Rubin v. Johnson
| Decision Date | 19 February 1990 |
| Docket Number | No. 72A01-8906-CV-00214,72A01-8906-CV-00214 |
| Citation | 550 N.E.2d 324 |
| Parties | Sidney RUBIN d/b/a Gold's Pawn Shop and Steven Rubin, Appellants (Defendants), v. Doris Jean JOHNSON, as Administratrix of the Estate of David A. Johnson, Appellee (Plaintiff). |
| Court | Indiana Appellate Court |
James E. Bourne, Richard A. Bierly, Samuel A. Day, Wyatt, Tarrant, Combs & Orbison, New Albany, for appellants.
Edwin S. Sedwick, Sedwick & Sedwick, Frank E. Ballard, Jr., Jeffersonville, for appellee.
Sidney Rubin and his son, Steve Rubin, bring this interlocutory appeal in conjunction with their family-owned business, Gold's Pawn Shop, 1 seeking review of the trial court's denial of Rubin's motion for summary judgment. Rubin sought summary judgment in a wrongful death suit filed by Doris Johnson as administrator of the estate of David Johnson, alleging that Rubin negligently transferred a firearm to a mentally incompetent individual who later fatally shot David Johnson. We affirm.
Michael Campbell was thirty-four (34) years old in 1986 and resided with his mother in Jeffersonville, Indiana. In October, 1978, Campbell was committed to Life Spring Mental Health and Guidance Center located in Jeffersonville pursuant to an involuntary 72-hour commitment. Campbell was treated on an out-patient basis after being diagnosed as a paranoid schizophrenic. As of 1986, Campbell was receiving social security benefits due to his mental instability.
On May 31, 1986, Michael Campbell entered Gold's Pawn Shop to purchase a gun. Campbell had frequented the shop on prior occasions to purchase items to add to his collection of "strange things" which included an acorn the size of a man's fist. Campbell stated during depositions that he felt comfortable at the pawn shop, as if he were among friends. He was assisted in At some point during the sale, Steve Rubin asked Campbell why he wanted such a weapon. Campbell told Rubin he wanted the gun to hunt deer and groundhogs, and possibly for target practice. The affidavit of firearms expert James Looney indicates that the Intratec 9 mm was unsuitable for hunting purposes. There is also some indication that Campbell may have commented that the "streets were getting bad," before purchasing the gun. 2 Appellee's Brief at 16. However, Steve Rubin stated that Campbell did not act in any way strange during the purchase and was able to answer the questions put forth by Rubin pursuant to the State form in a coherent manner.
purchasing a gun by Steve Rubin who completed the necessary state forms for Campbell's purchase of an Intratec 9 mm.
On June 7, 1986, Campbell was allowed to have possession of the gun since neither the State Police nor the Jeffersonville Police had informed Gold's Pawn Shop not to release the gun. At this time Campbell completed the necessary federal form which included a question asking whether or not the purchaser had ever been adjudged mentally defective or been committed to a mental institution. Campbell answered this question negatively.
On December 9, 1986, approximately six (6) months after purchasing the gun at Gold's Pawn Shop, Campbell shot and killed David Johnson with the Intratec 9 mm. Campbell subsequently was found guilty but mentally ill of the offense of murder and was sentenced to thirty-two (32) years imprisonment. See Campbell v. State (1989), Ind., 536 N.E.2d 285.
On March 10, 1988, Doris Johnson, as the administrator of the estate of David Johnson, filed a complaint for wrongful death against Gold's Pawn Shop, and Sidney and Steven Rubin. Johnson alleged that Rubin knowingly transferred a firearm to Campbell whom Rubin knew or reasonably should have known was of unsound mind. On June 17, 1989, Rubin filed a motion for summary judgment. After a series of amended pleadings, the motion was set for hearing on March 16, 1989, and on May 19, 1989, the trial court certified for appeal its order denying Rubin's motion for summary judgment, and Rubin filed a praecipe with this court. On July 14, 1989, Rubin's interlocutory appeal was accepted for review.
Rubin claims that the trial court erred in denying summary judgment in favor of the pawn shop and its owner and employee. To determine the validity of Rubin's claim, the following issues must be resolved:
1. Whether the trial court properly admitted and considered the affidavit of James Looney;
2. Whether the evidence submitted to the trial court was sufficient to merit a jury determination of whether Rubin committed negligence per se in selling the Intratec 9 mm to Campbell; and
3. Whether, assuming negligence per se, evidence sufficient to defeat Rubin's motion for summary judgment was presented concerning the issue of whether
Rubin's sale of the Intratec 9 mm to Campbell constituted the proximate cause of David Johnson's death.
Rubin first claims that the trial court erred in admitting and considering the affidavit of firearms expert, James Looney. According to Rubin, Looney's affidavit contains inadmissible conclusions concerning Campbell's mental condition. On this basis Rubin objects to the following statements made in Looney's affidavit:
25. That based upon your Affiant's review of Michael Campbell's Deposition, Steven Rubin and or Gold's Pawn Shop should not have sold the 9 mm Intratec, Model TEC-9, to Michael Campbell as Steve Rubin and/or Sidney Rubin d/b/a Gold's Pawn Shop should have been alerted to Michael Campbell's apparent unsoundness of mind;
26. That one of the reasons that the sale of said 9 mm Intratec, Model TEC-9, should not have occurred is due to Michael Campbell's informing Steven Rubin that he (Campbell) wanted to utilize said 9 mm Intratec for hunting deer and for hunting groundhogs;
27. That, additionally, one of the reasons that the sale of said 9 mm Intratec, Model TEC-9, should have not occurred to Michael Campbell is due to Michael Campbell's perception, which was verbalized to Steven Rubin, as to the problems being experienced by society;
28. That one of the other reasons the sale of said 9 mm Intratec, Model TEC-9, should not have occurred to Michael Campbell is due to Michael Campbell's prior contacts, and associations, with Steve Rubin and Gold's Pawn Shop which should have indicated, to Steve Rubin and/or Sidney Rubin d/b/a Gold's Pawn Shop that he (Michael Campbell) was of unsound mind;
29. That, in your Affiant's opinion, Steve Rubin and Sidney Rubin d/b/a Gold's Pawn Shop, should have gone further than merely obtaining negative answers to certain questions listed on form 4473 prior to the consummation of the sale of said 9 mm Intratec, Model TEC-9;
30. That your Affiant, as a seller of handguns and firearms, recognizes that he sells inherently dangerous items and that, therefore, your Affiant recognizes that a seller of such items should do more than having filled out, or filling out, the necessary forms for the transfer of a handgun and, at a bare minimum, should observe any potential buyer of a handgun for signs of mental deviance;
31. That based upon the review of Michael Campbell's Deposition, Steven Rubin and Sidney Rubin, d/b/a Gold's Pawn Shop had more than adequate opportunity to observe Michael Campbell and determine that he (Michael Campbell) exhibited signs of mental incompetence and mental deviance prior to the sale of the 9 mm handgun to Michael Campbell.
In order to be used in a summary judgment proceeding, an affidavit must be made on personal knowledge, must set forth such facts as would be admissible in evidence and must affirmatively show that the affiant is competent to testify as to the matters stated therein. Mere assertion of conclusions of law or opinions in an affidavit will not suffice. Ind.Trial Rule 56(E); Dedelow v. Rudd Equipment Corp. (1984), Ind.App., 469 N.E.2d 1206, 1209; Indiana University Hospitals v. Carter (1983), Ind.App., 456 N.E.2d 1051, 1057. All portions of an affidavit which cannot be said to have been clearly based on personal knowledge must be stricken. French v. Hickman Moving & Storage (1980), Ind.App., 400 N.E.2d 1384, 1387. Rubin contends that Looney's statement that Campbell was of unsound mind was not based on Looney's personal knowledge. In support of this argument Rubin points out that Looney reviewed only the depositions of Steve and Sidney Rubin and Michael Campbell and the affidavits of Steve and Sidney Rubin, and at no time did Looney have personal contact with Campbell. Therefore, according to Rubin, statements number 25-31 of Looney's affidavit, reproduced above In response to these arguments Johnson notes that Looney's affidavit was offered as an expert opinion. The standard for admissibility of expert opinion is whether that opinion will aid the jurors in understanding the facts. Summers v. State (1986), Ind.App., 495 N.E.2d 799, 803, trans. denied. In order to be admissible expert opinions must be preceded by a foundation establishing the witness' credentials. Yang v. Stafford (1987), Ind.App., 515 N.E.2d 1157, 1161, trans. denied.
should have been disregarded by the trial court. Without citing pertinent case law, Rubin also indicates that as an expert in the sale of firearms, Looney was not qualified to relay his conclusions concerning the mental soundness of Campbell to the trial court.
In response to Rubin's first argument, it is our opinion that Looney's affidavit does not attempt to reach any ultimate conclusion concerning whether or not Campbell was actually incompetent at the time he purchased the gun from Rubin. Rather, Looney merely opines that given both Rubin and Campbell's versions of their past dealings and the actual sale, Rubin reasonably should have suspected that Campbell was mentally deficient and should have refused to sell Campbell the gun. In our opinion, Looney does not attempt to testify to events and conditions outside his personal knowledge. Furthermore, an expert may...
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