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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man who brought negligence claims against a sporting goods store that he alleged unlawfully sold a firearm to his girlfriend, who later shot him with it, cannot continue with his complaint after the Indiana Court of Appeals found the store was immune from liability.
While perusing through Dunham’s Athleisure Corp., which sells firearms, Keith Shepherd’s girlfriend Christina Bowman asked if he would buy her a gun, but he refused. After she exited the store following an argument that ensued from his denial, Shepherd told a Dunham’s employee, “[W]hatever you do, don’t ever sell that little girl a gun. [S]he’s dangerous. . . . [S]he would shoot me[.]”
Shepherd’s assumption was confirmed when Bowman shot him with handgun she purchased from Dunham's on her own a few months after their first visit in late 2016. Shepherd survived his injuries and filed a complaint against Dunham’s alleging negligence, negligent entrustment and “negligent training and supervision.” He also sought damages for his injuries.
Specifically, Shepherd alleged Dunham’s violated “its own corporate policies during the sale of the gun to Bowman,” as well as two aspects of the Firearms Transaction Record, or ATF Form 4473.
Both parties filed cross-motions for summary judgment, which the Wabash Superior Court denied, noting in Dunham’s motion that genuine issues of material fact existed as to whether Dunham’s sale to Bowman was unlawful. The trial court concluded those questions of fact precluded a determination on summary judgment that Dunham’s was immune from liability under Indiana Code section 34-12-3-3, which states, in part, that a person may not bring action against a firearms seller to recover damages resulting from the criminal or unlawful misuse of a firearm by a third party.
But the Indiana Court of Appeals disagreed, finding the trial court erred when it denied Dunham’s summary judgment motion.
In addressing the interlocutory appeal, the appellate panel cited the Indiana Supreme Court’s holding in KS&E Sports v. Runnells, 72 N.E.3d 892, 899-900 (Ind. 2017). The high court there held that plaintiffs could not rely on the harm caused by the misuse of an unlawfully sold firearm to sue the firearms seller for the unlawful sale.
“Here, each of Shepherd’s claims against Dunham’s arises out of the alleged unlawful sale of a firearm to Bowman, who then shot Shepherd,” Judge Edward Najam wrote for the unanimous panel. “Bowman’s conduct amounts to ‘criminal or unlawful misuse of a firearm . . . by a third party.’ Following the holding of KS&E, we conclude that Dunham’s is immune from liability as a matter of law.”
The court further noted in a footnote that regardless of the bases for the alleged unlawful sale of the gun to Bowman, Dunham’s was entitled to summary judgment in its favor on Shepherd’s complaint.
The case is Dunham's Athleisure Corp. v. Keith Shepherd, 18A-PL-2892.
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