Robert Fleming had been drinking for nearly 24 hours straight (save for a one-hour period during which he passed out) when he entered Walt Failor’s gun shop. Although Fleming smelled of alcohol, and according to Fleming, wet his pants prior to entering the store, Mr. Failor agreed to sell Fleming a rifle. Immediately thereafter, Fleming shot his estranged wife to death.

The Washington Supreme Court first recognized a cause of action for negligent entrustment of a firearm in Bernethy v. Walt Failor’s, Inc., a case involving the above facts.1 The court adopted the Restatement (Second) of Torts ¤ 390 standard, which imposes liability upon one who supplies a chattel to another whom the supplier knows or has reason to know (because of his youth, inexperience, or otherwise) to be likely to use it in a manner involving unreasonable risk of physical harm. The court’s opinion in Bernethy was based upon a strong public policy against giving or loaning a dangerous instrumentality to one who is reckless or incompetent.

The Washington, D.C. area sniper shootings also triggered litigation in Washington on this issue.2 Relying heavily on Bernethy, the court denied defendant Bulls Eye Shooter Supply’s motion to dismiss on the grounds that John Allen Muhammad and Lee Boyd Malvo--”unfit persons” (Muhammad was the subject of a domestic violence restraining order, and Malvo was a juvenile as well as an illegal alien)--allegedly obtained from Bulls Eye the Bushmaster assault rifle used in the shootings. Notably, the weapon was allegedly one of more than 230 firearms that “disappeared” from the store over a two year period; Bulls Eye did not sell the rifle to Muhammad or Malvo. Nonetheless, Bulls Eye owed a common law duty to third parties to use reasonable care in the sale and distribution of firearms. Whether the defendant’s conduct was reckless and incompetent so as to violate this duty was a question for the jury.

Defendants frequently argue that the shooter’s intervening criminal or negligent acts broke the chain of causation. As the cases above make clear, where the intervening criminal act is foreseeable, a defendant may be held liable even where another individual committed the act that injured the plaintiff. As the Bernethy court noted, “intervening criminal acts may be found to be foreseeable, and if so found, actionable negligence may be predicated thereon.”

Outside the context of firearm sales, an individual who gives or inadvertently invites access to his or her firearm by failing to properly secure it may be held civilly liable for the negligent or even criminal act of another if circumstances suggest that the gun is likely to be misused, even under far less egregious circumstances than the above-referenced cases.

In cases involving parents whose children injure or kill another with a firearm, parental liability is generally predicated upon the parent’s own negligence in failing to secure the firearm from a child incapable of appreciating the risk the gun poses. The same logic also applies to cases in which a defendant stores a firearm in a manner that invites theft.

And the moral of this story? Is it prudent to keep a pistol under your pillow? Should you think twice about allowing your child to have a BB gun? It is crucial to consider the supplier’s knowledge of the likelihood that the person to whom he or she entrusts the firearm will use it dangerously.3 Thus, the answer, of course, is that it depends upon the circumstances. n

1. Bernethy v. Walt Failor’s, Inc., 97 Wash.2d 929 (1982).
2. Johnson v. Bulls Eye Shooter Supply, 2003 WL 21639244 (2003).
3. See, e.g., McGuiness v. Brink’s Incorporated, 60 F.Supp.2d 496 (D. Md. 1999).