T & M Jewelry, Inc. v. Hicks ex rel. Hicks

• Decision Date: 20 April 2006
• Docket Number: No. 2004-SC-000797-DG.,No. 2003-SC-000665-DG.,2003-SC-000665-DG.,2004-SC-000797-DG.
• Citation: 189 S.W.3d 526
• Parties: T & M JEWELRY, INC. d/b/a the Castle, et al., Appellants, v. JENNIFER HICKS By and Through Her Parents and Next Friends, Linda Hicks and Doug Hicks, et al., Appellees. Jennifer Hicks By and Through Her Parents and Next Friends, Linda Hicks and Doug Hicks, et al., Appellants, v. T & M Jewelry, Inc. d/b/a the Castle, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 526

189 S.W.3d 526

T & M JEWELRY, INC. d/b/a the Castle, et al., Appellants, v. JENNIFER HICKS By and Through Her Parents and Next Friends, Linda Hicks and Doug Hicks, et al., Appellees.

Jennifer Hicks By and Through Her Parents and Next Friends, Linda Hicks and Doug Hicks, et al., Appellants, v. T & M Jewelry, Inc. d/b/a the Castle, et al., Appellees.

No. 2003-SC-000665-DG.

No. 2004-SC-000797-DG.

Supreme Court of Kentucky.

April 20, 2006.

Barry Miller, James D. Ishmael, Jr., Fowler, Measle & Bell, LLP, Lexington, Counsel for Appellants/Cross-Appellees.

Robert L. Elliott, Joe C. Savage, Escum L. Moore, III, Savage, Elliott, Houlihan, Moore, Mullins & Erdmann, LLP, Lexington, Counsel for Appellees/Cross Appellants.

OPINION OF THE COURT

Eighteen-year-old Scott Greer shot his girlfriend, Jennifer Hicks, in the face with a pistol he had recently purchased from the Appellants, T & M Jewelry, Inc. d/b/a The Castle and Carol's Sporting Good, Inc., owned by Carol Harlin (collectively "The Castle"). Scott testified that he believed the gun to be unloaded and was playfully trying to scare Jennifer when he pulled the trigger. Scott thought that Jennifer "looked cute when she was scared." Jennifer and her parents (collectively "The Hickses") filed suit against The Castle, which in turn joined Scott as a third-party defendant. The Hickses alleged that The Castle was negligent in selling a handgun to Scott, a person under the age of twenty-one, in violation of federal law. Both negligence per se and common-law negligence claims were asserted against The Castle.

Initially, the trial court granted summary judgment in favor of The Castle on the negligence per se claim but determined to allow the common-law negligence claim to proceed. Subsequently, however, the trial court also granted summary judgment in favor of The Castle on the common-law claim, concluding that The Castle had no duty under Kentucky law to refrain from selling a handgun to an adult under the age of twenty-one and, even if there was such a duty, Scott's actions constituted a superseding cause which absolved The Castle of any liability.

The Court of Appeals agreed that summary judgment was appropriate on the negligence per se claim, but reversed the summary judgment on the common-law negligence claim. Both parties appealed and this Court granted discretionary review.

The Castle argues that the Court of Appeals should be reversed on the common-law negligence issue and that the trial court's summary judgment on both claims should be reinstated. The Hickses argue that the Court of Appeals' decision to allow the common-law negligence action to proceed should stand and that we should reverse the Court of Appeals' affirmance of the trial court's summary judgment on negligence per se, allowing both claims to proceed. Thus, the propriety of summary judgment on the negligence per se claim and the common-law negligence claim are properly before this court.

Summary judgment is appropriate only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. We have held that to prevail, a movant must show that it appears impossible for the opposing party to succeed on its claim or defense.¹ A reviewing court must consider the record in the light most favorable to the party against whom the summary judgment was granted.²

Scott and Jennifer went to The Castle on July 18, 1996 and viewed its selection of handguns. Both Scott and Jennifer testified that Scott explicitly asked a Castle employee how old he had to be to purchase a handgun and the employee answered "eighteen." Furthermore, Jennifer testified that the employee told Scott that although the minimum age to purchase somewhere else, for example Wal-Mart, was twenty-one, a purchaser at The Castle only needed to be eighteen. Scott selected a Jennings .22-caliber semi-automatic pistol and filled out the required paperwork. He provided The Castle with a valid driver's license that revealed his date of birth to be October 15, 1977, making him eighteen years old at that time. Seven days later, Scott returned to The Castle and took possession of the pistol he had purchased. He filled out more paperwork that, again, demonstrated that he was only eighteen years old. The very next day Scott, behaving playfully and believing the pistol to be unloaded, shot Jennifer in the face.

Carol Harlin, the owner and operator of The Castle testified that all employees, including the employee who made the sale to Scott, had been trained not to sell a handgun to a person younger than twenty-one. She admitted that The Castle should not have sold the pistol to Scott.

The relevant provision of The Gun Control Act of 1968 is 18 U.S.C. § 922(b)(1) which states in pertinent part:

It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, (under this chapter) or licensed collector to sell or deliver any firearm ... to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm . . . is other than a shotgun or rifle ... to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age[.]

The Castle violated this statute. However, both the trial court and the Court of Appeals agreed that The Hickses had not stated a claim for negligence per se and we, too, must agree. Although the Act imposes criminal penalties for violations of this statute, it does not explicitly provide a civil remedy. Recognizing that neither the presence of a criminal penalty nor the absence of an express civil remedy is dispositive of the availability of a civil remedy under the federal statute, we must determine whether the statute implicitly provides a private civil remedy.³ The United States Supreme Court has delineated four factors necessary to this determination.⁴ The first factor is whether the plaintiff is "one of the class for whose especial benefit the statute was enacted."⁵ The second factor focuses on legislative intent and requires a determination of whether there is any indication, explicit or implicit, that Congress intended to create or deny a private civil remedy. The third inquiry is whether implying a private remedy for the plaintiff is consistent with the underlying purposes of the legislative scheme. The fourth and final factor is whether it would be inappropriate to infer a private cause of action based solely on federal law because the cause of action is one traditionally relegated to state law.⁶

In Alderman v. Bradley,⁷ the Court of Appeals of Kentucky reviewed decisions in other jurisdictions addressing the issue. The Court of Appeals cited with approval the following language from Decker v. Gibson Products Co. of Albany, Inc.:⁸

There is no indication in the legislative history of § 922 which suggests a congressional intention to vest in those victims injured by firearms obtained in a violation of § 922 a federal right to damages. A careful reading of the legislative history suggests that Congress intended the section to thwart the unlawful disposition of firearms at its inception rather than provide retrospective, remedial relief. This is evidenced by the legislative history's emphasis on increased law enforcement assistance and by the desire of Congress to afford relief to the Nation, rather than its injured victims.⁹

Significantly, however, the Eleventh Circuit reversed the U.S. District Court's grant of summary judgment in the above-quoted case.¹⁰ Although the Eleventh Circuit agreed that the Gun Control Act provided no federal right to damages, it held that the plaintiffs had a right to have a jury determine whether the defendants' sale of a handgun to the particular person in that case was reasonable in light of the federal statute and under all the circumstances surrounding the transaction. The Eleventh Circuit also directed the U.S. District Court to evaluate whether violation of the Act constituted negligence per se under Georgia law.¹¹ While some other jurisdictions have allowed violations of the federal statute to be admitted as evidence of negligence,¹² we have discovered no case that holds that Congress intended to provide a federal right to damages under this statute. On the other hand, a provision of the recently enacted Protection of Lawful Commerce in Arms Act,¹³ 15 U.S.C.A. § 7903(5)(a) would seem to undermine previous views of congressional intent. The protections of the new act expressly do not apply to actions brought against sellers for negligence per se or actions brought against sellers who knowingly violated a state or federal statute applicable to the sale.

Turning to state law, the Hickses contend that The Castle's violation constitutes negligence per se. KRS 446.070 codifies the doctrine of negligence per se in Kentucky.¹⁴ It provides:

A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

While the language of this statute does not expressly limit its reach to state statutes, numerous provisions in KRS Chapter 446 refer to "the statute laws of this state," and also repeatedly refer to acts or intent of "the General Assembly."¹⁵ Thus "any statute" in KRS 446.070 has been held to be limited to Kentucky statutes and not to federal statutes or local ordinances.¹⁶ The Kentucky General Assembly did not intend for KRS 446.070 to embrace the whole of federal laws and the laws of other states and thereby confer a private civil remedy for such a vast array of violations. On the other hand, we should not ignore The Gun Control Act of 1968, supra, and the Protection of Lawful Commerce in Arms Act, supra. Thus, we must decide what effect these statutes have on the Kentucky common-law civil liability of federally licensed gun dealers operating in Kentucky. Accordingly, we now...