Noble v. Shawnee Gun Shop, Inc.

• Citation: 409 S.W.3d 476
• Decision Date: 29 October 2013
• Docket Number: WD 75537.,Nos. WD 75536,s. WD 75536
• Parties: Carolee NOBLE, et al., and Jo Ann K. Nilges, et al., Appellants, v. SHAWNEE GUN SHOP, INC., Respondent.
• Court: Court of Appeal of Missouri (US)

409 S.W.3d 476

Carolee NOBLE, et al., and Jo Ann K. Nilges, et al., Appellants,

v.SHAWNEE GUN SHOP, INC., Respondent.

Nos. WD 75536, WD 75537.

Missouri Court of Appeals, Western District.

July 16, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 27, 2013.

Application for Transfer Denied Oct. 29, 2013.

Randy W. James, Lee's Summit, MO, for appellant.

Kelly A. Ricke, Overland Park, KS, for respondent.

Before Division Two: ALOK AHUJA, P.J., and KAREN KING MITCHELL and ANTHONY REX GABBERT, JJ.

ALOK AHUJA, Judge.

These consolidated appeals involve two separate lawsuits which were dismissed for identical reasons by the Circuit Court of Jackson County. The plaintiffs in each case brought claims against Shawnee Gun Shop, Inc. d/b/a/ The Bullet Hole. The plaintiffs alleged that the Gun Shop was negligent in selling firearm ammunition and/or magazines to a purchaser who later used the items to shoot and kill two individuals. The circuit court dismissed both cases for failure to state a claim upon which relief can be granted. We affirm.

Background

Because this case was decided on a motion to dismiss, we assume the truth of the allegations of the petitions filed in the two underlying cases. The Gun Shop operates a retail store selling firearms, ammunition, and related merchandise in Overland Park, Kansas. According to the petitions, David W. Logsdon purchased firearm magazines and/or ammunition from the Gun Shop on April 24, 2007, using a credit card which he had stolen from Patricia Reed. Reed was Logsdon's neighbor, and was found dead in her home; Logsdon is suspected of murdering her.

On April 29, 2007, it is believed that Logsdon used the ammunition and/or magazines he purchased from the Gun Shop in a shooting spree in the parking lot of the Ward Parkway Shopping Center in Kansas City, during which he shot and killed Luke Nilges and Leslie Noble Ballew, in addition to injuring several other people. Logsdon was later shot and killed by police inside the shopping center.

Nilges' parents, Jo Ann and Wayne Nilges, and Ballew's parents, Carolee and Leo Noble (collectively “Appellants”), filed separate wrongful-death actions against the Gun Shop in the circuit court, alleging that the Gun Shop was negligent in its sale of the magazines and/or ammunition to Logsdon. Appellants alleged that Logsdon's use of Reed's stolen credit card to purchase the ammunition and/or magazines should have alerted the Gun Shop that Logsdon's purchase presented a risk of serious injury.

The circuit court dismissed both cases in 2009 for lack of personal jurisdiction over the Gun Shop. We reversed, and remanded the cases to the circuit court for further proceedings. Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364 (Mo.App.W.D.2010).

On April 17, 2012, the Gun Shop filed motions to dismiss in both cases, alleging that Appellants' petitions failed to state claims upon which relief could be granted. In response, Appellants requested and were given leave to file amended petitions. On June 15, 2012, the Gun Shop renewed its motions to dismiss. The circuit court dismissed both cases with prejudice on August 24, 2012.

Standard of Review

The standard of review for a circuit court's grant of a motion to dismiss is de novo. A motion to dismiss for failure to state a claim on which relief can be granted is an attack on the plaintiff's pleadings. Such a motion is only a test of the sufficiency of the plaintiff's petition. The facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiffs. The court makes no effort to weigh the credibility and persuasiveness of the facts alleged. Rather, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. In order to survive the motion, the petition must invoke substantive principles of law entitling plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.

In re T.Q.L., 386 S.W.3d 135, 139 (Mo. banc 2012) (citations and internal quotation marks omitted).

Analysis

The Protection of Lawful Commerce in Arms Act (the “Commerce in Arms Act” or “Act”), 15 U.S.C. §§ 7901–7903, generally prohibits lawsuits against a manufacturer or seller of firearms and related products based on the criminal misuse of such items, unless the suit falls within one of six enumerated exceptions. The Act provides that “[a] qualified civil liability action may not be brought in any Federal or State court,” and that qualified civil liability actions pending when the statute was enacted in 2005 “shall be immediately dismissed by the court in which the action was brought or is currently pending.” 15 U.S.C. §§ 7902(a), (b). The Commerce in Arms Act “expressly preempts state common law by requiring that state courts immediately dismiss qualified civil liability actions” not falling within a statutory exception. Est. of Kim v. Coxe, 295 P.3d 380, 387–88 (Alaska 2013); see also, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1131–32 (9th Cir.2009).

The Act defines a “qualified civil liability action” as:

a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include [actions falling within six enumerated exceptions].

15 U.S.C. § 7903(5)(A). A “qualified product” is defined to be “a firearm ..., or ammunition ..., or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.” 15 U.S.C. § 7903(4).

The parties do not dispute that the underlying actions fall within the general definition of “qualified civil liability actions”: the Gun Shop was a “seller,” the magazines and/or ammunition were “qualified products,” and Appellants seek both compensatory and punitive damages resulting from Logsdon's criminal misuse of the ammunition and/or magazines. Therefore, dismissal of Appellants' lawsuits was required by the Commerce in Arms Act, unless their claims fall within one of the statutory exceptions.

The Act's definition of a “qualified civil liability action” excludes “an action brought against a seller for negligent entrustment....” 15 U.S.C. § 7903(5)(A)(ii). The Act defines “negligent entrustment” as:

the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

15 U.S.C. § 7903(5)(B). Appellants rely exclusively on the “negligent entrustment” exception to avoid the Commerce in Arms Act's broad prohibition of qualified civil liability actions.

Although Appellants acknowledge that “these cases are not common law negligent entrustment cases,” they nevertheless contend that their claims fall within the Commerce in Arms Act's “negligent entrustment” exception. The Gun Shop disagrees; it argues that, unless Appellants' causes of action constitute viable claims for “negligent entrustment” under state law, their claims cannot fall within the Act's “negligent entrustment” exception, and the trial court was required to dismiss them.

The parties' dispute as to whether Appellants' claims must be denominated as “negligent entrustment” claims under state law is something of a diversion. The Act creates an exception to its broad preemption of firearms-related tort suits for causes of action for “negligent entrustment.” The Act specifically defines the “negligent entrustment” claims which may continue to be asserted. While the Act uses the label “negligent entrustment” to denote this category of excepted claims, it could just as easily have used phrases like “exempt action” or “non-preempted claim” to denote the excepted claims, with the same legal effect. The label “negligent entrustment” is less important than the specific description Congress provided of the actions which survive. In other words, a state-law claim may continue to be asserted, even if it is not denominated as a “negligent entrustment” claim under state law, if it falls within the definition of a “negligent entrustment” claim provided in 15 U.S.C. § 7903(5)(B).

The allegations of Appellants' amended petitions clearly fall within the Commerce in Arms Act's definition of a “negligent entrustment” claim. The petitions allege that the Gun Shop permitted Logsdon to purchase magazines and/or ammunition using a stolen credit card issued to a female cardholder, and knew or should have known that Logsdon was using Reed's credit card without authorization, and was thereby committing a crime. The petitions further allege that, because the Gun Shop knew or should have known that Logsdon was making his purchases with a stolen credit card, it knew or should have known that Logsdon was likely to use the purchased articles in a manner involving unreasonable risk of physical injury to others.

Even if the Appellants' allegations fall within the Commerce in Arms Act's “negligent entrustment” exception, however, the question remains: do those allegations state a viable cause of action under the governing substantive law? We conclude that the answer to this question is “no,” and that dismissal of Appellants' petitions was therefore required.

The Commerce in Arms Act does not itself create a private right of action for claims falling within the “negligent entrustment” exception. The Act specifies only that the broad preemption of “qualified civil liability actions” found in 15 U.S.C. § 7902(a) “shall not include” claims for ...