Recently the Supreme Court of Missouri held that The Protection of Lawful Commerce and Arms Act (“PLCAA”) preempts a negligence claim but allows a correctly pled negligent entrustment action against a firearm seller. Thus, the PLCAA is not only a hot political topic being discussed by the Presidential Candidates, but also one that is being litigated within the legal system.
In Delana v. Ced Sales, Inc., d/b/a Odessa Gun & Pawn, et al., (2016 WL 1357209 (MO en banc April 6, 2016, not released for publication) defendant Odessa Gun & Pawn (“Odessa) sold a firearm, to a mentally ill child of the plaintiff, Janet Delana, which the child used to kill her own father. Plaintiff telephoned Odessa and asked the store manager, Derrick Dady, to refrain from selling a gun to her daughter, who was severely mentally ill and should not have a gun. Plaintiff also told Mr. Dady that her daughter had purchased a gun at Odessa the previous month and attempted to commit suicide, and said, “I’m begging you, I’m begging you as a mother, if she comes in, please don’t sell her a gun. Two days later, Mr. Dady sold her a gun and ammunition which she used within an hour to kill her father.
Janet Delana sued Odessa for negligence, negligent entrustment, and negligence per se. The trial court entered summary judgment for the defendants, holding that the PLCAA was constitutional and preempted plaintiff’s negligence claim, and that although the PLCAA provides an exception for negligent entrustment actions, Missouri law does not recognize a cause of action for negligent entrustment against sellers.
The Missouri Supreme Court held that the PLCAA is constitutional, that the negligence claim was preempted by the PLCAA, but that the negligent entrustment action was not preempted. Delana, 2016 WL 135709, at *6. The PLCAA expressly provides that negligent entrustment actions are “not preempted.” However, there must be a state law claim that can be asserted if it is to fall within the definition of a negligent entrustment claim provided under the PLCAA. PLCAA defines non-preempted negligent entrustment actions as involving:
“the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” 15 U.S.C. section 7903(5)(C).
In Delana, the mother alleged that the gun dealer sold the gun to her daughter with knowledge that the daughter would likely use the gun in the manner that would pose an unreasonable risk of physical harm to herself or others. Missouri law defines a tort of negligent entrustment with reference to section 390 of the Restatement (Second) of Torts, which states that negligent entrustment occurs when the defendant “supplies” a chattel to another with actual or constructive knowledge 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. Thus, under Missouri law a seller is liable for selling a dangerous item with knowledge that the buyer is unlikely to safely possess the item.
The Delana holding is consistent with other jurisdictions in cases involving the sale of firearms. Therefore, gun dealers who have information about a buyer that would lead one to believe that the buyer may cause harm with the firearm should not make the sale. For more information on this topic, please contact Joe Guffey.