Alex Vesely v. Armslist LLC
2014 U.S. App. LEXIS 15478
| 7th Cir. | 2014Background
- In 2011, Jitka Vesel was murdered with a handgun illegally purchased by Demetry Smirnov after he found a private-sale listing on Armslist.com.
- Smirnov (a Canadian resident) met seller Benedict Ladera in Washington state and purchased the gun; the out-of-state transfer violated federal law.
- Smirnov later stalked and killed Jitka; he pled guilty and is serving life; Ladera pled guilty to illegal transfer.
- Jitka’s brother Alex sued Armslist for wrongful death, survival, and family expense claims, alleging Armslist negligently facilitated illegal gun sales.
- The district court dismissed under Rule 12(b)(6), holding Armslist owed no duty to Jitka; post-judgment motions (Rule 59(e) reconsideration and Rule 15 leave to amend) were also denied.
- The Seventh Circuit affirmed, concluding no duty existed absent a special relationship or concerted action creating the risk of the third-party crime.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Armslist owed a duty of care to Jitka for harms caused by a third party | Armslist negligently operated its site to enable cross‑jurisdictional sales and thus owed the public (including Jitka) a duty to operate commercially reasonable safeguards | Armslist had no special relationship with Jitka; merely hosting an ad is not affirmative assistance or encouragement of a crime | No duty: absent a special relationship or conduct amounting to aiding the tortfeasor, defendant owes no duty for intervening criminal acts |
| Whether the "special relationship" requirement can be bypassed because defendants’ conduct created a condition conducive to crime | Argues exception for affirmative conduct that creates foreseeable risk of intervening criminal acts | Says enabling lawful use of a platform is not assisting or encouraging illegal conduct | Exception inapplicable: plaintiff alleged only passive facilitation (hosting an ad), not substantial assistance or encouragement |
| Whether the district court erred in denying Rule 59(e) reconsideration | Court should have found manifest error and reconsidered dismissal | Motion merely rehashed previously rejected arguments and presented no new law or evidence | Denial affirmed: no manifest error or newly discovered evidence shown |
| Whether denial of leave to amend after judgment was improper | Post-judgment amendment should be allowed following a timely Rule 59(e) motion | Rule 15(a) amendment after final judgment requires the judgment be set aside first; Alex’s motion was premature | Denial affirmed: judgment was not set aside, so post-judgment amendment was improperly sought |
Key Cases Cited
- Iseberg v. Gross, 879 N.E.2d 278 (Ill. 2007) (no affirmative duty to protect from third‑party criminal acts absent special relationship)
- Marshall v. Burger King Co., 856 N.E.2d 1048 (Ill. 2006) (identifies recognized special relationships and duty inquiry)
- Hill v. Bridgeview Little League Ass’n, 745 N.E.2d 1166 (Ill. 2000) (refusing to impose duty for third‑party criminal acts absent special relationship)
- Rowe v. State Bank of Lombard, 531 N.E.2d 1358 (Ill. 1988) (acknowledges exception where defendant’s affirmative conduct creates risk of foreseeable intervening crime)
- Simmons v. Homatas, 925 N.E.2d 1089 (Ill. 2010) (liability for persons acting in concert who give substantial assistance or encouragement)
- Buechel v. United States, 746 F.3d 753 (7th Cir. 2014) (elements of negligence under Illinois law)
- Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143 (7th Cir. 2010) (standard of review for Rule 12(b)(6) dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a claim plausible on its face)