It went largely unnoticed, when the Missouri Supreme Court on April 5, 2016, unanimously reinstated a lawsuit, in reality brought by the Brady Campaign, that a dealer can be sued under a theory of negligent entrustment without the protection of the Protection in Lawful Commerce in Arms Act (PLCAA – 15 U.S.C. § 7901, et seq), by a mother, where she called the store several days prior and asked the store not to sell a gun to her daughter but where the store sold the firearm in compliance with state and federal law and the daughter used the firearm to kill her father.
While the facts are no doubt heart-wrenching, the decision by the Missouri Supreme Court will have FAR reaching implications – many of which, it likely never considered. But before I discuss those, let’s first understand the reason that this case was brought as a negligent entrustment matter.
Under Section 7903(5)(a)(ii), “an action brought against a seller for negligent entrustment or negligence per se” is specifically excluded from the protections of the PLCAA. Hence, the Brady Campaign has decided to exploit this exemption for its personal agenda. However, the issue in Missouri was that the state never recognized a negligent entrustment action and all other claims would be barred by the PLCCA. As a result, the trial court a dismissed the complaint both under the PLCAA and that Ms. Delana’s negligent entrustment was not a recognized claim in Missouri.
In finding that Missouri law does provide for negligent entrustment, the Court went on to define exactly what negligent entrustment was:
negligent entrustment occurs when the defendant “supplies” a chattel to another with actual or constructive knowledge [and the Court later included that knew or should’ve known was sufficient] that, “because of youth, inexperience or otherwise,” the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm.
Now, take a minute and think about that definition and its far reaching implications…
Under this definition, does a car salesman now have an obligation to research whether a buyer has a past history of DUI? If he/she doesn’t check the buyer’s criminal history, it would seem, at least in Missouri, that the salesman can now be held liable under negligent entrustment, under the language “knew or should’ve known,” if the buyer later goes out, gets drunk and causes harm while driving under the influence.
What about the bartender? Does a bartender have an obligation to review a customer’s past criminal history for any information tending to suggest that the individual gets inebriated and starts fights or drives under the influence? Again, it would seem that such may now be required, at least in Missouri.
What about a doctor? Does a doctor have an obligation to review a patient’s criminal history to see if there is inform to suggest that the patient uses prescription drugs in an unlawful manner?
In all of the above scenarios, I mentioned performing a criminal history check. In the decision by the Missouri Supreme Court, there is NO dispute that the dealer conducted the requisite background check and the purchaser was NOT prohibited. Thus, it would seem that even checking one’s criminal history is not sufficient and may require even more inquiry.
In those examples, would the salesman, bartender or doctor have an obligation to call family members in conducting their background research? What about neighbors? Where does it end?
Unfortunately, after the Missouri Supreme Court decision, the dealer settled the action for $2.2 million, instead of fighting the absurd claims made by Ms. Delana and the Brady Campaign.
If you or your company is ever sued in relation to the mere sale of a firearm, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., is prepared to zealously defend you, including pursuant to the PLCAA. We aren’t fearful of organizations like the Brady Campaign and will stand by your side in these trying times.