Dunham's Athleisure Corp. v. Keith Shepherd


1 A TTORNEY A A TTORNEY FOR S FOR PPELLANT A PPELLEE Robert F. Ahlgrim, Jr. -Hodson Emily C. Guenin State Auto Insurance House Counsel Mark C. Guenin Carmel, Indiana Guenin Law Office, P.C. Wabash, Indiana IN THE OF APPEALS OF INDIA NA COURT May 1, 2019 , Dunham’s Athleisure Corp. Court of Appeals Case No. Appellant -Defendant, -PL 18A -2892 v. Wabash Superior Appeal from the Court , Keith Shepherd Karen A. Springer, The Honorable Judge Pro Tempore . -Plaintiff Appellee Trial Court Cause No. -156 85D01 -1703- PL . Najam, Judge Statement of the Case Dunham’s Athleisure Corp. (“Dunham’s”) appeals the trial court’s denial of its [1] motion for summary judgment on Keith Shepherd’s complaint in which ther claims, Dunham’s negligence , among o Shepherd alleged in the sale of a to a third party. Dunham’s presents a single dispositive issue for our firearm | Opinion 7 1 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

2 review, namely, whether the trial court erred when it denied Dunham’s summary judgment motion. [2] We reverse. Facts and Procedura l History Christina Bowman went to [3] In the fall of 2016, Shepherd and his girlfriend Dunham’s, and Bowman asked Shepherd to buy her a gun. Shepherd refused, and the two began to argue. After Bowman walked away, Shepherd turned to an employee standing behind the counter where guns were sold and said, . . . “[W]hatever you do, don’t ever sell that little girl a gun. [S]he’s dangerous. shoot me would [.]” Appellant’s App. Vol. II at 67. [S]he [4] On December 15, Bowman went to Dunham’s by herself and bought a 1 handgun. O n December 23, Bowman used that handgun to shoot Shepherd, who survived his injuries. On March 1, 2017, Shepherd filed a complaint against Dunham’s alleging negligence, negligent entrustment, and “negligent 2 seeking damages for his injuries. training and supervision” and The at 41. Id. motions for summary judgment. Following a hearing, the parties filed cross- In particular, in denying Dunham’s summary trial court denied the motions. 1 Shepherd alleges that Dunham’s violated “its own corporate policies during the sale of the gun to two aspects of ATF Form 4473 ,” as well as “ Bowman .” Appellee’s Br. at 5, 9. As we explain below, the regardless of the bases for unlawful sale of the gun to Bowman, Dunham’s is entitled to summary alleged on Shepherd’s complaint . judgment in its favor 2 ” but that claim is not relevant to this reckless injury, Shepherd also sued Bowman for “ certified interlocutory appeal. | Opinion 7 2 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

3 that genuine issues of material fact exist judgment motion, the trial court found as to whether Dunham’s sale to Bowman was unlawful . And the court concluded in relevant part that those questions of fact precluded a determination on summary judgment that Dunham’s was immune from liability under Indiana Code Section 34 tory -12 -3-3. This certified interlocu appeal ensued. Discussion and Decision summary Dunham’s contends that the trial court erred when it denied its [5] judgment motion. Our standard of review is clear. The Indiana Supreme Court has explained that [w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in -moving parties, summary judgment is favor of . . . the non appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving Williams v. party is entitled to judgment as a matter of law.’” , 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A Tharp fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable (internal citations omitted). Id. inferences.” -judgment movant to The initial burden is on the summary “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non - movant to “come forward with contrary evidence” showing an -62 (internal quotation ma at 761 Id. issue for the trier of fact. rks and substitution omitted). And “[a]lthough the non- moving | Opinion 7 3 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

4 party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys. , 916 N.E.2d 906, 909 -10 (Ind. 2009) (internal quotation marks omitted). , 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some Hughley v. State alterations original to ). Hughley [6] Indiana Code Se -12 -3-3 (201 8) provides: ction 34 [ ] 3 Except as provided in section 5(1) or 5(2) of this chapter, a person may not bring or maintain an action against a firearms or ammunition manufacturer, trade association, or seller for: (1) recovery of damages resulting from, or injunctive relief or : abatement of a nuisance relating to, the lawful (A) design; (B) manufacture; (C) marketing; or (D) sale; of a firearm or ammunition for a firearm; or 3 Neither of these sections applies here. | Opinion 7 4 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

5 (2) recovery of damages resulting from the criminal or unlawful misuse of a firearm or ammunition for a firearm by a third party. [7] Our Supreme Court recently recognized that this statute “functions as an immunity provision” and “forecloses aggrieved plaintiffs from bringing suit” for 4 recovery of damages “even if the firearm has been sold against a firearms seller KS unlawfully.” &E Sports v. Runnells , 72 N.E.3d 892, 899 -900 (Ind. 2017) . In . In particular, the , the plaintiff was shot and sued a firearms seller KS&E that the seller had knowingly sold a firearm to the shooter via plaintiff alleged held in an illegal “straw man” purchase. On appeal, our Supreme Court relevant part as follows: A recurring theme throughout [ the plainttif’s] allegations is that if [the seller] had followed governing law and applicable gun -sales standards, “the Smith & Wesson handgun would not have been ] would not have been shot.” sold to [the buyer] and [ plaintiff Given these allegations, KS&E enjoys immunity under Runnels alleges he sustained injuries when [the subsection 3(2). shooter] , who had no legal right to possess the handgun, shot Runnels with it during a traffic stop. By any measure, that amounts to “criminal or unlawful misuse of a firearm . . . by a -12 -3-3(2). And for the injuries he third party.” I.C. § 34 ls seeks only damages on these negligence sustained, Runne counts. Runnels cannot avoid KS&E’s entitlement to immunity by arguing he seeks relief only for KS&E’s own misconduct and not 4 “ claims, such as those for equitable relief, other ” but Shepherd does not bring The statute does not bar claims other than for damages. 017). , 72 N.E.3d 892, 901 (Ind. 2 KS&E Sports v. Runnells | Opinion 7 5 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

6 that of third parties Blackburn or Martin. Under Runnels’s theory of this case, he inc urred no injury until Martin shot him. We hold under the governing immunity statute that Runnels’s claims “result[ ] from the criminal or unlawful misuse of a firearm . . . by a third party ,” I.C. § 34 -12 -3-3(2), and thus are barred. out in his separate Id. at 901 -02. Further, a s then -Justice Rucker pointed opinion the holding in KS&E means that a firearms seller’s in partial dissent, statutory immunity would apply even where the seller knowingly and intentionally sells a firearm to a buyer who expre sses his intent to give the firearm to an admitted felon who, in turn, tells the seller, “I intend to go on a at 908 (Rucker, J., concurring in part, dissenting in part). Id. shooting spree.” In other words, the held that plaintiffs may not rely on the harm KS&E Court in misuse of an unlawfully sold firearm to sue the seller for the caused by the unlawful sale . [8] Here, each of Shepherd’s claims against Dunham’s arises out of the alleged unlawful sale of a firearm to Bowman, who then shot Shepher d. Bowman’s “criminal or unlawful misuse of a firearm . amounts to conduct . . by a third 5 party.” -12 -3-3(2). Following the holding of KS&E , we conclude that I.C. § 34 5 To the extent “third party” m ay have been ambiguous in this statute, our Supreme Court plainly refer s to in the context of party in the context of the firearm sale, as a third party Blackburn, the buyer, or first 901. Thus, here, Bowman, the buyer, and the statute. KS&E , 72 N.E.3d at Runnells’ lawsuit against KS&E is a third party under the statute in the context of Shepherd’s lawsuit against Dunham’s, and subsection (2) to her criminal misuse of the firearm applies . | Opinion 7 6 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

7 as a matter of law . See id. Dunham’s is immune from liability Thus, t he trial court err ed when it denied Dunham’s summary judgment motion. [9] Reversed. . Pyle, J., and Altice, J., concur | Opinion 7 7 of Page 18A | May 1, 2019 -2892 -PL Court of Appeals of Indiana

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