Victims and Violence

Victims' Litigation Targets Gun Violence

By Dennis Henigan, Director, Legal Action Project
Originally published in
Trial magazine
February 1995

Victims of gun violence and their families seeking damages for their injuries are posing some fundamental legal questions in the nation's courts. Should.phpaccountability for gun violence be confined to the person who pulled the trigger? Or should it extend to those whose actions allowed the shooter.phpto obtain the gun? What about the parent who kept a loaded pistol in a drawer within easy reach of children? What about the gun dealer who.phpknowingly sold guns to teenagers through adult "straw purchasers"? And, what about manufacturers who sell to civilians military-style assault.phpweapons that can fire 30 bullets in five seconds?

The courts seem to be slowly fashioning a common law of accountability that recognizes that the inherent danger of firearms justifies a.phphigher standard of conduct. In so doing, the courts are creating substantial incentives for gun owners and sellers to alter their behavior in a.phplife-saving direction. In the long run, this incremental movement of the common law toward broader accountability may have as great an impact on.phpgun violence as any new legislation.

Owner Liability

Approximately half of all U.S. households include a firearm. One of four of these weapons is a handgun.[1] Many of these.phpguns are easily accessible to children. One national survey found that over one-third of gun owners kept their guns loaded at home and more than.phphalf kept them unlocked.[2] These weapons are like ticking time bombs. The lethal combination of children and guns has.phpresulted in tragic accidental shootings. In 1991, 551 children and teens died in accidental shootings.[3]

Many courts have permitted recovery of damages by families of children victimized by people who stored guns carelessly. The most common theory.phpof liability is negligent entrustment, as set out in §308 of the Restatement (Second) of Torts.

It is negligence to permit a third person to use a thing . . . which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing . . . in such a manner as to create an unreasonable risk of harm to others.

The comments to this section leave no doubt that negligent entrustment can include leaving a gun accessible to a child:

The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble-minded adults.

The extreme dangerousness of firearms and their often magnetic attractiveness to children have led some courts to articulate a higher standard of care for gun possession than for possession of other potentially dangerous products. In Jacobs v. Tyson, the Georgia Court of Appeals held that leaving a loaded pistol in an unlocked dresser drawer accessible to a 12-year old could be actionable negligence.[4]

The court reached this conclusion despite an earlier Georgia appellate ruling denying liability for injuries inflicted with a butcher knife left accessible to a minor. According to the Jacobs court, a butcher knife "is not inherently likely to inflict serious bodily injury on another person unless it is intentionally used for that purpose or is handled in a reckless and dangerous manner," but a loaded firearm "may be considered an inherently dangerous instrumentality, in that . . . it can inflict serious bodily injury by 'going off' accidentally."[5] Thus, the court held, liability may be imposed even though the gun owner had no knowledge of the child's propensity for reckless behavior.

The two most important factors affecting the owner's liability are that the gun was stored loaded and that inquisitive children could easily gain access to it. However, storage of an unloaded gun under lock and key does not necessarily save the owner from liability.

In Reida v. Lund, for example, the California Court of Appeals reversed a summary judgment in favor of a gun owner who had locked his rifle and ammunition in a garage cabinet.[6] His 16-year-old son knew where he kept the key. Finding that a person "dealing with a weapon of this kind is held to the highest standard of due care" from which "even a slight deviation . . . may constitute negligence," the court held that a triable issue of fact existed as to the father's liability for his son's intentional, random shooting of motorists on a highway.[7]

Courts also have found that gun owners could be liable for negligent storage, even though they placed firearms in a relatively inaccessible place and instructed children to stay away from them. In Cathey v. Bernard, an appeals court reversed a judgment for defendant foster parents who had stored a pistol on a high shelf in a closet and instructed their nine-year-old not to go into the closet. Finding that possession of a loaded gun carried with it a duty of "extraordinary care," the Louisiana Court of Appeals found this duty not met by a "simple warning to the children that the pistol was off-limits and the placing of the pistol on a closet shelf. . . ."[8]

Retailer Liability

Gun violence victims and their families also have been successful in seeking damages from retailers who sold guns illegally or negligently. These lawsuits have enormous potential to deter irresponsible behavior.

The doctrine of negligence per se has been invoked by a number of courts in finding gun dealers liable in damages to victims for sales that violate local, state, or federal gun control laws. Generally speaking, courts will find the violation of a statutory duty to be negligence per se if (1) the injured plaintiff is a member of the class of people the statute is intended to protect and (2) the injury is the kind the statute was intended to prevent.

For example, in Rubin v. Johnson, an Indiana appeals court held that a pawnshop could be liable in damages for selling a handgun in violation of a state law barring sales to someone whom the seller "has reasonable cause to believe . . . is of unsound mind."[9] The pawnshop sold an assault pistol to a diagnosed paranoid schizophrenic who said he wanted it for hunting. The plaintiff's expert testified that the gun was unsuitable for hunting. The buyer may have commented during the purchase that the "streets were getting bad," and he had acted erratically during earlier visits to the shop. Six months after the purchase, the buyer shot and killed David Johnson, whose family brought suit against the pawnshop.

Applying the negligence per se doctrine, the court found that "as a member of the general public," Johnson was among those intended to be protected by the statute and that his death was "exactly the risk of harm the legislature attempted to minimize" in enacting the law. In rejecting the pawnshop's argument that the shooting was an intervening criminal act that should relieve the shop from liability, the court reasoned that "because the criminal, irresponsible, and unpredictable use of handguns is the very risk sought to be avoided under [the statute], the realization of this risk cannot stand as a bar to recovery."[10]

The negligence per se doctrine also has been held to apply to illegal gun sales to minors. Federal law and most state laws prohibit selling handguns to those under 21 years old and long guns (rifles and shotguns) to those under 18.

In one Virginia case, the family of a shooting victim alleged that a gun-shop clerk sold a MAC-11 assault pistol to a 15-year-old boy who had used his adult cousin as a "straw purchaser."[11] The use of compliant adult proxies is a common means for minors and other prohibited buyers to obtain weapons. The jury awarded $105,000 to the victim's family, an award that was not appealed. The potential liability of dealers for facilitating straw sales promises to inhibit this practice.

The legal theory supporting retailer liability for sales to minors was explored in Crown v. Raymond.[12] The case involved a handgun sale to a 17-year-old girl who had presented a driver's license on which her age had obviously been altered. The next day, the girl committed suicide with the gun. Her family sued the dealer. The trial court granted summary judgment to the dealer, finding that the suicide was not a reasonably foreseeable result of the illegal sale. The Arizona Court of Appeals reversed, ruling that the gun dealer's violation of state law forbidding sales to minors could be negligence per se.

On the key issue of foreseeability, the court determined that the statute itself established the foreseeability of the injury by defining minors as inherently high-risk purchasers of handguns.[13] The gun shop's affidavit citing the girl's "cheerful" demeanor, the court ruled, would have been relevant had she been an adult. However, since the legislature already had determined the foreseeability that some harm would result from a handgun sale to a minor, her conduct during the transaction was held not decisive.

In both Rubin and Crown, the sellers arguably had reason to believe they were selling a gun to a high-risk buyer. In some cases, however, courts have recognized damages liability for violations of gun control laws even though the dealer had no reason to believe the buyer fell into a high-risk or prohibited category.

For example, in K-Mart Enterprises of Florida v. Keller, a K-Mart clerk violated federal law by failing to require the purchaser to complete federal form 4473.[14] The clerk filled out the form for the buyer who, as the subject of a felony indictment and an illegal drug user, was a prohibited buyer under federal law. The clerk answered "no" to the form's questions about criminal history and drug use. There was no evidence that the clerk knew of the buyer's prohibited status. Six weeks after the sale, the buyer gave the gun to his alcoholic brother, who shot and seriously wounded the plaintiff police officer.

The court affirmed a jury verdict against K-Mart, citing the buyer's testimony that had he filled out the federal form himself, he would have answered its questions truthfully and the sale would not have been made. The court rejected K-Mart's argument that because of the unforeseeable intervening circumstances leading to the shooting, the sale of the gun could not have been the proximate cause of the injury.

Invoking the rule that liability does not require that the exact series of events leading to the injury be foreseeable, the court held that "the jury could properly have found the shooting of Keller was the type of harm, or 'within the risk' designed to be prevented by the Gun Control Act – the misuse of a firearm by an irresponsible purchaser. . . ."[15]

To explore the potential for liability, it is critical that attorneys who represent gun violence victims "follow the gun" to discover how it got into the shooter's hands. Police investigators can request a trace of a gun by the Bureau of Alcohol, Tobacco and Firearms, an agency of the U.S. Department of the Treasury. The trace usually will identify the licensed dealer who sold the gun, when it was sold, and who purchased it. By obtaining that information, counsel will be in a position to scrutinize the retail transaction for evidence of possible violations of local, state, or federal laws.

Is there a basis for retailer liability in the absence of an illegal sale? Courts differ. In Buczkowski v. McKay, the Michigan Supreme Court reversed a substantial jury verdict against K-Mart for selling shotgun shells to an intoxicated buyer. The court reasoned that, because the buyer did not fall within a class of purchasers defined by the legislature as incompetent to buy guns, the store violated no duty of care.[16]

Other courts, invoking the doctrine of negligent entrustment, have held gun retailers to a duty to protect the public from sales to high-risk buyers, regardless of whether the sale violates a statute. For example, in Phillips v. Roy, the Louisiana Court of Appeals reversed a summary judgment in favor of a dealer who had sold a gun to a mentally incompetent person. "In view of the dangerous instrumentality involved and its demonstrated potential for harm. . . ," the court held the dealer to a duty "to carefully observe the customer for any indication of incompetence and to refrain from selling a weapon to an individual manifesting signs of instability."[17]

Similarly, in Jacoves v. United Merchandising Corp., a California appeals court held that "if, during the normal course of the purchasing process, the seller knows or has reason to know that the purchaser is likely to be a danger to himself, or others, the seller has a duty to decline to sell the firearm."[18]

Although K-Mart escaped liability in Buczkowski, a Florida jury awarded a large amount against the company in a case involving sale of a gun to a buyer who was intoxicated.[19] The verdict has been appealed.

The key to recovery for the victim in these cases is proving that the clerk had reason to believe that the purchaser was likely to be dangerous. Specific remarks or conduct suggesting intoxication or mental impairment are generally regarded as more probative than general observations of appearance.

In Jacoves, allegations that the 10-year-old buyer of a rifle "appeared youthful, confused, distraught, and trembling" were held insufficient to state a cause of action against the seller for the buyer's suicide, which occurred later the same day. In contrast, the buyer's failure to personally fill out federal form 4473 at the time of purchase was cited by the Phillips court as potentially probative of mental incompetence.

In a particularly far-reaching decision, the Ohio Court of Appeals recently suggested that those involved in the commercial sale of guns owe a common law duty to the general public to secure their guns against theft. In Pavlides v. Niles Gun Show, Inc., the court reversed a summary judgment in favor of a gun show promoter who had been sued by two shooting victims.[20] The handguns used in the shooting had been stolen by a group of teenagers who had been allowed to attend the defendant's show. The defendant argued that the teenagers' illegal behaviors in stealing the guns and then shooting the victims were superseding causes of the injuries, cutting off the defendant's liability. The court held that the gun show could be liable because both the thefts and the shootings were foreseeable consequences of the defendant's conduct in allowing minors entry into the show and failing to require exhibitors to secure guns against theft.

"In view of today's society," the court wrote, "reasonable minds certainly could conclude that unsecured firearms present an attractive if not irresistible lure to children."[21]

Given the lure of guns to high-risk people generally, the court's reasoning could be extended to support a broad duty of all gun dealers – even all gun owners – to secure their guns against theft. Pavlides offers an excellent example of how victims, by asserting their legal rights, can establish rules of law that could result in dramatically enhancing public safety.

Manufacturer Liability

Past attempts by victims to hold gun manufacturers liable for violence were unsuccessful, largely because plaintiffs tried to apply traditional products liability principles to claims that were not really products liability claims. For instance, the courts repeatedly have rejected the argument that because the risks of handguns to society far outweigh their benefits, handguns are "defective" as contemplated by §402 A of the Restatement (Second) of Torts.[22] In these cases, it was decisive that plaintiffs made no allegation that there was anything "wrong" with the handguns. Indeed, they inflicted injury because they had accomplished their intended purpose all too well. While rejecting application of §402 A to the manufacturer and sale of handguns, the Maryland Court of Appeals in Kelley v. R.G. Industries recognized a new strict liability cause of action against manufacturers of "Saturday Night Specials." The court found that these guns – characterized by short barrels, easy concealability, and poor quality – were "particularly attractive for criminal use and virtually useless for the legitimate purposes of law enforcement, sport, and protection of persons, property, and businesses."[23]

The court found the application of strict liability appropriate because:

the manufacturer or marketer of a Saturday Night Special knows or ought to know that the chief use of the product is for criminal activity. Such criminal use, and the virtual absence of legitimate uses . . ., are clearly foreseeable by the manufacturers and sellers of Saturday Night Specials.[24]

Other courts have refused to follow Kelley in creating a new strict liability cause of action for these handguns.[25] The Kelley decision itself was superseded in Maryland by subsequent legislative action that banned the guns.[26]

However, in a series of cases recently filed in California state court, victims of gun violence are again seeking to impose liability on the sale of guns and related products that have no legitimate use buy are particularly well suited for violent criminal assault.[27] The cases arose from the July 1, 1993, mass shooting at the Pettit & Martin law firm and other offices in a downtown San Francisco office building. In that incident, a disgruntled former client went on a shooting rampage with two TEC-DC9 assault pistols equipped with 32 and 50-round ammunition magazines. In a matter of minutes, he killed eight people and wounded six.

The lawsuits do not focus on an alleged "defect" in the gun, as in products liability, but on the manufacturer's conduct in selling assault weapons to the general public instead of confining sales to the military or the police. The suits charge that semi-automatic assault weapons like the DC9 have no legitimate sporting or self-defense purpose but are particularly well adapted to a military-style assault in which the object is to shoot as many people as possible in the shortest period of time.

The suits also charge that the manufacturer, Intratec, has advertised the gun in a manner calculated to appeal to those with violent intentions. The company uses the slogan "As tough as your toughest customer" and emphasizes that the gun's finish provides "excellent resistance to fingerprints." Other defendants include the manufacturer of the high capacity magazines, the manufacturer of a trigger attachment that accelerates the rate of fire, and a pawnshop that sold one of the TEC-DC9s.

The suits charge that because manufacturers knew or should have known that these products have no legitimate use and are particularly well adapted to military-style assaults on people, sales to the general public violate a duty of care and constitute actionable negligence.

The suits further allege that selling these products is an ultrahazardous activity for which the sellers should be held strictly liable. The case for liability has been strengthened by recent legislation passed by the U.S. Congress banning the possession and sale of some new assault weapons and high-capacity magazines.[28] Assault weapons and trigger accelerators had previously been banned in the state of California.[29]

In the Intratec cases, victims seek to establish basic principles of accountability for an industry with a history of producing extremely destructive products. The suits support the principle that placing these products into the stream of commerce is just as irresponsible as leaving a gun accessible to a child or selling a gun to a prohibited buyer.

Whether brought against gun owners, retailers, or manufacturers, victims' litigation shares a common premise: that the extreme danger of firearms implies important legal obligations for those who own or sell them. "I didn't pull the trigger" should not be a sufficient excuse for conduct that leads to violence.

1. Handgun Ownership in America, The Gallup Poll Monthly, No. 308, May, 1991, at 42-44.
2. Douglas S. Weil and David Hemenway, Loaded Guns in the Home – Analysis of a National Random Survey of Gun Owners, 267 Journal of American Medical Association 22 (1992).
3. Unpublished data on 1991 firearm death rates, available in National Vital Statistics System database, National Center for Health Statistics.
4. 407 S.E.2d 62, 63-64 (Ga. Ct. App.), cert. denied, 1991 Ga. LEXIS 553 (Ga. Sept. 6, 1991).
5. Id. at 64 (emphasis in original).
6. 96 Cal. Rptr. 102 (Ct. App. 1971).
7. Id. at 105. See also Spivey v. Sheeler , 514 S.W. 2d 667 (Ky. 1974) (gun owner may be liable for leaving loaded guns locked in gun case with key on top of case).
8. 467 So. 2d 9, 11 (La. Ct. App. 1985).
9. 550 N.E2d 324 (Ind. Ct. App. 1990).
10. Id. at 332-33.
11. Farley v. Guns Unlimited, No. CL89-2047 (Cir. Ct. Va. Beach Jan. 16, 1992).
12. 764 P.2d 1146 (Ariz. Ct. App. 1988).
13. Id. at 1149.
14. 439 So. 2d 283 (Fla. Dist. Ct. App. 1983), review denied, 450 So. 2d 487 (Fla. 1984).
15. Id. at 286.
16. 490 N.W.2d 330, 355 (Mich.), rehearing denied, 491 N.W. 2d 830 (Mich. 1992).
17. 431 So. 2d 849, 852 (La. Ct. App. 1983).
18. 11 Cal. Rptr. 2d 468, 487 (Ct. App.), review denied, 1992 Cal. LEXIS 3928 (Cal. Nov. 25, 1992).
19. Kitchen v. K-Mart, No. CL 91-9095 (Fla. Cir. Ct. Oct. 9, 1993).
20. 637 N.E. 2d 404 (Ohio Ct. App.), dismissed, 635 N.E. 2d 43 (Ohio, 1994).
21. Id. at 409.
22. See, e.g., Delahanty v. Hinckley, 564 A.2d 758, 760-61 (D.C. 1989); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1271-72 (5th Cir.), rehearing denied sub nom., Richman v. Charter Arms Corp., 768 F.2d (5th Cir. 1985) (en banc); Riordan v. International Armament Corp., 477 N.E. 2d 1293, 1298 (Ill. App. Ct. 1985).
23. 497 A.2d 1143, 1154 (Md. 1985).
24. Id. at 1159.
25. See King v. R.G. Indust., 451 N.W. 2d 874 (Mich. Ct. App. 1990); Delahanty, 564 A.2d 758; Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661 (Wash. Ct. App.), review denied, 110 Wash. 2d 1024 (1988).
26. Md. Ann. Code art. 27, §36-1(h) (1992).
27. Scully v. Navegar, Inc., No. 960936 (S.F. County Super. Ct. May 18, 1994); Sposato v. Navegar, Inc., No. 960937 (S.F. County Super. Ct. May 18, 1994); Merrill v. Navegar, Inc., No. 960938 (S.F. County Super. Ct. May 18, 1994); Kingsley v. Navegar, Inc., No. 96040 (S.F. County Super. Ct. May 18, 1994); Ernsting v. Navegar, Inc., No. 962044 (S.F. County Super. Ct. June 30, 1994).
28. Violent Crime Control 2d Law Enforcement Act of 1994, Pub. L. No. 103-322 §110101 (codified at 18 U.S.C. §922(v)).
29. Cal. Penal Code §12275-12290 (West 1992); Cal. Penal Code §12020 (West 1992).