In 2012, Janet Delana called a pawn shop in Odessa, Missouri, and begged an employee not to sell a gun to her suicidal, schizophrenic daughter. She told the worker at Odessa Gun & Pawn Shop that 41-year-old Colby Sue Weathers had been suffering from severe delusions and had purchased a pistol from the store a month earlier with the intention of killing herself — but her father had found and discarded the weapon. According to court documents, Delana asked the employee to keep a note with Weathers’s identifying information next to the register so that if she returned, the clerk on duty would know not to sell her a firearm.
Missouri law allows gun sellers to refuse a sale, for any reason. But the employee told Delana that he couldn’t make any promises. Two days later, the pawn shop sold Weathers a Hi-Point .45-caliber pistol, which she then used to shoot and kill her father.
Delana sued the pawn shop, alleging that it had violated a Missouri statute that says a gun store can’t sell a weapon to a person who is mentally unfit. Her case, brought with the help of the Brady Campaign to Prevent Gun Violence, faced steep odds because of the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 law that immunizes gun manufacturers and dealers from most negligence suits. It seemed Delana’s case would suffer the same fate, when, last April, a trial court judge dismissed the negligence claim.
But on Wednesday, after considering the case on appeal, the Missouri Supreme Court determined that the case could proceed to jury trial — one of the few gun seller negligence cases to do so since PLCAA was enacted. The court ruled that while Delana couldn’t bring a general negligence claim against the gun shop, the lawsuit could proceed with a “negligent entrustment” claim. The seven-judge panel was unanimous in its decision.
At first glance it may seem like there is little distinction between “negligence” and “negligent entrustment.” But legal experts say there is a critical difference: foreknowledge. Alla Lefkowitz, a staff attorney at the Brady Campaign who is representing Delana, tells The Trace that negligence occurs when someone has a duty to do something, but fails to exercise that duty.
Negligent entrustment adds another element, and applies when the person who supplies a dangerous item, such as a firearm, knows or has a reason to know that the recipient is likely to use it in a way that exposes herself or others to danger. Essentially, Delana’s lawsuit argues that the gun shop was warned about Weathers’s mental illness and suicidal intent but it entrusted the gun to her daughter anyway, resulting in tragedy.
It is rare for a negligent entrustment case to clear the PLCAA threshold, but not unheard of. In the only gun-liability lawsuit to win a jury verdict since PLCAA’s passage, nearly $6 million was awarded to two police officers who were seriously injured with a handgun that a gun shop in Milwaukee, Wisconsin, sold to an obvious straw buyer in 2009.
A negligent entrustment claim was also allowed to proceed in a 2005 suit against the owners of Baxter Gun & Pawn in Baxter Springs, Kansas. In that case, a woman sued the shop’s owners, arguing that they were told her ex-husband was a convicted felon and had allowed his grandmother to fill out the background check forms. The man later killed their 8-year-old son. The case was dismissed by a trial court but the Kansas Court of Appeals unanimously reversed the dismissal. The case was settled in 2015.
Most prominently, a negligent entrustment claim is being made by the families of the victims of the Sandy Hook shooting in their lawsuit against Bushmaster Firearms, which manufactured the assault-style rifle used in the massacre. They argue that the weapon was designed for the military and never should have been “entrusted” to civilians.
The legal theory of negligent entrustment is not the only exception to PLCAA. According to the Law Center to Prevent Gun Violence, a nonprofit that offers legal assistance in gun violence prevention cases, there are five more, including an exception for when someone transfers a gun knowing it will be used in a criminal act, and when someone is injured because of a design defect.
In addition to Delana’s negligent entrustment action, the Missouri high court ruled that a separate personal liability claim against the shop’s owners can proceed.
Kevin Jamison, one of the attorneys representing the Odessa Gun & Pawn Shop, tells The Trace that the court’s decision to disregard two previous rulings that held that negligent entrustment claims are not allowed under Missouri law “was quite a shock.” He says Odessa’s legal team is prepared to go to trial, and that “our evidence is going to be better than the court imagined it would be.”
Jamison says that it is too much to ask of a store clerk to gauge whether a caller is credible or not. “If you just believe the anonymous voice on the phone, and if you follow that advice, you’re interfering with the customer’s rights without any evidence.”
He also says that the court “seems to assume that because of Ms. Weathers’s mental problems, she must have been acting crazy when she was in the shop,” he says. “That simply was not the case.”
It’s not clear what role this argument will play at trial. Delana’s lawsuit hinges on an argument that the gun shop was told that Weathers was mentally incompetent — not that she was acting erratic.
Lefkowitz, Delana’s attorney, says she is happy to have a jury consider the case. “That’s what this is all about — the opportunity to be heard in court. I think that’s one of the greatest injustices of PLCAA — the fact that it puts extra hurdles in front of gun violence victims.”
It’s a hurdle that doesn’t exist for plaintiffs seeking redress from other types of businesses, she says. “PLCAA provides an extra level of protection just to gun dealers, and there’s no reason for it.”
A bill introduced by Democratic lawmakers in January seeks to repeal PLCAA. Both the House and Senate versions are currently stalled in committee.
[Photo: Google Maps]