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[Opinion]

Negligent Entrustment of a Firearm

Provoking thought on a claim rejected.

By Jefferson W. Fisher


Consider this legal principle:

“An owner who lends a [ ] to another, knowing that the latter is an incompetent, reckless, or careless [operator], is liable for such person’s negligence; the owner’s liability in such cases is based upon his own negligence in entrusting the [ ] to such a person.”1

In Texas, fill in the blank with automobile and you’ll find Texas Supreme Court precedent, lower court guidance, secondary sources, blogs, and attorney ads. Even horse, boat, forklift, tractor, or golf cart would suffice.2 But one word triggers a wholly different analysis: firearm.

Firearm is a word that now tends to divide absolutely—those who argue for more and those who argue for less. Whichever side of the fence you’re on, firearms have undoubtedly impacted our socioeconomic attitudes. The U.S. suffered 346 mass shootings in 2017; that’s a shooting involving four or more people.3 Twenty-two of those shootings were in Texas. The Sutherland Springs First Baptist Church attack resulted in 27 deaths last year. And recently, the horrific events at Santa Fe High School claimed the lives of eight students and two teachers. The 17-year-old shooter used a shotgun and .38 caliber revolver—both of which were legally owned by his father.4 In response to the shooting, Lt. Gov. Dan Patrick stated at a news conference, “Your children should not be able—or anyone else—to get your legally owned guns.”5

But what if they do?

This article targets a seldom-spoken-of and unexplored claim in Texas that warrants civil, meaningful dialogue: negligent entrustment of a firearm.6

 

Negligent Entrustment of an Automobile
A discussion on negligent entrustment of a firearm first requires observation of its close cousin: negligent entrustment of an automobile. Texas courts have recognized negligent entrustment of an automobile since the 1930s. In Seinsheimer v. Burkhart, the court made its ruling based on what it considered to be a sound principle: when Seinsheimer allowed a young boy to drive her automobile, who later ran into Zora Ann Burkhart, Seinsheimer was also liable for her own negligent act of entrustment.7 Eight years later, the Texas Supreme Court addressed a similar issue in Mundy v. Pirie-Slaughter Motor Co. with the addition of a new factor—the driver’s license.8 The court held that the lack of a driver’s license was a determinative factor in a driver’s incompetence.

Today, a wealth of Texas caselaw has distilled negligent entrustment of an automobile into a workable standard. A claimant must show that (1) X entrusted the vehicle to Y; (2) Y was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, X knew or should have known that Y was an unlicensed, incompetent, or reckless driver; (4) Y was negligent on the occasion in question; and (5) Y proximately caused the accident.9

This legal test came without objection or appeal to morality, protection, or patriotism; much unlike the undertones of firearms, such as a handgun. Pragmatically, however, the association between automobiles and handguns is not all unrelated.

 

Automobiles and Handguns
Texas requires a driver’s license in order to operate a car. Why? Because a license’s “principal purpose is to ensure a minimum of competence and skill on the part of drivers for the protection of persons who might be injured or have their property damaged by negligent or reckless operation of motor vehicles on the highways.”10 The driver’s license also exists partly to prevent the lending of automobiles to people shown by examination of the state to be incompetent to drive.

Likewise, carrying a handgun openly or concealed in Texas requires a license.11 Why? To show proficiency; to show experience; and to show competence. A license requirement represents the government’s interest in safeguarding the public, as well as the disfavored transfers of handguns to unfit persons.

Automobiles and handguns also include distinct uses and dangers. An automobile, albeit very capable of causing harm, is intended as a safe vehicle for transportation. A handgun, on the other hand, was arguably created for harm. One court succinctly recognized this distinction by noting “using a car to run someone down is not what one normally does with a car. However, while shooting someone may not be what everyone with a firearm does, [it is] arguably the intended usage of the instrumentality.”12 Similarly, an automobile is widely accepted as a dangerous instrumentality.13 But a firearm is an inherently dangerous instrumentality.14 Both instruments are capable of inflicting damage; both can certainly inflict death. These characteristics are foundational to their responsible possession and use.

A claim for negligent entrustment reflects a societal concern. That is, those with a dangerous instrument should bear the responsibility of using care when entrusting that instrument to another person. The logic follows that those people found responsible enough to operate a car, or openly carry a handgun, are given a license; those licensed operators of automobiles and handguns have a duty to exercise the high degree of care that corresponds with the level of danger; placing a duty on those who own the chattel to entrust their chattel responsibly saves lives. And we all like saving lives.

 

Other State Courts
So here comes the question—if Texas agrees that you shouldn’t negligently entrust an automobile, boat, or golf cart, should the same legal principles apply to a firearm?

“Yes” say the supreme courts of 35 states and the District of Columbia, all of whom have acknowledged or affirmed the cause of action.15 The Supreme Court of Alabama flatly held that “[t]he elements of a cause of action for negligent entrustment of an automobile and negligent entrustment of a firearm . . . are the same.”16 In 2015, the Supreme Court of Utah acknowledged the claim as an issue of first impression under the same methodology of automobiles.17 Later, the Supreme Court of Missouri formally recognized the cause of action in 2016.18

 

Texas Cases
“The Texas Supreme Court,” meanwhile, “has not yet spoken on the issue of negligent entrustment of a firearm.”19 In fact, Texas caselaw has been silent on the issue but for two appellate decisions in 1984 and 1998, as well as a memorandum opinion in 2011. The Texas Supreme Court denied petition for review each time.

In Kennedy v. Baird, the plaintiffs brought a negligent entrustment action against a father for the acts of his adult son, who shot at the plaintiffs with the father’s rifle.20 After noting that at the time of its writing “there [was] no prior precedent in Texas to establish a negligent entrustment of a firearm cause of action[,]” the 8th Court of Appeals in El Paso mentioned, “[h]owever, Texas has long had a cause of action for negligent entrustment of an automobile.” The court also used the underlying rationales of Restatement (Second) of Torts.21 Ultimately, the plaintiffs’ claim failed due to insufficient evidence that the father had “actual knowledge . . . of his son’s propensity to commit the act complained of or to use the rifle dangerously[,]” so as to foresee the likelihood of danger in entrusting the rifle.

The defendant in Prather v. Brandt committed a drive-by shooting with a shotgun given to him by his father for Christmas.22 Citing Kennedy, the 1st Court of Appeals in Houston based its ruling on the same rationales of negligent entrustment of an automobile and the Restatement (Second) of Torts. The court found that the plaintiff did not show that the father knew or should have known that his son “was incompetent, reckless, or otherwise likely to act negligently with the shotgun.” For this reason, the court held that the claim of negligent entrustment of the shotgun failed. The Texas Supreme Court denied the petition for review.

In Richardson v. Crawford, a wife murdered her husband with a handgun that she took from a coworker’s desk drawer.23 The coworker had told her that she could use his revolver whenever she needed it for protection. Evidence revealed that she had previously told the coworker about her unhappiness with her marriage and her prior affairs with other men, along with her drug dependency. She did not have a handgun license. The husband’s family brought a negligent entrustment of a handgun claim against the coworker. Pointing to Kennedy and Prather, the 10th Court of Appeals in Waco held that “[a]ssuming without deciding that appellee was negligent in leaving the gun in his desk for others at the office to use, appellants have not tendered evidence demonstrating that appellee knew or should have known that Gretchen would use his gun to shoot John.” That is, the court ruled that the plaintiffs’ claim failed because the coworker had no knowledge as to exactly whom the wife intended to shoot. The court also found that the lack of a license was not determinative of competence. The Texas Supreme Court denied the petition for review, and the case was not selected for publication.

Notably, the U.S. 5th Circuit Court of Appeals applied Texas law in an Erie24 determination involving a case against a police officer who stored his AK-47 in his son’s room.25 The officer allegedly knew his son to be “a psychologically unstable drug user that revered the Nazi ideology.” The son took the rifle and murdered the plaintiff’s family. Observing that “[t]he Texas Supreme Court has not yet spoken on the issue of negligent entrustment of a firearm,” the 5th Circuit relied upon Kennedy and Prather and remanded the case to examine the father’s knowledge of the son’s incompetency. “Under the circumstances of this case,” the 5th Circuit held, “we are confident that Texas courts would allow a negligent entrustment claim.” The case settled on remand, and the 5th Circuit’s prophesy remains unfulfilled.

Defining the Target
As with cases of negligent entrustment of automobiles, foreseeability is a decisive element. Texas cases involving negligent entrustment of an automobile frequently turn on the foreseeability of the driver’s incompetence; the issue never extends to whether the owner should have known that the incompetent driver could cause a car wreck. After all, bodily harm from a car accident is a foreseeable result of incompetent driving. The harm is a foreseeable result of its mere use.

But in each of the state appellate opinions of Kennedy, Prather, and Richardson, the courts seem focused on foreseeability of the specific act, as opposed to the general harm.

For example, in Richardson, the court required the firearm owner to actually have known that the wife would use the revolver to shoot her husband—as opposed to shooting just anybody. And the courts in Prather and Kennedy both held that the owners had no actual knowledge that their firearms would be used to commit the future shootings. These holdings appear to suggest a higher standard of foreseeability for firearms than automobiles, given that a firearm is inherently dangerous, and bodily harm is arguably the foreseeable result of even the most competent firearm use.

Of course, a person generally has no duty to prevent criminal acts of a third party.26 That is, unless the criminal conduct was foreseeable.27 In the case of automobiles, negligent entrustment has been upheld in Texas against owners who entrusted their vehicles to persons who committed the crimes of driving while intoxicated and vehicular manslaughter.28 Aside from evidence of a prior shooting or firearm incident, a scenario that meets the foreseeability standards set by Texas appellate courts for negligent entrustment of a firearm appears difficult to envision, regardless of any criminal conduct.

Perhaps the Texas Supreme Court will hear a case on the issue and join the 35 other state supreme courts in recognizing negligent entrustment of a firearm as a cause of action. The guidance would, at the least, be helpful to Texas practitioners. By no means does this notion suggest that recognition of the cause of action will iron every wrinkle. For at its base, the claim aims to promote accountability. Those owners who enjoy the autonomy to wield such weapons also have the duty to responsibly possess, operate, and entrust them.

According to the National Rifle Association, or NRA, gun safety rules, a gun owner should “[s]tore guns so they are not accessible to unauthorized persons.”29 This guideline seconds the same line of reasoning that a negligent entrustment of a firearm claim endorses: owners shouldn’t make their guns accessible to unauthorized, incompetent persons.

But what if they do?TBJ

 

Notes
1. Seinsheimer et al. v. Burkhart, 122 S.W.2d 1063, 1067 (Tex. Comm’n App. 1939, judgm’t reformed, affirmed).
2. See 4Front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905, 907 n.5 (Tex. 2016).
3. Mass Shootings in 2017, Gun Violence Archive, http://www.gunviolencearchive.org/reports/mass-shooting?year=2017.
4. Brian Ries & Veronica Rocha, The latest on the Texas school shooting, CNN (May 21, 2018, 7:46 PM), https://www.cnn.com/us/live-news/santa-fe-texas-shooting-investigation.
5. Michelle Mark, The Santa Fe shooting suspect used his father’s guns to carry out the attack, governor says, Business Insider (May 18, 2018, 3:49 PM), http://www.businessinsider.com/santa-fe-shooting-suspect-guns-shotgun-revolver-2018-5.
6. The family of one of the Santa Fe victims has now brought a suit against the shooter’s father for negligent entrustment of his firearms, among other claims. Rosie Yanas et al. v. Antonios Pagourtzis et al., No. CV-0081158 (Co. Ct. at Law No. 3, Galveston County, Tex. May 24, 2018). This article will not conjecture on the legal aftermath of Santa Fe, much less advance a position for more or less gun control. But lawyers aren’t immune from the conversation.
7. 122 S.W.2d 1063, 1067 (Tex. Comm’n App. 1939); See Restatement (Second) of Torts § 390.
8. 206 S.W.2d 587, 589 (Tex. 1947).
9. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).
10. See Mundy, 206 S.W.2d at 589; see also Tex. Rev. Civ. Stat. Ann. art. 6687(b) (recodified to Tex. Trans. Code Ann. § 521.025 (West 2011)).
11. See Tex. Gov’t Code Ann. § 411.172 (West 2016).
12. McGuiness v. Brink’s Inc., 60 F. Supp. 2d 496, 499 (D. Md. 1999) (examining the duty owed to the public at large when a dangerous instrumentality, such as a firearm, is involved).
13. See State v. Adkins, 40 Ohio App.2d 473, 476, 320 N.E.2d 308, 311 (7th Dist. 1973) (noting that “[t]he automobile is not inherently dangerous, but in the hands of a careless or reckless operator, an automobile may become a dangerous instrument.”); see also William E. Adams, Tort Law: 2005-08 Review of Florida Case Law, 33 Nova L. Rev. 21, 40 (2008) (discussing the dangerous instrumentality of vehicles); David Luria, Death on the Highway: Reckless Driving as Murder, 67 Or. L. Rev. 799, 827 (1988) (explaining that automobiles are capable of being used as a lethal weapon, “one often more deadly than a gun.”).
14. See McLaughlin v. United States, 476 U.S. 16, 16 (1986) (holding that even an unloaded handgun is a dangerous weapon); Prather v. Brandt, 981 S.W.2d 801, 806 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see also Robert H. Wood, Toy Guns Don’t Kill People—People Kill People Who Play with Toy Guns: Federal Attempts to Regulate Imitation Firearms in the Face of Toy Industry Opposition, 12 N.Y. City L. Rev. 263, 269 (2009).
15. See Reeves v. King, 534 So. 2d 1107, 1108 (Ala. 1988); Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 394 (Alaska 2013); Petolicchio v. Santa Cruz County Fair, 866 P.2d 1342, 1348 (Ariz. 1994); Hagerty v. Powers, 66 Cal. 368, 369 (Cal. 1885); Smith v. McCabe, 358 P.2d 1, 2 (Colo. 1960); Turner v. American District Telegraph & Messenger Co., 110 A. 540, 543 (Conn. 1920); Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1204 (Fla. 1997); Zaldivar v. Prickett, 774 S.E.2d 688, 699 (Ga. 2015); Ransom v. City of Garden City, 743 P.2d 70, 75 (Idaho 1987); Teter v. Clemens, 112 Ill. 2d 252, 258, 492 N.E.2d 1340, 1343 (Ill. 1986); Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 270 (Ind. 2003); Shirley v. Glass, 308 P.3d 1, 5, 297 Kan. 888, 893 (Kan. 2013); Spivey v. Sheeler, 514 S.W.2d 667, 670 (Ky. 1974); Jones v. Robbins, 289 So. 2d 104, 107 (La. 1974); Kiriakos v. Phillips, 139 A.3d 1006, 1031 (Md. 2016); Andrade v. Baptiste, 583 N.E.2d 837, 839 (Mass. 1992); White v. Chrysler Corp., 421 Mich. 192, 197, 364 N.W.2d 619, 623 (Mich. 1984); Delana v. CED Sales, Inc., 486 S.W.3d 316, 325 (Mo. 2016); DeWester v. Watkins, 745 N.W.2d 330, 335 (Neb. 2008); Stoelting v. Hauck, 159 A.2d 385, 389 (N.J. 1960); McCrink v. City of New York, 71 N.E.2d 419, 420 (N.Y. 1947); Lane v. Chatham, 111 S.E.2d 598, 603 (N.C. 1959); First Trust Co. of N. D. v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 8 (N.D. 1988); Huston v. Konieczny, 52 Ohio St. 3d 214, 217, 556 N.E.2d 505, 509 (Ohio 1990); Green v. Harris, 2003 OK 55, 70 P.3d 866, 869 (Okla. 2003); Kuhns v. Brugger, 135 A.2d 395, 403 (Pa. 1957); Howell v. Hairston, 261 S.C. 292, 199 S.E.2d 766, 770 (S.C. 1973); Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933, 934 (S.D. 1898); Cardwell v. Bechtol, 724 S.W.2d 739, 748 (Tenn. 1987); Herland v. Izatt, 2015 UT 30, 345 P.3d 661, 668 (Utah 2015); Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538, 540 (Vt. 1939); Kingrey v. Hill, 245 Va. 76, 425 S.E.2d 798, 799 (Va. 1993); Bernethy v. Walt Failor’s, Inc., 97 Wash. 2d 929, 653 P.2d 280, 283 (Wash. 1982); Taylor v. Seil, 120 Wis. 32, 97 N.W. 498, 498 (Wis. 1903); Phelan v. City of Mount Rainier, 805 A.2d 930, 942 (D.C. 2002).
16. Reeves, 534 So. 2d at 1108 (emphasis added). But see Byers v. Hubbard, 107 Ohio App.3d 677, 669 N.E.2d 320 at 322 (8th Dist. 1995) (find that negligent entrustment of a vehicle and a firearm is not the same, due to the inherently dangerous instrumentality of a firearm).
17. Herland, 2015 UT 30, 345 P.3d 661, 668 (Utah 2015).
18. Delana, 486 S.W.3d 316, 325 (Mo. 2016).
19. Morin v. Moore, 309 F.3d 316, 324 (5th Cir. 2002).
20. 682 S.W.2d 377, 379 (Tex. App.—El Paso 1984, no writ).
21. Restatement (Second) of Torts § 390.
22. 981 S.W.2d 801, 806 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).
23. No. 10–11–00089–CV, 2011 WL 4837849 (Tex. App.—Waco 2011, pet. denied).
24. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
25. Morin, 309 F.3d 316, 324 (5th Cir. 2002).
26. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).
27. See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999) (“third-party criminal conduct is a superseding cause unless the criminal conduct is a foreseeable result of such negligence”) (emphasis added).
28. See Dao v. Garcia, 486 S.W.3d 618, 622 (Tex. App.—Dallas 2016, pet. denied) (criminal case State v. Tim William Parks, No. F12-00621-X (Crim. Dist. Ct. No. 6, Dallas County, Tex. 2012)); LaRoque v. Sanchez, 641 S.W.2d 298, 300 (Tex. App.—El Paso, 1982 writ denied). But see Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex. App.—Dallas 2004, pet. denied) (no negligent entrustment).
29. NRA Gun Safety Rules, NRA Explore, http://gunsafetyrules.nra.org (last visited May 2018).



Jefferson FisherJEFFERSON W. FISHER
is a civil litigation and appellate associate of Orgain Bell & Tucker in Beaumont, where his practice focuses on jury trial and appellate work. He serves on the State Bar of Texas Administration of Rules of Evidence Committee. Fisher graduated from the McCombs School of Business at the University of Texas at Austin and received his J.D. from Texas Tech University School of Law.

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