JURIST contributing editor Allen Rostron of the University of Missouri-Kansas City School of Law discusses recent developments in lawsuits seeking to impose tort liability for negligent sale of firearms. While gun dealers continue to face a substantial risk of liability for negligence, gun manufacturers enjoy a higher degree of immunity…

Fifteen years ago, the gun industry faced a nation-wide wave of lawsuits. Today, gun companies are no longer under the same degree of legal pressure, thanks in large part to a federal law [PDF] that gives the industry a special immunity from liability in many instances. The recent settlement of a case against a Missouri gun store for $2.2 million shows that tort litigation remains an important way to hold firearm dealers responsible for practices that are unreasonably and unnecessarily dangerous. However, the dismissal of a case brought against a gun manufacturer by families of the Newtown shooting victims illustrates that it remains more difficult to hold manufacturers accountable.

The Missouri case arose out of a tragic set of circumstances that led a troubled young woman to kill her father. According to the allegations [PDF] in the case, Colby Sue Weathers had a long history of mental illness and substance abuse. In May 2012, she was suicidal and suffering from intense hallucinations, but managed to purchase a pistol from a gun store in Odessa, Missouri. She planned to kill herself with it, but her parents found out and disposed of the gun.

A month later, as Weathers’ mental condition continued to deteriorate, her mother called to warn the gun store about Weathers’ mental illness, her suicidal tendencies, and the fact that Weathers would soon be receiving a Social Security check, and was likely to come back to the store to purchase another gun with those funds. Weathers’ mother begged the gun store not to sell Weathers another gun, even giving the store her daughter’s name, date of birth and social security number and asking that the information be posted near the cash register so that all of the store’s employees would know about the situation.

According to the allegations in the case, the gun store refused to take any special precautions. Two days later, Weathers walked into the store and purchased a pistol. She then drove home, loaded the weapon, and used it to kill her father.

Weathers is now confined and receiving care at a state psychiatric hospital. With the help of Missouri lawyers aided by the Brady Center to Prevent Gun Violence, her mother filed a lawsuit against the gun store.

To succeed on tort claims about the sale of a firearm, lawyers must find a way to navigate around the Protection of Lawful Commerce in Arms Act [PDF], a federal statute that generally preempts claims for harm caused by criminal misuse of firearms. The Act contains a few exceptions. In the Missouri case, the plaintiff’s attorneys focused on the exception for negligent entrustment claims. Negligent entrustment is a longstanding and widely recognized type of tort claim, covering situations where the defendant provides a dangerous instrument to a person despite knowing or having reason to know the person cannot be trusted with the instrument and is likely to cause harm to others. For example, the owner of an automobile could be negligent for allowing it to be used by a terribly dangerous driver.

The Missouri case seemed like a good fit for the negligent entrustment exception, for the store allegedly provided a gun to Weathers despite knowing or having reason to know she should not be trusted with it. Precedent in Missouri was not favorable for the plaintiff’s side, however, for some past court decisions in Missouri had suggested that liability for negligent entrustment does not exist if one sells or otherwise transfers ownership of an item, rather than merely allowing the dangerous person to temporarily use it. In other words, liability could exist if one lends a car to a horribly dangerous driver, but not if one sells the car to that person.

Based on those precedents, the trial court dismissed the case. The Supreme Court of Missouri reversed, overruling the past cases and recognizing that negligent entrustment can apply where an item is purchased by a dangerous person rather than just temporarily borrowed.

With the claim revived by that legal victory, the case moved forward until the gun store recently agreed to pay $2.2 million to settle it. The settlement demonstrates how even after the enactment of the federal preemption statute, tort litigation remains a potent tool for ensuring that gun dealers conduct business with reasonable care.

But, while the case shows how those who sell guns at the retail level face a substantial risk of liability for careless practices, the federal law continues to give gun manufacturers a broad and unwarranted exemption from legal responsibility for their actions. Since manufacturers sell through distributors and dealers, rather than directly through the public, they have had a hard time convincing courts that any of the federal preemption statute’s exceptions should apply.

A lawsuit brought by families of the Newtown shooting victims provides a striking example. Four years ago, a disturbed young man used an AR-15 style rifle when he murdered twenty children and six staff members at Sandy Hook Elementary School in Newtown, Connecticut. Families of the victims sued [PDF] the manufacturer of that rifle, as well as the wholesale distributor and retail dealer who sold it. This fall, a Connecticut judge dismissed the case against the manufacturer, concluding that the case could not fit within the negligent entrustment exception or any of the other exceptions provided under the federal immunity statute.

The Connecticut Supreme Court will hear an appeal of that ruling. If they do not reverse it, the case will serve as another example of how the federal immunity statute remains an unfortunate obstacle for those seeking to hold gun-makers accountable under normal principles of tort law. If the manufacturer of the rifle acted negligently, it should be responsible for the harm caused by that negligence. If it did not act negligently, it should prevail in the case on that basis, not because of a special immunity from tort law bestowed on one industry by Congress.

Allen Rostron is Associate Dean for Students and the William R. Jacques Constitutional Law Scholar and Professor of Law at the University of Missouri-Kansas City School of Law and a former senior staff attorney for the Brady Center to Prevent Gun Violence.

Suggested citation: Allen Rostron, Tort Litigation About Guns Will Continue, JURIST – Academic Commentary, December 31, 2016, http://jurist.org/forum/2016/12/allen-rostron-tort-litigation-about-guns-will-continue.php.