Shirley v. Glass

• Decision Date: 19 July 2013
• Docket Number: No. 102,570.,102,570.
• Parties: Elizabeth SHIRLEY, as Mother and Next Friend of Zeus Graham, Appellant, v. Imogene GLASS, Baxter Springs Gun & Pawn Shop, and Joe and Patsy George, Appellees.
• Court: Kansas Supreme Court

297 Kan. 888

308 P.3d 1

Elizabeth SHIRLEY, as Mother and Next Friend of Zeus Graham, Appellant,

v.Imogene GLASS, Baxter Springs Gun & Pawn Shop, and Joe and Patsy George, Appellees.

No. 102,570.

Supreme Court of Kansas.

July 19, 2013.

Syllabus by the Court

1. The tort of negligent entrustment is a creation of the common law.

2. A plaintiff does not have to demonstrate that a statute created a cause of action in order to pursue a common-law tort.

3. The United States Congress and the Kansas Legislature may create private causes of action that the common law did not recognize.

4. A plaintiff in a negligence action must prove four elements: a duty owed to the plaintiff, breach of that duty, causation between the breach of the duty and injury to the plaintiff, and damages suffered by the plaintiff.

5. A negligent entrustment claim requires specific proof that the defendant entrusted a chattel to an incompetent entrustee with knowledge or reason to know of the entrustee's incompetence and that the entrustee's incompetence while using the chattel was the cause in fact of injury to the entrustee or another.

6. An obligation created by statute may serve as a basis for establishing a duty, and violation of that statutory obligation may serve as evidence of breach of that duty.

7. In order to utilize a statute to establish a duty of care, a plaintiff must demonstrate that the purpose of the statute includes protecting the plaintiff against the kind of harm that the plaintiff suffered as a consequence of the violation of the statutory obligation.

8. A plaintiff seeking to bring a private cause of action based on violation of a statute must demonstrate membership in the class of people that a statute is designed to protect, but that class of people may be broad and may include all members of the public.

9. One function of K.S.A. 21–4203, prohibiting the sale of firearms to certain convicted felons, is to protect the citizens of this state from violent crimes committed by those felons.

10. The duty that is owed in a negligence action is one of reasonable care. When dealing in dangerous instrumentalities, reasonable care requires control over the instrumentality that is as cautious as is reasonably possible.

James R. Shetlar, of Law Offices of James R. Shetlar, P.A., of Overland Park, and Jonathan E. Lowy, of the Brady Center To Prevent Gun Violence, of Washington, D.C., argued the cause and were on the briefs for appellant.

Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, argued the cause, and James D. Oliver, of the same firm, was with him on the brief for appellees.

The opinion of the court was delivered by ROSEN, J.:

This appeal addresses a civil proceeding following the tragic murder of a child by his father and the father's subsequent suicide. The child's mother brought an action in negligence against the parties who provided the father with the murder weapon. This court is called upon to decide two narrow legal questions that are related to general principles of negligence.

The case was decided in district court on summary judgment. Reviewing the evidence in the light most favorable to the nonmoving party, we find that the facts are as follows:

Zeus Graham was born to Elizabeth Shirley on July 3, 1995. Russell Graham was Zeus' father, as well as the father of an older boy, Alexander, by a different mother. Imogene Glass was Russell's grandmother and Zeus' great-grandmother.

Russell had a criminal history that included convictions of attempted rape and attempted kidnapping. Glass was aware of her grandson's convictions and had heard from Russell that he was not allowed to possess weapons. Glass was also aware that her grandson had a hot temper and that he tended to lose control of himself when he was angry. His bad temper manifested itself in violence towards Shirley, which included punching her on multiple occasions, slapping her, and hitting her with a baseball bat.

On July 23, 2003, Russell called Shirley at work and summoned her to pick up Zeus from his house. When Shirley arrived, Russell accused her of infidelity and struck her numerous times on her jaw, arm, and chest. Russell told Shirley that if she screamed, the last thing that the boys would hear would be the sound of him killing her. Shirley filed a request for and received a protection from abuse order on that same day.

On August 22, 2003, Shirley brought Zeus to Russell's house for visitation. Before going into the house, Russell whispered to Shirley that if she did not move back in with him by the next day, he would kill Zeus. Shirley went to the police station and reported the threat. That weekend, Russell attempted to suffocate Zeus while the boy was sleeping, but the attack was not fatal.

Around the time that Kansas dove-hunting season opened in the fall of 2003, Russell told Glass—his grandmother—that Zeus and Alexander wanted to learn how to hunt doves and go hunting with their friends. On September 5, 2003, Russell called Glass to suggest going with her to purchase a gun for the boys. He promised Glass that the gun would be kept at her house and that he would not have possession of the gun.

Later that day, Glass and Russell drove in her car to Baxter Springs Gun & Pawn Shop. They had not been to the pawn shop before, and the owners, Joe and Patsy George, were not acquainted with them. Patsy had previously been a party to a telephone conversation with a man who asked about shotguns and said he wanted to purchase a single-shot shotgun so that he could take his child dove hunting. Glass and Russell went into the pawn shop together. When they entered the shop, Russell told Joe that he had called and there was a shotgun that he wanted to see. Russell told Joe that he would be paying for the gun.

Glass went to the back of the pawn shop and up to the gun counter, held the shotgun, and ordered ammunition and a gun-cleaning kit. Both Russell and Glass told the Georges that the shotgun was a gift for children. Joe then handed the shotgun to Russell, who examined the gun and said that it looked nice and would be all right.

Joe asked Russell, “Have you been a good boy?” Russell said no and told Joe that he had a felony conviction. (Joe denied that this conversation, reported by Glass, took place.) Joe then said to Glass, “Let's see if grandma has been a good girl.” Joe later explained that the reason for asking the question was to lighten the mood with a joke, while Patsy explained that the question was not a joke but was intended to determine whether a purchaser could legally buy a gun.

Glass filled out portions of Form 4473, writing her name in as the transferee or buyer of the gun. By signing the form, she acknowledged that she was the “actual buyer of the firearm(s)” listed on the form. The form also contained a notice stating: “Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.” The form further explained: “You are also the actual buyer if you are acquiring the firearm(s) as a legitimate gift for a third party.” In addition, the form stated that the signatory understood that the purchase of a firearm on behalf of another person is a felony. Glass did not read the form that she signed or fill in the yes/no questions because, in her view, she was not purchasing the gun. Glass passed a background check and was given information on youth gun safety.

Russell then pulled cash from his pocket and declared that he was going to pay for the shotgun, the ammunition, and the cleaning kit. He either handed the money to Patsy or gave the money to Glass to give to Patsy. Russell picked up the shotgun and left the store with it in his hands. He had a receipt for the purchase when he and Glass returned to the car. A video camera that monitored the store apparently malfunctioned on the date of the transaction and failed to record the circumstances of the sale.

Russell took the gun from Glass' car when she dropped him off at his house. At about 11:50 that evening, Russell called Shirley and told her that Glass had helped him obtain a shotgun that day. He said that if she came over to his house and talked with him, she and Zeus would leave alive, but that if she did not come over or if anyone else came over, he would shoot Zeus. He added that he would shoot himself that night in either event.

Shirley then called a friend, who instructed her to stay at home until he got there. He then called the police. Shirley called Russell back and left a message on his answering machine saying that she was on her way over. At around that same time, Russell shot and killed Zeus and then shot and killed himself.

On August 3, 2005, Shirley filed a petition in district court seeking damages in tort. Count I of the petition raised a claim of negligent entrustment and breach of a fiduciary duty on the part of Glass. Count II asserted that the pawn shop and the Georges negligently sold a firearm to a party while knowing that it was intended for another and without performing a background check on the intended owner. The defendants all filed an answer, and the pawn shop and the Georges moved for summary judgment.

On March 13, 2008, the district court entered an order granting the pawn shop and the Georges' motion for summary judgment on all theories. The order made findings consistent with K.S.A. 60–2102(c), relating to interlocutory appeals. On March 31, 2008, Shirley filed a timely notice of appeal. Shirley failed, however, to file an application for interlocutory appeal with the Court of Appeals, and the Court of Appeals dismissed the appeal as interlocutory.

Shirley then filed a motion to dismiss with prejudice her claims against Glass, asserting both that Glass had been diagnosed with Alzheimer's disease and that dismissal was appropriate in order to obtain finality of judgment. The district court granted the motion,...