Vincent N. VALENTINE, et al. v. ON TARGET, INC.
No. 8, Sept. Term, 1997
Court of Appeals of Maryland
April 19, 1999
727 A.2d 947 | 353 Md. 544
Kevin J. McCarthy (Heather J. Kelly, McCarthy, Bacon & Costello, L.L.P., on brief), Lanham, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, MARVIN H. SMITH, (Retired, specially assigned) and ROBERT L. KARWACKI, (Retired, specially assigned) JJ.
KARWACKI, Judge, Retired, Specially Assigned.
We issued a writ of certiorari in this case to answer the question of what, if any, tort duty a gun store owner owes to third parties to exercise reasonable care in the display and sale of handguns to prevent the theft and the illegal use of the
I.
On July 17, 1993, Edward Wendell McLeod and a confederate stole several handguns from On Target, Inc., the respondent, a gun retailer located in Anne Arundel County. On September 26, 1993, Joanne Valentine was murdered outside of her home in Anne Arundel County by an unknown assailant who shot her with one of the guns stolen from On Target, Inc., on the previous July 17th. Vincent Valentine, the petitioner, as personal representative of the Estate of Joanne Valentine, and as surviving spouse and next friend of Vincent N. Valentine II and Nicholas Paul Valentine, surviving minor children of the deceased, filed suit in the Circuit Court for Anne Arundel County against the respondent to recover damages for her wrongful death.
The complaint sought damages from the respondent based on a claim of negligence. In his complaint petitioner asserted that respondent owed a duty to “Joanne Valentine and to all other persons situate in or near Anne Arundel County, to exercise reasonable care in the display of handguns held out to the public for sale to prevent theft and illegal use of the handguns.” (Significantly, the complaint does not describe how the handguns were displayed or what could have been done by respondent‘s agents to prevent the theft). The petitioner further averred that respondent breached this duty by failing to (1) properly train and supervise its employees to prevent theft of the handguns, (2) properly supervise customers at a time when the store was open to members of the general public for the sale of handguns, (3) adequately keep watch over the handguns and install adеquate security devices
The respondent filed a motion to dismiss pursuant to
II.
When considering an appeal that arises as the result of the trial court‘s granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well-pleaded facts and any reasonable inferences that can be properly drawn therefrom; however, we do not consider “merely conclusory charges.” Faya v. Almaraz, 329 Md. 435, 443-44, 620 A.2d 327, 331 (1993), citing Berman v. Karvounis, 308 Md. 259, 264-265, 518 A.2d 726, 728-29 (1987). The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted. Id. at 443, 620 A.2d 327. As the Court of Special Appeals noted, because the trial court did not state its reasons for granting respondent‘s motion to dismiss, it will be affirmed if the record reveals any legally
III.
To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant‘s breach of the duty.” BG & E v. Lane, 338 Md. 34, 43, 656 A.2d 307, 311 (1995), citing Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994). See also Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985). Facts must be pleaded with some specificity to demonstrate that the elements which are required to sustain the cause of action exist. It is not sufficient to merely assеrt conclusory allegations suggesting that the elements are in fact present in the controversy. Id.
The existence of all of the elements including a legally recognized duty owed by this defendant to this plaintiff or to a class of persons of which this plaintiff is a member is vital to sustaining a cause of action in negligence. Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994). Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court. Nevertheless, as so aptly stated by W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 358 (5th ed.1984):
“There is little analysis of the problem of duty in the courts. Frequently it is dealt with in terms of what is called ‘proximate cause,’ usually with resulting confusion. In such cases, the questiоn of what is ‘proximate’ and that of duty are fundamentally the same: whether the interests of the plaintiff are to be protected against the particular invasion by the defendant‘s conduct....
There are, however, a good many defendants, and a good many situations, as to which there is no such duty. In other words, the defendant is under no legal obligation toward the particular plaintiff to act with the care of a reasonable man, and he is not liable even though his conduct falls short of that standard, and the other is injured as a result.”
We focus our attention then on the question of whether the respondent owed a duty to the petitioner‘s decedent under the facts of the instant case. First, it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party. The purpose is defined in the first element needed in order to sustain a cause of action in negligence, proof that the defendant had a duty to act to the benefit of the plaintiff. If the creation of a duty has no benefit to the plaintiff then the purpose is defeated. In Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) we quoted Prosser and Keeton‘s treatise on torts: “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” PROSSER AND KEETON ON THE LAW OF TORTS, supra, at 356. In addition, “[d]uty, it must be recalled, does not exist in a vacuum; the duty required in law must be to the person injured. It is a focused duty.” Valentine v. On Target, 112 Md.App. 679, 684, 686 A.2d 636, 638 (1996). As further defined by Prosser and Keeton “In other words, ‘duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk,” supra at 356.
Accordingly, the duty question that arises under the facts of the instant case primarily requires consideration of two of the concepts which create duty, relationship or nexus of the parties and foreseeability. As we further held in Rosenblatt, supra, “[i]n determining the existence of a duty owed to
Although this Court has analyzed the concept of duty under a variety of different factual scenarios, our holding in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), articulates the law in Maryland and adds substantial support for our holding in the case at bar. In that case we were called upon to answer a question certified to us by the United States District Court for the District of Maryland, pursuant to the
As clearly outlined by Judge Wilner, “[t]he view expressed in Scott has been confirmed in later cases. See Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985); cf. Southland Corp. v. Griffith, 332 Md. 704, 716-17, 633 A.2d 84 (1993), applying the same principle with respect to a duty to aid, i.e., there is no duty on the part of a storeowner to aid a customer from attack by a third person in the absence of statute or special relationship. See also Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986) (police officer had no duty to prevent allegedly drunk driver from injuring pedestrian); Furr v. Spring Grove State Hosp., 53 Md.App. 474, 454 A.2d 414, cert. denied, 296 Md. 60 (1983) (psychiatrist owed no public duty to prevent harm by failing to detain patient); Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994).” Valentine v. On Target, 112 Md.App. 679, 686, 686 A.2d 636, 639 (1996).
As explained by Prosser and Keeton, anticipating the actions of third parties involves the consideration of a variety of factors including who the third party is likely to be or what type of conduct one is attempting to predict.
“There is normally much less reason to anticipate acts on the part of others which are those which are merely negligent, and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reаson to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law....
There are, however, other situations, in which either a special responsibility resting upon the defendant for the protection of the plaintiff, or an especial temptation and
opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it. The responsibility for protection may arise out of contract, by which the defendant has agreed to provide it; or it may be founded upon some relation existing between the parties, such as carrier and passenger, innkeeper and guest, invitor and business visitor, school and pupil, employer and employee, landlord and tеnant, and no doubt others.” (Footnotes omitted).
PROSSER AND KEETON ON THE LAW OF TORTS, supra at 356.
One cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists. The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known and unknown. When balancing the burden on the shop owner with the benefit to society at large clearly this imposition of duty would be a tremendous burden on shop owners while providing only a hypothetical benefit to the public at best. This Court does not discern in the common law the existence of a third party common law duty that would apply to these facts.
IV.
Petitioner cites several cases from other jurisdictions in support of his argument that a duty exists under these circumstances. Upon an analysis of these cases we find that they are factually distinguishable from the situation in the case at bar. Furthermore, even if a factual analogy could be made, the legal rationale supporting the holdings in one of these cases cannot be reconciled with the longstanding jurisprudence of our State.
Pavlides v. Niles Gun Show, Inc., 93 Ohio App.3d 46, 637 N.E.2d 404 (1994) is factually inapposite. There the defendants were sued for negligence by the victims of a shooting perpetrated by minors who stole the gun used in the shooting from a gun show operated by the defendants. Summary
The court in Pavlides reasoned that considering the specific facts alleged in the complaint indicating that the defendants had knowledge of thefts from prior gun shows and had knowledge of the risks associated with allowing unsupervised minors entrance to the gun show suggested that reasonable minds could conclude that the defendants should have foreseen that there existed a substantial probability that minors would be attracted to the show and would likely be lured into stealing guns. Furthermore, evidence was produced alleging that one of the gun dealers sold аmmunition to one of the minor children thus bolstering the court‘s holding that because reasonable minds could conclude that it was foreseeable that minor children who could easily steal guns and then successfully purchase ammunition would likely use the weapon in furtherance of criminal activity therefore, granting summary judgment was inappropriate under the facts presented. Id.
Berly v. D & L Security Services and Investigations, Inc., 876 S.W.2d 179 (Tex.Ct.App.1994) is also factually inapposite. In that case the plaintiff‘s decedent was a clerk in a store which employed the defendant security guard service. The decedent was killed on the store premises by a shoplifter who was being pursued by defendant‘s guard. The Texas court reasoned that the guard‘s pursuit of the armed shoplifter increased the danger to plaintiff‘s decedent and others present in the store, thereby partially creating the danger to which they were exposed.
A third case cited by the petitioner in support of his argument is Estate of Strever v. Cline, 278 Mont. 165, 924 P.2d 666 (1996) wherein the Supreme Court of Montana affirmed a
The relevant facts consisted of the following; four boys, including the deceased minor who was the subject of the controversy, entered the defendant‘s unlocked truck and stole several items including a handgun that was wraрped in a paper bag and stored under the seat. After one of the boys had been smoking marijuana, he was playing with the gun and in the process caused the gun to discharge hitting another boy and fatally wounding him. The court held that the defendant owed a duty not only to the minor boys who stole the gun from his truck but also “to the public in general.” Id. 924 P.2d at 669.
The Supreme Court of Montana partially based its holding on their abandonment of the common law distinctions between the duty owed to invitee, licensee and trespasser and instead have “adopted a uniform standard of reasonable care under the circumstances.” Id. 924 P.2d at 670. The court reasoned that although a tortious trespass usually involves an intrusion upon land that a trespass can also be against one‘s personal property. Consequently, аlthough the boys were trespassers as to the defendant‘s truck and his gun, the court focused its analysis on whether the defendant exercised reasonable care instead of examining what duty should be owed to the boys based on their conduct under the circumstances. In our view, this rationale shifts the entire burden of avoiding harm to one party, the land or property owner. We cannot conclude that this is a legally sound approach when analyzing whether a common law duty is owed under these facts. The legal principle that this case stands for, that a duty may exist to the public at large without any evidence of a relationship between the parties, is simply too foreign to our well-established juris-
V.
Extending the general duty that an actor owes to exercise reasonable care to avoid causing injury to another and applying it to the facts of this case would require that this Court create a completely new cause of action in this State which we do not believe is the proper course of action under these facts. We caution that the holding in this case does not mean that a gun store owner may never be held liable to another party for negligence in the display and sale of guns when that other party is injured as a result of the negligence but rather that under the specific facts alleged in this particular case no duty was owed to this petitioner‘s decedent.
Our holding that a gun store owner does not owe a duty to a third person and thus can not be held liable in negligence is best explained by public policy; that although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another this does not create a duty of gun dealers to all persons who may be subject of the harm. If we would hold today that gun merchants owe an indefinite duty to the general public effectively we would be regulating the merchants. This type of regulation is the realm of the legislature and is not appropriate as a judicial enactment.
JUDGMENT AFFIRMED, WITH COSTS.
Concurring opinion by RAKER, J., in which BELL, C.J., and ELDRIDGE, J., join.
Raker, Judge, concurring:
I join in the judgment of the Court affirming the trial court‘s dismissal of Petitioner‘s complaint. While I agree with the majority‘s reasoning with regard to the insufficiency of Petitioner‘s factual allegations, I take issue with those parts of the opinion which impliedly foreclose the possibility of a tort action based upon the negligence of a retail gun merchant in the keeping, display, storage, or sale of handguns.
The majority stresses in several parts of its opinion that the rationale and decision in this case are limited to the facts presented, insufficient as they are. For instance, in the introductory paragraph, the majority states:
Confining our analysis to the well pleaded facts in the complaint filed by petitioner in the instant case, the issue is properly limited to the determination of whether respondent owed a duty to the petitioner‘s decedent. We hold that such a tort duty is not cognizable under those facts ....
Maj. op. at 547 (emphases added). The majority further writes, “We focus our attention then on the question of whether the respondent owed a duty to the petitioner‘s decedent under the facts of the instant case.” Maj. op. at 550 (emphasis added). Shortly thereafter, in rеjecting the assertion that the theft and criminal misuse of the handgun in the present case were foreseeable, the majority concludes, “Petitioner does not allege any facts to support his claim....” Maj Op. at 551. The majority later states,
The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known and unknown.... This Court does not discern in the common law the existence of a third party common law duty that would apply to these facts.
Extending the general duty that an actor owes to exercise reasonable care to avoid causing injury to another and applying it to the facts of this case would require that this Court create a completely new cause of action in this State which we do not believe is the proper course of action under these facts.
Maj. op. at 556 (emphases added).
Despite these explicit and purposeful limitations, other portions of the majority opinion are painted, in my estimation, with too broad a brush. Most notably, the Court‘s concluding paragraph, Maj. op. at 556, proclaims:
Our holding that a gun store owner does not owe a duty to a third person and thus can not be held liable in negligence is best explained by public policy; that although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another this does not create a duty of gun dealers to all persons who may be subject of the harm. If we would hold today that gun merchants owe an indefinite duty to the general public effectively we would be regulating the merchants. This type of regulation is the realm of the legislature and is not appropriate as a judicial enactment.
These final thoughts, not limited to the facts of the presеnt case, may be the most lasting impression of the Court‘s decision today. Lest they be misunderstood as declaring victims of handgun violence in Maryland to be barred from suing retail handgun merchants for their negligent handling of their handgun inventory, I write to suggest that the majority‘s opinion should not be read to mitigate or mute what the Court has announced in concluding its penultimate paragraph:
We caution that the holding in this case does not mean that a gun store owner may never be held liable to another party for negligence in the display and sale of guns when that other party is injured as a result of the negligence but
rather that under the specific facts alleged in this particular case no duty was owed to this petitioner‘s decedent.
Maj. op. at 556 (emphases added). To my mind, this singular sentence comprises the Court‘s mоst significant ruling.
I would affirm the Court of Special Appeals on the very narrow ground that the complaint fails to state any facts, beyond bald and conclusory allegations, that Respondent breached a duty of due care to Petitioner in this case. See
Writing for the Court of Special Appeals, then Chief Judge Wilner, now a member of this Court, pointed out that the complaint gives no details as to how McLeod and his confederate managed to steal the guns, how the guns were storеd, what precautions Respondent had taken to secure the guns, or how the theft occurred. Valentine v. On Target, 112 Md.App. 679, 682, 686 A.2d 636, 637 (1996). Moreover, the complaint does not indicate whether McLeod was an unaccompanied minor, id. at 689, 686 A.2d at 641, nor what Respondent did or did not do to prevent the theft, id., 686 A.2d at 641, nor what more Respondent could or should have done. Id. at 691, 686 A.2d at 641. The intermediate appellate court therefore emphasized that “[t]o extend liability to the general public on these facts, or lack of them, would effectively create a doctrine of absolute liability....” Id., 686 A.2d at 641.
For the reason—and only for the reason—that Petitioner failed to sufficiently plead the facts necessary to state a cause of action in negligence against Respondent, I would affirm the judgment dismissing the complаint. Because, however, the majority opinion ventures beyond that which is necessary to decide the instant case, I feel compelled to respectfully dissent from its reasoning beyond the issue of factual insufficiency.
I believe that retail handgun merchants owe a legally recognized duty to exercise ordinary care in securing handguns held out for public sale and that, as a matter of law, the chain of causation is not necessarily broken by intervening criminal acts. The imposition of tort liability upon the merchant would not shift the entire burden of preventing harm onto a gun store owner, nor would it establish an “indefinite duty,” as the majority ominously predicts. Instead, it would merely impose upon a store owner a duty to exercise ordinary care in the storage and display of handguns held out for sale to the public.
Under our current tort jurisprudence, does the defendant have a legally recognized duty to secure its guns to prevent theft? Duty, in negligence cases, has been defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) (quoting W. PAGE KEETON, PROSSER AND KEETON ON TORTS § 53, at 356 (5th ed.1984)). Since, in the absence of a statutory duty, a special relationship ordinarily
The foreseeability test is “simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm....” Henley v. Prince George‘s County, 305 Md. 320, 334, 503 A.2d 1333, 1340 (1986). If a plaintiff can prove that the theft of a handgun from a retail shop, as well as the subsequent, violent, criminal misuse of the stolen handgun were foreseeablе, and not “highly extraordinary,” then a duty exists to a foreseeable plaintiff on the part of the retail merchant to secure handguns for sale to the public. See RESTATEMENT (SECOND) OF TORTS § 435(2) (1965) (stating that attachment of liability may be avoided where it appears highly extraordinary that defendant‘s negligent conduct should have brought about the harm (cited in Henley, 305 Md. at 334, 503 A.2d at 1340)). I therefore disagree with the majority‘s conclusion that, as a matter of law, neither the theft nor the criminal misuse of the firearm was foreseeable. Cf. Matthews, 351 Md. at 560-63 and n. 4, 719 A.2d at 127-28 and n. 4 (imposing liability on landlord for fatal attack by tenant‘s pit bull on sixteen-month old child based in part on foreseeability of attack which was partly demonstrable by numerous legislative efforts to control or ban pit bull breed widely known for viciousness and aggression).
As Professors Wright and Rossi summed up in their well-known study of convicts and handgun use, “at least four-tenths, and possibly as much as seven-tenths, of the most recent handguns possessed by [these convicts] were stolen weapons.” WRIGHT & ROSSI, supra, at 207. Surveying over 1800 inmates in ten states about their guns, the professors found that 32% of the felons who possessed handguns when
The attraction of a stolen handgun to those individuals likely or intending to commit a crime is obvious. As Wright and Rossi stated,
A stolen firearm ... can only be traced back to the last legal owner if the gun is subsequently used in a crime.... [U]ntraceability is an important characteristic that felons look for in handguns, and stolen guns fit that definition very well. Even when other sources of supply are available, it is easy to see that there might be a preference among criminals for stolen equipment.
WRIGHT & ROSSI, supra, at 193. This idea has been eсhoed by other commentators: “Stolen guns are particularly attractive to people who intend to commit violent crimes with guns because they are virtually impossible to trace.” GUN CONTROL, supra, at 100. The notion that it is not foreseeable that a stolen handgun will be used in violent crime is simply nonsense.
Policy considerations are important in deciding whether a duty of care exists. The relevant policy considerations include (1) the moral blame attached to the defendant‘s conduct, (2) a desire to prevent future harm, (3) the extent of the burden on the defendant and the consequences to the community of imposing a duty to exercise care, and (4) the availability, cost and prevalence of insurance. See Village of Cross Keys, 315 Md. at 752, 556 A.2d at 1131 (citing Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976)). Accordingly, in a case involving the
The federal government and the State of Maryland have enacted elaborate statutory schemes designed to regulate the transfer of handguns. Passed by Congress in 1968, the Omnibus Crime Control and Safe Streets Act, among other things, prohibits possession of all firearms in or affecting interstate commerce by persons with a felony conviction. See
In Maryland, a person mаy not legally purchase a firearm unless that person is at least 21 years of age,
Interwoven in its conclusion that no duty existed, the majority also essentially concludes thаt Respondent‘s actions (or
If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another.
351 Md. at 578, 719 A.2d at 135-36 (quoting State v. Hecht Company, 165 Md. 415, 422, 169 A. 311, 313 (1933); Lane, 338 Md. at 52, 656 A.2d at 315; Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 160, 642 A.2d 219, 231 (1994); Atlantic Mutual v. Kenney, 323 Md. 116, 131, 591 A.2d 507, 514 (1991). See also Robertson v. Sixpence Inns of America, 163 Ariz. 539, 789 P.2d 1040, 1047 (1990); Godesky v. Provo City Corp., 690 P.2d 541, 545 (Utah 1984)).
By the same token, the intervening criminal actions of another would not supersede the original negligence so long as they were foreseeable; for the crux of the matter is the foreseeability of those acts, not the level of intent with which they were conducted. As declared in the second restatement of the law оf torts:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the [original] actor‘s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the [original] actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
RESTATEMENT (SECOND) OF TORTS, supra, § 448.
For all the reasons stated above, I cannot join in the majority‘s view that there is no duty upon retail gun store owners to exercise reasonable care in securing handguns held out for sale to the public. I believe that the policy concerns cry out lоudly in favor of recognizing a duty to the foreseeable plaintiff on the part of retail handgun sellers to exercise reasonable care in conducting their business so as to avoid the theft and subsequent criminal misuse of handguns.
Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join in the views expressed herein.