Shirley ex rel. Graham v. Glass
297 Kan. 888
| Kan. | 2013Background
- Zeus Graham, born July 3, 1995, is the son of Elizabeth Shirley and Russell Graham; Russell has a history of violent crime and is known to be temperamental.
- Imogene Glass is Russell’s grandmother and Zeus’s great-grandmother; she is aware of Russell’s criminal past and his tendency toward violence.
- Shirley obtained a protection from abuse order against Russell after a violent incident in July 2003.
- In August 2003, Russell threatened Shirley and later assaulted her; he also threatened Zeus, leading Shirley to report the incident to police.
- Around September 2003, Russell and Glass went to a pawn shop to purchase a shotgun for the boys under glass’s name; Russell paid for the gun, and the transaction was not recorded due to camera failure.
- Russell used the firearm to kill Zeus and then killed himself; Shirley filed a tort petition alleging negligent entrustment and negligent sale of a firearm involving Glass and the pawn shop defendants
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligence per se can support the claims against the gun sellers. | Shirley seeks to rely on statutory prohibitions to establish duty/breach. | Defendants contend no statutory private cause of action or duty arises for a firearm sale. | Statutory violations may establish a duty/breach in negligent entrustment; not a separate negligence per se claim. |
| What level of care does a firearms dealer owe when selling to a felon or a third party? | Shirley argues for a heightened standard of care based on Wood/Long. | Dealers should not be held to an unlimited heightened standard. | Firearms dealers owe the highest standard of care; not limited to a fanatically narrow scope; standard depends on risk. |
| Can statutory limits on firearm transfers be used to define duty and breach in a negligence action? | Statutes fill in duty elements and breach relevant to negligent entrustment. | Statutes do not automatically create private duties independent of negligence. | Statutes may be used to establish duty and breach within a negligence framework, with causation still required. |
| Is the appellate ruling on negligent entrustment affirmed, and the scope of duty clarified? | Appellate ruling supported negligent entrustment with statutory duties. | Agency/merchant liability disputed for highest duty of care. | Court of Appeals’ negligent entrustment ruling affirmed-in-part and reversed-in-part; remanded for further proceedings. |
Key Cases Cited
- Upland Mutual Ins., Inc. v. Noel, 214 Kan. 145 (Kan. 1974) (negligent entrustment creation; common-law torts)
- Gaumer v. Rossville Truck & Tractor Co., 292 Kan. 749 (Kan. 2011) (statutory/constitutional influence on common-law negligence)
- Schlobohm v. United Parcel Service, Inc., 248 Kan. 122 (Kan. 1991) (statutes/ordinances generally do not create duty to individuals injured by violation)
- Prosser and Keeton on Torts, Restatement reference (1960s) (text cited on duty, foreseeability, and standard of care; not a case reporter)
- Wood v. Groh, 269 Kan. 420 (Kan. 2000) (highest standard of care for dangerous instruments; applied to firearms)
- Long v. Turk, 265 Kan. 855 (Kan. 1998) (firearms as dangerous instrumentality; heightened duty; relied on public-safety focus)
- Arredondo v. Duckwall Stores, Inc., 227 Kan. 842 (Kan. 1980) (statutory purpose to protect public safety; firearms transfer context)
- Sterba v. Jay, 249 Kan. 270 (Kan. 1991) (use of traffic-safety statutes to prove breach in negligence)
- Williams v. Esaw, 214 Kan. 658 (Kan. 1974) (evidence of statutory violations in negligence actions)
- Shelden v. Wichita Railroad and Light Co., 125 Kan. 476 (Kan. 1928) (statutory harms to public safety and duty)
- Ransom v. City of Garden City, 113 Idaho 202 (Idaho 1987) (firearm duty principles; general tort approach)