner would not. A shop owner sells firearms to any person meeting the state permit requirements. Brink's supplies firearms to its employees to be used to further Brink's interest as an employer. When uniformed Brink's employees carry their weapons, they are representing Brink's. A company should have more control over its employees than over its customers. Hence, a company is more accountable for the actions of its employees than for the actions of its customers. Nonetheless, it is unnecessary to determine what duty Brink's had to third parties. The factual scenario at issue precludes a finding of liability due to lack of proximate cause.

To proceed to trial, McGuiness needs to plead that Brink's breached a duty owed and that that breach was the proximate cause of his damages and was not "interrupted by a break in the chain of causation." Liberto v. Holfeldt, 221 Md. 62, 65, 155 A.2d 698, 700 (1959). Even if Brinks were found to have a duty to an unrelated third-party, there is no indication in this case that Brinks was the direct or proximate cause of McGuiness' injury.

"Ordinarily, the question of whether causation is proximate or superseding is a matter to be resolved by the jury. Only if the evidence can lead to no other conclusion, can the matter be decided as a matter of law." May v. Giant Food, Inc., 122 Md.App. 364, 383, 712 A.2d 166, 175 (1998) (citing Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 52-53, 656 A.2d 307 (1995); Suburban Trust Co. v. Waller, 44 Md.App. 335, 347, 408 A.2d 758 (1979) ) cert. denied, 351 Md. 286, 718 A.2d 234 (1998).

Brink's argues that two actions supersede any liability of Brink's. First, Brashear illegally lent her weapon to Ratliff and second, Ratliff criminally shot the plaintiff. Brink's argues that there is no liability where the intervening act is neither invited by nor an ordinary response to the original act. See Henry v. Merck & Co., 877 F.2d 1489, 1495 (10th Cir.1989). For example, using a car to run someone down is not what one normally does with a car. However, while shooting someone may not be what everyone with a firearm does, is it arguably the intended usage of the instrumentality.

In Hartford Insurance Co. v. Manor Inn of Bethesda, 335 Md. 135, 642 A.2d 219 (1994), the Maryland Court of Appeals held that unforeseeable criminal acts break the chain of causation, relieving the original negligent actor of liability. In Hartford, the defendant's employee left a van unattended with the doors unlocked and the keys in the ignition. See id. at 138, 642 A.2d at 221. The van was stolen and negligently driven into the injured party's car. See id. at 140, 642 A.2d at 221. The court found the defendant could have anticipated and prevented the theft of the car. See id. at 160, 642 A.2d at 231. The Hartford court assumed that this was negligent, but found that the negligent driving was not foreseeable, and was hence a superseding cause of injury relieving the employer of liability. See id. "[L]iability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury...." Id. at 156, 642 A.2d at 230 (quoting Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851, 855 (1970)).

In the instant case, there are two independent causes of the injury: (1) the illegal loan of the weapon and (2) Ratliff's subsequent criminal use of it to shoot the plaintiff. Brashear affirmatively took action by criminally lending her firearm to the assailant. Ratliff then criminally shot the victim. The Court finds this scenario unforeseeable and far too attenuated to hold Brink's liable. As discussed, supra, Maryland law holds that unforeseeable criminal acts supersede liability. While it may be that Brink's is subject to a higher standard of liability for a firearm than for an automobile, it is not so high as to hold Brink's liable where there are two unforeseeable criminal actions. The actions of Brink's are not the proximate cause of Ratliff's injury and hence, Brink's is not liable for negligence as a matter of law.

COUNT II — NEGLIGENT ENTRUSTMENT

Count II is based on a theory of negligent entrustment of a firearm. The tort of negligent entrustment was first recognized by the Maryland Court of Appeals in Rounds v. Phillips, 166 Md. 151, 160-61, 170 A. 532 (1934). See Mackey v. Dorsey, 104 Md.App. 250, 257, 655 A.2d 1333 (1995). Maryland has adopted the Restatement (Second) of Torts § 390 (1965) as its standard for negligent entrustment. See id. Section 390 states:

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...