Shirley v. Glass
| Decision Date | 08 October 2010 |
| Docket Number | No. 102,570,102,570 |
| Court | Kansas Court of Appeals |
| Parties | Elizabeth Shirley, as Mother and Next Friend for Zeus Graham, Appellant, v. Imogene Glass, Baxter Springs Gun & Pawn Shop, and Joe and Patsy George, Appellees. |
syllabus by the court
1.When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. A trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence.
2.Summary judgment should be granted with caution in negligence actions. Nevertheless, summary judgment is proper in a negligence action if the defendant showsthere is no evidence indicating negligence. Summary judgment is also proper in a negligence action if the only questions presented are questions of law.
3.The cause of action for negligent entrustment under Restatement (Second) of Torts § 390 (1965) has four elements: (1) an entrustment of a chattel, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that it is the cause in fact of injury or damage to another.
4.A negligent entrustment claim under Restatement (Second) of Torts § 390 (1965) may be brought against a firearms and ammunition seller. Firearms and ammunition sellers have a special duty under Restatement § 390 to not give control of firearms or ammunition to a person whom the dealer knows is incompetent or incapable of handling a firearm or ammunition or of handling those items carefully.
5.In a negligence action, there is no duty to control the conduct of a third person absent a showing that the risk of harm was foreseeable.
6.In order to prove legal causation under the proximate cause element of a negligence claim, a plaintiff must show that it was foreseeable that the defendant's conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes were foreseeable.
7.Foreseeability, for the purpose of proving negligence, is defined as a common-sense perception of the risks involved in certain situations and includes whatever is likelyenough to happen that a reasonably prudent person would take it into account. An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.
8.Whether the 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.
9.The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) the violation must be the cause of the damages resulting therefrom. In addition, a plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature.
10.In order for a person claiming liability based on a statutory violation to recover damages, there must be an individual or a private right of action. A private right of action exists if the legislature intended to give such a right. Whether a private right of action exists under a statute presents a question of law.
11.Kansas courts generally use a two-part test to determine whether the legislature's intention was to create a private right of action in a statute. First, a party must show that the statute was intended to protect a specific group of people instead of to protect the general public. Second, the court must review the legislative history of the statute to determine whether the legislature intended to create a private right of action.
12.Because no private right of action is created by 18 U.S.C. § 922 (2000) of the Federal Firearms Act, a plaintiff may not maintain a claim of negligence per se based upon that code section.
13.In Kansas, the general rule is that in the absence of a special relationship, a person has no duty to control the conduct of a third person to prevent harm to others.
14.A claim for civil conspiracy is established by the following elements: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy.
15.Civil conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated wrong, and because negligence is, by definition, not an intentional wrong, the parties cannot engage in civil conspiracy to be negligent.
Appeal from Cherokee District Court; A.J. WACHTER, judge. Opinion filed October 8, 2010. Affirmed in part, reversed in part, and remanded with directions.
Jonathan E. Lowry, of the Brady Center To Prevent Gun Violence, of Washington, D.C., and James R. Shetlar, of Law Offices of James R. Shetlar, P.A., of Overland Park, for appellant.
James D. Oliver and Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, for appellees.
Before MALONE, P.J., GREEN and BUSER, JJ.
This case involves a wrongful death action. The plaintiff's decedent 8-year-old son, Zeus Graham, died on September 5, 2003, as a result of gunshot wounds inflicted by her estranged husband, Russell Graham. Graham, Zeus' father, was a convicted felon and prohibited from purchasing a firearm. Russell shot Zeus with a 12-gauge New England shotgun and ammunition that his 77-year-old grandmother, Imogene Glass, had purchased that same day from the Baxter Springs Gun & Pawn Shop while accompanied by Russell, through an alleged straw-person sale. After shooting Zeus, Russell used the same firearm to fatally shoot himself.
In August 2005, the plaintiff, Elizabeth Shirley, as mother and next friend for Zeus, sued Glass, the alleged straw-person purchaser of the shotgun, and also Baxter Springs Gun & Pawn Shop and the pawn shop's owners, Joe and Patsy George. Shirley alleged that Glass had been negligent in recklessly purchasing a firearm for a known felon, in fraudulently representing that the firearm was for herself, in circumventing firearm protection laws, and in failing to perform her fiduciary duty to Zeus. Shirley further alleged that the remaining defendants were negligent in selling a firearm to a party while knowing it was intended for another and in failing to perform a background check on the intended owner of the weapon. As the case proceeded through discovery, it was determined that Shirley's claims against the defendants were based on theories of negligence, negligence per se, negligent entrustment, and civil conspiracy.
In January 2007, the defendants, Baxter Springs Gun & Pawn Shop and the Georges, moved for summary judgment on all of Shirley's claims against them. The trial court granted the defendants' motion for summary judgment on all of Shirley's claims. Shirley later moved for and obtained a final order of dismissal with prejudice of her claims against Glass. Shirley now appeals from the trial court's order granting summary judgment to the previously mentioned defendants.
On appeal, Shirley contends that the trial court erred in granting the appellees, Baxter Springs Gun & Pawn Shop and the Georges, summary judgment on her claims of negligent entrustment, negligence per se, simple negligence, and civil conspiracy. Of Shirley's four claims, only one offers a potential avenue to establishing liability in this case: the negligent entrustment claim. As this case shows, Shirley's negligent entrustment claim requires us to decide whether the appellees breached their duty, that is, if a reasonable person would have foreseen that Russell would hurt Zeus or others with the shotgun that was purchased from the appellees. Because there remain questions of fact about what the appellees should have reasonably foreseen as a result of the sale of the shotgun to Glass, in what seems to have been a straw-person purchase of the shotgun, we determine that the trial court erred in granting summary judgment to the appellees on Shirley's negligent entrustment claim. In addition, we determine that the trial court properly granted summary judgment to the appellees on Shirley's claims of negligence per se, simple negligence, and civil conspiracy. Accordingly, we affirm in part, reverse in part, and remand for trial.
Russell and Zeus' mother, Shirley, had a tumultuous marriage and by September 5, 2003, Shirley lived separate from Russell and had filed for divorce. Shirley testified that the first time Russell hit her was in 1999 when he thought that she was cheating on him. According to Shirley, Russell punched her in the arm and hit her on her legs and arms with a baseball bat. Shirley further testified that in 2000, Russell punched her on the side of her head with his fist. Then, in 2001, Russell punched her on the side of her head and on her arm. According to Shirley, Russell also slapped her across the face in 2002. Shirley testified that she did not receive any medical treatment or call the police to report those incidents.
Shirley moved out of the home she had shared with Russell on June 16, 2003. Approximately 1 week later, she received a phone call at work around midnight from Russell telling her that Zeus had been in an accident and that she...
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