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Shirley v. Glass

Supreme Court of Kansas

July 19, 2013

Elizabeth SHIRLEY, as Mother and Next Friend of Zeus Graham, Appellant,
v.
Imogene GLASS, Baxter Springs Gun & Pawn Shop, and Joe and Patsy George, Appellees.

Page 2

Syllabus by the Court

1. The tort of negligent entrustment is a creation of the common law.

2. A plaintiff does not have to demonstrate that a statute created a cause of action in order to pursue a common-law tort.

3. The United States Congress and the Kansas Legislature may create private causes of action that the common law did not recognize.

4. A plaintiff in a negligence action must prove four elements: a duty owed to the plaintiff, breach of that duty, causation between the breach of the duty and injury to the plaintiff, and damages suffered by the plaintiff.

5. A negligent entrustment claim requires specific proof that the defendant entrusted a chattel to an incompetent entrustee with knowledge or reason to know of the entrustee's incompetence and that the entrustee's incompetence while using the chattel was the cause in fact of injury to the entrustee or another.

6. An obligation created by statute may serve as a basis for establishing a duty, and violation of that statutory obligation may serve as evidence of breach of that duty.

7. In order to utilize a statute to establish a duty of care, a plaintiff must demonstrate that the purpose of the statute includes protecting the plaintiff against the kind of harm that the plaintiff suffered as a

Page 3

consequence of the violation of the statutory obligation.

8. A plaintiff seeking to bring a private cause of action based on violation of a statute must demonstrate membership in the class of people that a statute is designed to protect, but that class of people may be broad and may include all members of the public.

9. One function of K.S.A. 21-4203, prohibiting the sale [297 Kan. 889] of firearms to certain convicted felons, is to protect the citizens of this state from violent crimes committed by those felons.

10. The duty that is owed in a negligence action is one of reasonable care. When dealing in dangerous instrumentalities, reasonable care requires control over the instrumentality that is as cautious as is reasonably possible.

James R. Shetlar, of Law Offices of James R. Shetlar, P.A., of Overland Park, and Jonathan E. Lowy, of the Brady Center To Prevent Gun Violence, of Washington, D.C., argued the cause and were on the briefs for appellant.

Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, argued the cause, and James D. Oliver, of the same firm, was with him on the brief for appellees.

OPINION

ROSEN, J.:

This appeal addresses a civil proceeding following the tragic murder of a child by his father and the father's subsequent suicide. The child's mother brought an action in negligence against the parties who provided the father with the murder weapon. This court is called upon to decide two narrow legal questions that are related to general principles of negligence.

The case was decided in district court on summary judgment. Reviewing the evidence in the light most favorable to the nonmoving party, we find that the facts are as follows:

Zeus Graham was born to Elizabeth Shirley on July 3, 1995. Russell Graham was Zeus' father, as well as the father of an older boy, Alexander, by a different mother. Imogene Glass was Russell's grandmother and Zeus' great-grandmother.

Russell had a criminal history that included convictions of attempted rape and attempted kidnapping. Glass was aware of her grandson's convictions and had heard from Russell that he was not allowed to possess weapons. Glass was also aware that her grandson had a hot temper and that he tended to lose control of himself when he was angry. His bad temper manifested itself in violence [297 Kan. 890] towards Shirley, which included punching her on multiple occasions, slapping her, and hitting her with a baseball bat.

On July 23, 2003, Russell called Shirley at work and summoned her to pick up Zeus from his house. When Shirley arrived, Russell accused her of infidelity and struck her numerous times on her jaw, arm, and chest. Russell told Shirley that if she screamed, the last thing that the boys would hear would be the sound of him killing her. Shirley filed a request for and received a protection from abuse order on that same day.

On August 22, 2003, Shirley brought Zeus to Russell's house for visitation. Before going into the house, Russell whispered to Shirley that if she did not move back in with him by the next day, he would kill Zeus. Shirley went to the police station and reported the threat. That weekend, Russell attempted to suffocate Zeus while the boy was sleeping, but the attack was not fatal.

Around the time that Kansas dove-hunting season opened in the fall of 2003, Russell told Glass— his grandmother— that Zeus and Alexander wanted to learn how to hunt doves and go hunting with their friends. On September 5, 2003, Russell called Glass to suggest going with her to purchase a gun for the boys. He promised Glass that the gun would be kept at her house and that he would not have possession of the gun.

Later that day, Glass and Russell drove in her car to Baxter Springs Gun & Pawn Shop. They had not been to the pawn shop before, and the owners, Joe and Patsy George, were not acquainted with them. Patsy had previously been a party to a telephone conversation with a man ...


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