Valentine v. On Target, Inc.

• Decision Date: 01 September 1996
• Docket Number: No. 236,236
• Citation: 686 A.2d 636,112 Md.App. 679
• Parties: Vincent N. VALENTINE, et al. v. ON TARGET, INC. ,
• Court: Court of Special Appeals of Maryland

Page 679

112 Md.App. 679

686 A.2d 636

Vincent N. VALENTINE, et al. v. ON TARGET, INC.

No. 236, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Nov. 4, 1996.

As Modified Nov. 13, 1996.

Clarke F. Ahlers (Sharon E. Haynie, on the brief), Columbia, for Appellants.

Heather Kelly (Kevin J. McCarthy and McCarthy, Bacon & Costello, L.L.P., on the brief), Lanham, for Appellee.

Argued before WILNER, C.J., MURPHY, J., and THEODORE G. BLOOM, Judge (retired), Specially Assigned.

WILNER, Chief Judge.

Vincent N. Valentine appeals from a judgment of the Circuit Court for Anne Arundel County dismissing his complaint against appellee, On Target, Inc. He raises the following issue for our consideration:

May the victim of a shooting maintain an action against a gun retailer for injuries sustained by the victim as a result of the retailer's failure to prevent the theft and criminal use of the gun?

Background

Because this appeal arises from the granting of a motion to dismiss, rather than a summary judgment or judgment entered after trial, we must confine ourselves to the allegations in the pleadings. Faya v. Almaraz, 329 Md. 435, 444, 620 A.2d 327 (1993); Briscoe v. City of Baltimore, 100 Md.App. 124, 128, 640 A.2d 226 (1994). In addition, because the trial court did not state its reasons for granting appellee's motion to dismiss, we will affirm the judgment if the record discloses any reason why the trial court was legally correct. Briscoe at 128, 640 A.2d 226.

Appellee is a gun retailer serving the greater Metropolitan Washington/Baltimore area. On July 17, 1993, one Edward McLeod and another individual, who has not been identified, stole two guns from the store. The complaint gives no details with respect to how McLeod and his confederate managed to steal the guns. On September 26, 1993, an unknown assailant--apparently not McLeod--used one of the stolen guns to shoot and kill appellant's wife, Joanne.

Appellant filed a wrongful death action on behalf of himself and his two minor children and a survivor's action as personal representative of his wife's estate. In both actions, he claimed that appellee owed a duty to Mrs. Valentine and "all other persons situate in or near Anne Arundel County, Maryland" to exercise reasonable care in the display of handguns held out to the public for sale and "to prevent theft and illegal use of the handguns." Although, as noted, he gave no details as to how the guns were stored, what precautions appellee had taken to secure the guns, or how the theft occurred, appellant nonetheless charged that appellee had breached its duty to Mrs. Valentine and all other residents of Anne Arundel County by failing to (1) properly train and supervise its employees, (2) supervise its customers, (3) install adequate security and keep watch over the handguns, (4) properly secure the handguns, (5) interrupt the theft, and (6) give timely notice of the theft to law enforcement authorities and to the community.

Appellee moved to dismiss the complaint for failure to state a claim upon which relief could be granted. It pointed out the lack of any details indicating what appellee had, in fact, done in each of these regards. In argument on the motion, defense counsel indicated that the guns had been in a locked display case, that the police had been promptly notified, and that they had investigated the theft. Those responses, of course, were merely statements of counsel and may not be considered in determining the adequacy of the complaint on a motion to dismiss. Appellee's principal defense was that it simply owed no duty to Mrs. Valentine. Without explaining its decision, the court dismissed the action.

Discussion

Introduction: Duty and Causation

Appellant avers that appellee is liable under a theory of common law negligence.

An action for negligence requires, of course, proof of negligence, but it requires proof of other elements as well. "To succeed in a negligence action, the plaintiff must [allege and] establish the following: '(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty.' " BG & E v. Lane, 338 Md. 34, 43, 656 A.2d 307 (1995), quoting from Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180 (1994). It is the first two elements, most particularly the second, that constitute the negligence. PROSSER AND KEETON ON TORTS, § 30, at 164 (5th ed. 1984).

Although in many cases there is little or no overlap between the four elements, in some instances the same considerations that relate to or define the element of duty may also relate to or define the element of causation. The element common to both duty and causation is that of foreseeability. Prosser and Keeton speak to the problem at 274-75. To some extent, asking whether the breach of a duty caused the injury begs the question of what the duty was in the first instance. Thus, they point out that the concept of duty "may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation." Id. at 274. Separating the elements in that manner, they acknowledge, is acceptable, "so long as it is not allowed to obscure the fact that identical questions are often still involved, and buried under the two terms, sometimes so deeply that a good deal of digging is called for to uncover them." Id. at 275. See also Henley v. Prince George's County, 305 Md. 320, 333-37, 503 A.2d 1333 (1986).

This case involves that kind of overlap, and the confusion that accompanies it. Even if, as appellant avers, appellee was negligent in allowing someone to steal the guns from its shop, the theft did not directly cause Mrs. Valentine's death; it was the criminal use of one of the stolen guns by an unidentified third person two months later that caused her death. From the right end of a logical spectrum, that can be said to be a problem of causation: the negligent act, if there was one, did not cause the injury. From the left end of the spectrum, it can be viewed as an issue of duty. Duty, it must be recalled, does not exist in a vacuum; the duty required in law must be to the person injured. It is a focused duty. The question, then, may alternatively be framed as whether appellee had a duty owing to Mrs. Valentine to act reasonably to prevent persons from stealing the gun. The missing link between the theft of the gun and the shooting of Mrs. Valentine thus can be said to relate to both elements--the existence of the underlying duty and the causal connection between the breach of a duty and the injury.

In some cases in which this overlap exists, the court can still comfortably see the problem as being predominantly in one area rather than the other. Here, it seems to affect both almost equally, so we shall consider the undisputed missing link in both contexts.

Duty

"Duty," for purposes of the law of negligence, has been defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." PROSSER AND KEETON ON TORTS, supra, § 53, at 356. In Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 556 A.2d 1126 (1989), the Court of Appeals, in determining whether an actionable duty of care exists, approved the criteria and analysis employed by the California Supreme Court in Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976). There, the California court considered the following factors in deciding whether an actionable duty of care exists in a particular case:

"[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved."

Village of Cross Keys, supra, 315 Md. at 752, 556 A.2d 1126, quoting Tarasoff, supra. See also Southland Corp., supra, 332 Md. at 712-13, 633 A.2d 84.

This analysis, resting in large measure on the notion of foreseeability, compounds the problem. Because the law of negligence protects persons only from foreseeable risks of harm, Henley v. Prince George's County, 305 Md. 320, 333, 503 A.2d 1333 (1986), foreseeability is a critical element in ascertaining the existence of a duty. Foreseeability must not, however, be regarded as the full equivalent of duty; the fact that a consequence is foreseeable does not, of itself, create a duty to prevent that consequence. As the Tarasoff Court observed, there is also a cost/benefit ratio to consider--the burden to both the defendant and the community of imposing the duty weighed against the social benefit of imposing the duty as a means of preventing future harm. Obviously, many sub-factors need to be considered even in that subordinate analysis.

This is a particular problem when the conduct of the defendant merely facilitates other wrongful conduct by a third person that serves as the direct causative agent of harm. As in most areas of the law, the courts have struck a balance in that setting. The Maryland law was established in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), where, in response to a question certified to it by the U.S. District Court, the Court of Appeals held that, as a general rule, "a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship." Id. at 166, 359 A.2d...