We granted leave in this case to determine whether to impose a duty on a retailer to protect a bystander injured by the use of shotgun ammunition it sold to defendant McKay while McKay was intoxicated, and whether the sale of the ammunition was a proximate cause of the plaintiff’s injury. Because the product sold was
i
Plaintiff was injured by a shotgun slug intentionally fired by William McKay that ricocheted off the plaintiff’s parked vehicle. The ammunition was fired from McKay’s shotgun several hours after the time of the purchase, and many miles away from the retailer’s premises. McKay testified that he had engaged in a day-long drinking spree and could not remember the gender of the sales clerk and could not identify the box of shells he purchased. He testified that he remembered retrieving the shells from a self-serve shelf at K mart and purchasing them without speaking to anyone. He did not recall if he showed any signs of intoxication, but assumed he looked a mess after his day-long beer-drinking activities.
McKay spent the next several hours drinking and at approximately 10:45 p.m., drove to the Buczkowski home intending to shoot out the back window of the plaintiff’s parked truck. He fired one shot which ricocheted off the wheel of the truck and struck Buczkowski, who happened to be in his back yard at the time. Plaintiff sustained injuries to his hands and eventually had his right
A jury awarded Buczkowski $1.5 million in damages. Defendant K mart’s motions for summary disposition, directed verdict, and judgment notwithstanding the verdict were denied. At trial, the court found that K mart’s internal policy of not selling ammunition to intoxicated customers was sufficient evidence to impose a legal duty on the retailer. 1
The Court of Appeals concluded that a retailer of a product owes a duty of due care to a bystander affected by that product and that it is for the jury to determine whether the retailer created an unreasonable risk of harm. With regard to the issue of proximate cause, the Court found that McKay’s conduct was foreseeable and, therefore, that the issue was properly submitted to the jury. Finally, the panel reversed the trial court’s order denying defendants’ motion for remittitur and remanded the matter to the trial court for reconsideration of that motion in light of this Court’s recent decision on the issue in
Palenkas v Beaumont Hosp,
We granted leave to appeal limited to the issues whether Kmart owed a duty to protect Buczkowski when it sold shotgun ammunition to McKay while McKay was intoxicated, and whether the sale of the ammunition was the proximate cause of plaintiff’s injury.
The plaintiff claims an interest in being free from the injury that resulted from the criminal misuse of a product sold by K mart to an allegedly incompetent customer. 2 For the reasons stated below, we find that it did not.
A
For purposes of this case we distinguish between duty as the problem of the relational obligation between the plaintiff and the defendant, and the standard of care that in negligence cases is always reasonable conduct. Thus, the duty to use "reasonable care” is the standard for liability rather than the antecedent conclusion that a particular plaintiff has protection against a particular defendant’s conduct, or that a particular defendant owes any specific duty to a particular plaintiff.
3
Duty is actually a " 'question of whether the defendant is under any obligation for the benefit of the particular plaintiff’ and concerns 'the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.’ ”
Friedman v Dozorc,
Courts take a variety of approaches in determining the existence of a duty, utilizing a wide array of variables in the process. Frequently, the first component examined by the court is the foreseeability of the risk. However, other considerations may be, and usually are, more important. For example, in
Samson v Saginaw Professional Bldg, Inc,
[T]he mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. Also, to require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor.[ 5 ]_
[T]he legal problem in this case . . . involves not hindsight but foresight, the problem of "duty.” Was [the] action foreseeable by . . . the defendants here? Of course not .... Nevertheless, will we say that it was? A court can, of course, always simply hang its hat on the wall and say that anyone can foresee anything, for example here, specifically, that Gordon would commit a crime .... But this is purely fictional. ... It is my opinion that a modern court, if it is to employ fictions, should state frankly the considerations of policy justifying the result ordained by the fiction .... [May v Goulding, 365 Mich 143 , 155-156;111 NW2d 862 (1961) (Souris, J., dissenting and adopting Justice Smith’s opinion as his own). Emphasis in original.]
Whether a retailer has a duty to protect a member of the general public from the criminal act of a customer depends on the relationship between the parties, the nature and foreseeability of the risk, and any other considerations that may be relevant on the issue. 8
B
Our ultimate decision turns on whether a sufficient relationship exists between a retailer and a third party to impose a duty under these circumstances. The duty to protect others against harm from third persons is based on a relationship between the parties. Prosser & Keeton, § 56, p
The plaintiff argues that ammunition is an inherently dangerous product and that the policy reasons for regulation of firearms are equally ap
In
King v R G Industries,
There are numerous policy arguments both for and against the regulation of firearms .... These arguments involve economic, political, and philosophical considerations, including whether placing the economic burden of crime on those who market a product that may lawfully be sold is likely to have a substantial impact on crime. In some analogous situations similar issues have been resolved against the merchants, e.g., sales of intoxicating beverages to visibly intoxicated persons .... However, in that situation the matter was resolved by the Legislature. We believe that body is the more appropriate forum in which to settle such questions. [Id. at 345.]
Claims against retailers for a customer’s criminal misuse of a firearm have been recognized where the seller violated a state or federal firearm statute. In those cases, courts reason that where a legislature identifies certain classes of persons as incompetent to possess weapons, it is foreseeable that such persons will commit crimes if allowed access to weapons in violation of the statute.
13
Nevertheless, beyond the class defined by statute,
14
Ultimately, whether we should impose a duty on the defendant in this case despite the actual lack of foreseeability turns on whether as a matter of policy K mart should bear the burden of plaintiff’s loss. We are persuaded that the fiction of foreseeability should not be imposed on the sellers of ammunition. The likely result will be to make such products unavailable to law-abiding users, or to raise the price of a multitude of potentially harmful products as sellers redistribute the cost of potential liability to all consumers. Moreover, because it is unlikely that placing the economic burden of crime on the defendant will have "a substantial impact on crime,” King, supra at 345, the only reason for fictional foreseeability is shifting the burden of plaintiff’s loss. This concern in context does not overcome the policy considerations articulated by Judge Shepherd that apply even more forcefully to the sale of ammunition. 16
Accordingly, we reverse the decision of the Court of Appeals and remand to the trial court with directions that it enter judgment in favor of defendant K mart.
Notes
We disagree with the trial court. Imposition of a legal duty on a retailer on the basis of its internal policies is actually contrary to public policy. Such a rule would encourage retailers to abandon all policies enacted for the protection of others in an effort to avoid future liability.
The plaintiff’s theory of recovery is negligent entrustment, 2 Restatement Torts, 2d, § 390, p 314, which provides:
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Green, The duty problem in negligence cases, 28 Colum L R 1014, 1025 (1928).
Dean Prosser described the several variables that consistently go to the heart of a court’s determination of duty as including: foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and, finally, the burdens and consequences of imposing a duty and the resulting liability for breach. Prosser & Keeton, § 53, p 359, n 24. See also Green, n 3 supra, and Green, The duty problem in negligence cases: ii, 29 Colum LB 255 (1929); Green, Duties, risks, causation doctrines, 41 Tex LR 42 (1962); Thode, Tort analysis: Duty-risk v proximate cause and the rational allocation of functions between judge and jury, 1977 Utah LR 1.
Justice Levin, in his dissenting opinion in
Samson v Saginaw
[T]he duty question turns on policy considerations: "whether one owes a duty of protection to another is ultimately a question of fairness.” . . . "The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”
In
Rodriguez v Sportsmen’s Congress,
The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit of the subsequently injured person. . . . Thus, the determination of whether a duty should be recognized in any individual case is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties.
Other jurisdictions have expressed reasoning about duty similar to that of our own jurisprudence.
The Rhode Island Supreme Court, in
D’Ambra v United States,
114 RI 643, 650-652;
The Supreme Court of Wisconsin, addressing the negligence duty dilemma in
Waube v Warrington,
216 Wis 603, 613;
The answer to this question cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the defendant ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain how far defendant’s duty and plaintiff’s right may justly and expediently be extended.
The Court of Appeals and the plaintiff primarily relied on
Moning v Alfono,
The present case does not illustrate a special relationship, where one entrusts himself to the protection of another and relies upon that person to provide a place of safety, e.g., landlord-tenant, innkeeper-guest, common carrier-passenger.
Williams v Cunningham Drug Stores,
Piercefield
and
MacPherson,
n 9
supra,
involved manufacturer liability when defectively made products foreseeably injured innocent bystanders. Imposing a duty of safety upon retailers and manufacturers to persons injured by the use or misuse of a product sold, without regard to the type of product or whether it was defective, is in effect, absolute liability; a concept rejected by this Court in
Prentis v Yale Mfg Co,
In
Fredericks v General Motors Corp,
To sustain a cause of action for negligent entrustment a plaintiff must prove that defendant knew or should have known of the unreasonable risk propensities of the entrustee. ... To prove an entrustor should have known an entrustee was likely to use the entrusted chattel in an unsafe manner, peculiarities of the entrustee sufficient to put the entrustor on notice of that likelihood must be demonstrated. [Emphasis added.]
In the instant case, the risk of harm was the intentional criminal misuse of shotgun ammunition. However, the only evidence presented at trial from which an inference that the retailer had notice McKay was so intoxicated that harm to others was foreseeable was McKay’s testimony that he entered the store alone, retrieved the ammunition from a self-serve shelf, and proceeded to the sales counter where he paid for the shotgun ammunition without difficulty. Although McKay was unable to recall the gender of the sales clerk, he did remember that he did not speak to the clerk and that the clerk did not ask him any questions. McKay did not know if he showed any visible signs of intoxication while inside the store. Nevertheless, McKay assumed he must have looked a mess because of his day-long beer-drinking activities, evidence that seems to fall short of that which would make a check-out clerk aware of the peculiarities of the entrustee.
Accord
Delahanty v Hinckley,
See for example
Huddleston v United States,
We have found only two cases that address negligence claims arising solely from the sale of ammunition. In
Schmit v Guidry,
204 So 2d 646 (La App, 1967), a fourteen year old purchased shotgun shells from a store and later shot another boy. The state statute in question prohibited sales to minors of any firearms or other instrumentality customarily used as a dangerous weapon. A Louisiana appellate court declined to impose a legal duty under the statute, finding that a shotgun shell was not a firearm, nor could it be used as a dangerous weapon. With regard to the negligence claim, the court also refused to impose a duty stating that a fourteen year old is not too young to know the character of shotgun shells, nor was he so young that the seller knew or should have known the boy was incapable of taking proper care of the shells. In the second case,
Bryant v Winn-Dixie Stores, Inc,
See Prosser & Keeton, § 36, p 233;
Hetherton v Sears, Roebuck & Co,
593 F2d 526 (CA 3, 1979);
Bennet v Cincinnati Checker Cab Co, Inc,
There is no evidence or testimony in this record demonstrating that any Kmart employee had actual notice that McKay displayed abnormal behavior while inside the store. Absent evidence to the contrary, the retailer was entitled to proceed on the assumption that the purchaser would obey the criminal law. Prosser & Keeton, § 33, p 201. Imposing a duty on a retailer to protect members of the general public from the criminal misuse of the products it sells also implicates the economic repercussions of protecting bystanders from "defective” customers,
Horne v Vic Potamkin Chevrolet, Inc,
533 So 2d 261 (Fla, 1988). The creation of such a duty effectively requires independent investigation to establish each buyer’s fitness to use each product, leaving negligent-commercial transactions open to unlimited expansion tantamount to imposing a fiduciary duty on the retailer for the
See 18 USC 922(b)(1); MCL 3.111, 3.112; MSA 4.127(1), 4.127(2), MCL 28.421 et seq.; MSA 28.91 et seq.