T & M. JEWELRY, INC. V. HICKS
TORTS – Negligence and Gun Control Act
In this appeal, the Supreme Court sought to determine whether the sale of a firearm by Lexington store, The Castle, to an 18 year-old who later accidentally shot and injured the claimant (Hicks) constituted negligence per se and/or common law negligence. TC had granted SJ to The Castle on both claims, and the COA affirmed the grant of SJ on the per se claim, but reversed the TC on the common law claim.
Per Se Claim – The Gun Control Act of 1968 prhobits any licensed dealer from selling firearms to anyone under 21 years of age. While The Castle clearly violated this statute, the SC noted that the statute did not explicitly provide a civil remedy and ultimately held that it also did not implicitly provide a private civil remedy. The SC found no evidence that Congress intended to provide a federal right to damages. Turning to Kentucky’s negligence per se statute (KRS 446.070), the SC held that this statute only implicates state statutes rather than federal statutes or local ordinances.
Common Law Claim – While not constituting per se negligence, the SC analyzed whether a violation of the federal statute could satisfy common law negligence. Not surprisingly, the SC focused on the duty element of a negligence claim and whether the type of harm alleged by Hicks was foreseeable. The SC weighed the fact that an 18 year-old can legally possess a firearm under Kentucky law as well as federal law against the fact that a federally licensed dealer is nevertheless prohibited from selling a firearm to an 18 year-old person, and concluded that the federal statute does indeed have a direct bearing on foreseeability. The SC felt that while not controlling, the standard set by the federal statute was nevertheless persuasive. The SC noted that licensed dealers are already bound by this standard so applying it to Kentucky common law negligence actions places no new burden on the dealer.
The SC affirmed the COA’s ruling on both claims, and remanded the case to the TC to proceed on the common law negligence claim and whether The Castle’s actions breached its duty to Hicks by selling the firearm to her 18 year-old boyfriend.
Roach Dissent – While agreeing with the majority on the per se claim, Justice Roach felt that the focus should be on Kentucky public policy when determining the universal duty of care by which a licensed dealer is bound. He noted that the General Assembly has chosen not to adopt the provisions of the Gun Act that prohibit the sale of firearms to persons under 21, but instead have chosen to expressly adopt a different standard that sets the relevant age at 18. In his view, this is the current public policy in Kentucky and should be analyzed along with state statutes and common law theories to construe the duty of care under Kentucky law with consideration of the federal statute. The reach of the federal statute should be limited to federal criminal penalties against The Castle, which Justice Roach felt did not violate any duty under Kentucky law when it sold the firearm to the 18 year-old. Justice Graves joins.
Digested by Chad Kessinger.