ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
JOHN C. THEISEN THOMAS W. BELLEPERCHE
MARK C. GARVIN BRIAN ENGLAND
HOLLY A. BRADY Hunt Suedhoff Kalamaros, LLP
Barnes & Thornburg Fort Wayne, IN
Fort Wayne, IN
DAVID K. HAWK
JEFFERY P. SMITH
Hawk, Haynie, Kammeyer & Chickedantz
Fort Wayne, IN
STEPHEN J. HARANTS
Miller, Carson, Boxberger &
Fort Wayne, IN
ATTORNEYS FOR AMICUS CURIAE
PHILLIP W. HORTON DENNIS A. HENIGAN
STEPHEN K. MARSH DANIEL VICE
MARA V.J. SENN Brady Center to Prevent Gun Violence
GILLIAN C. WOOD Legal Action Project
Arnold & Porter Washington, D.C.
LUKAS I. COHEN
DAVID E. VANDERCOY Meyer & Wyatt, P.C.
National Rifle Association Gary, IN
Defense Trial Counsel of Indiana
ESTATE OF ERYK T. HECK, BY PERSONAL )REPRESENTATIVE DONALD HECK, ) Supreme Court Cause No.
Timothy had also victimized his own family. Timothys parents owned Stoffer Construction
and employed him in the business. Timothy stole and forged checks from
the business. He also stole his grandfathers ATM card, spending about $8,000
without permission before he was discovered. Timothys final act was the taking
of the handgun, which he later used to kill Officer Heck.
In the months leading up to the killing, the Stoffers helped Timothy avoid
arrest. The Stoffers allowed Timothy to hide out at their lake cottage
to avoid arrest. (R. at 713.) And during Timothys stay at
the cottage in February 1997, his father notified Timothy of a tracking device
the police had placed on Timothys vehicle. (R. at 540-41.) Since
his release from prison in 1995, Timothy retained the keys to his parents
home. (R. at 594-96.)
Following the shooting, the personal representative of Officer Hecks Estate brought suit, alleging
negligence in the storing and monitoring of the Stoffers firearm. The Stoffers
and their business (the Stoffers) moved to dismiss the claim, or, in the
alternative, for summary judgment. After several motions and hearings, the trial court
granted the Stoffers motion to dismiss the Estates amended complaint with prejudice, and,
in the alternative, it entered summary judgment.
The Court of Appeals affirmed, finding that the Stoffers had no duty to safely store their handgun. See footnote Estate of Heck v. Stoffer, 752 N.E.2d 192, 199 (Ind. Ct. App. 2001), trans. granted. Judge Patrick Sullivan dissented, believing the Stoffers had a duty to exercise reasonable care under the circumstances. Id. at 206 (Sullivan, J., dissenting.) He further wrote:
[The Stoffers] knowledge of the facts and the further knowledge of the foreseeability of harm to police officers such as Deputy Heck, created a duty on the part of [the Stoffers] to exercise reasonable care under those circumstances. Whether there was a breach of that duty and if so, whether the breach was a proximate cause of Deputy Hecks death is . . . a different issue appropriate for resolution by a jury.
Id. at 208 (emphasis in original)(footnote omitted). We granted transfer and now reverse.
Standard of Review
Indiana Trial Rule 12(B)(8) states that If, on a motion, asserting [a 12(B)(6) motion] to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. The trial court explicitly considered matters outside the face of the complaint, so we apply a summary judgment analysis.
Under this familiar standard of review, summary judgment is proper if the evidence
shows there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Ind. Trial Rule
Ind. Dep't of Env't Mgmt. v. Med. Disposal Servs., Inc., 729 N.E.2d
577 (Ind. 2000). On appeal, we construe all facts and reasonable inferences
drawn from those facts in a light most favorable to the nonmoving party.
Butler v. Peru, 733 N.E.2d 912, (Ind. 2000). We carefully review
the trial court's decision to ensure that the responding party was not improperly
denied his day in court. Id. With these ground rules in
mind, our analysis follows.
A Gun Owners Duty of Care
To recover on a theory of negligence, a plaintiff must establish three elements:
(1) defendants duty to conform his conduct to a standard of care
arising from his relationship with the plaintiff, (2) a failure of the defendant
to conform his conduct to that standard of care, and (3) an injury
to the plaintiff proximately caused by the breach.
Miller v. Griesel, 261
Ind. 604, 611, 308 N.E.2d 701, 706 (1974).
Whether the defendant must conform his conduct to a certain standard for the
plaintiffs benefit is a question of law for the court to decide.
See Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953).
Courts will generally find a duty where reasonable persons would recognize and
agree that it exists. Gariup Const. Co. v. Foster, 519 N.E.2d 1224,
1227 (Ind. 1988). This analysis involves a balancing of three factors:
(1) the relationship between the parties, (2) the reasonable foreseeability of harm to
the person injured, and (3) public policy concerns. Webb v. Jarvis, 575
N.E.2d 992, 996 (Ind. 1991). We analyze these factors to determine if
the Stoffers had a duty to store their firearm safely.
A. Relationship Between the Parties. The relationship between Officer Heck and
the Stoffers was tenuous at best. Prior to the deaths of Officer
Heck and Timothy, the parties did not know each other. (See R.
at 572-73.) Their relationship was formed only because of Timothys acts.
The Stoffers were gun owners and parents of a drug-addicted felon fleeing from
police, to whom they gave unrestricted access to their home where they kept
a handgun. Officer Heck was the policeman attempting to apprehend Timothy.
This factor weighs in the Stoffers favor.
B. Reasonable Foreseeability of Harm. On the other hand, given the
facts of this case, the foreseeability of the harm weighs in the Estates
favor. By his own admission, Ray Stoffer indicated his awareness of Timothys
frame of mind. He told police:
[Timothy] had all this pressure, there was nothing left, there was no other way to go. For him to take a gun, he had [to] know . . . . [H]e knew the situation with the police, he knew they wanted him and for him to have a gun on him, he knew what was going to happen, I know he did. I told [my wife], he had to almost have a death wish . . .
(R. at 754.)
Several additional facts, taken as a whole, lead us to conclude that the
events of this case were foreseeable. Timothy had stolen from his family
several times. On three separate occasions, he was charged with resisting law
enforcement officers. He actively sought to evade police detection by hiding at
his parents lake cottage. Ray Stoffer believed Timothy would flee rather than
face his August 14
th sentencing hearing. (R. at 837.) The Stoffers
knew of Timothys lengthy criminal history. Finally and most important, Timothy retained free
and unfettered access to his parents home.
Other actions by the Stoffers lend further credence to the foreseeability of these tragic events. When their grandchildren visited, the Stoffers hid the handgun in the attic. (R. at 387, 395.) Moreover, upon Timothys release from prison, they took extra precautions to secure their cash, checks and other valuables based upon Timothys track record of stealing from family members. (R. at 605.) The Stoffers exercised due care to protect their grandchildren and valuables, but failed to safeguard the gun from a mentally disturbed, habitual and violent offender [with] free access to the premises. Estate of Heck, 752 N.E.2d at 207 (Sullivan, J., dissenting).
We decline to take a narrow view of
Webbs foreseeability of harm prong
and determine that this factor weighs in favor of the establishment of a
C. Public Policy Concerns. As to the public policy concerns implicated
in this case, our review of current scholarship reveals that Timothys theft and
usage of the gun to kill Officer Heck is depressingly common. Over
a quarter million firearms are stolen each year, and this arsenal is used
in thirty-five percent of the crimes involving guns. Andrew J. McClurg, Armed
and Dangerous: Tort Liability for the Negligent Storage of Firearms, 32 Conn.
L. Rev. 1189, 1227 (2000).
In Indiana alone, over 4,000 people were killed and an additional 8,800 were
injured by gun violence over the most recent five years for which data
was available. (Amicus Brady Ctr. to Prevent Gun Violence et al. Br.
at 3.) Preserving human life and reducing criminal acts are the most
important public policy goals.
These statistics take on greater significance when juxtaposed with the relatively slight burden
of reducing the risk of gun theft. Safe firearm storage, depending on
the particular circumstances, can be accomplished by numerous non-burdensome means. Simply locking
the front door, thereby preventing the publics access, may be sufficient in some
circumstances. Where the risk of theft is greater, more safety measures might
be required such as placing the gun in a safe, locking the
trigger, storing the gun and ammunition separately, taking back house keys, or changing
locks. Different factual situations call for different methods of safeguarding, but most
are relatively non-burdensome to gun owners.
Basing its decision on what it called the Indiana Constitutions longstanding and largely
unfettered right to bear arms, the Court of Appeals found that public policy
did not support a duty to store and keep guns safely.
of Heck, 752 N.E.2d at 201.
Of course, the Court of Appeals
was focusing on the dearth of legislation about storage of firearms. There
is a good deal of legislation on the topic of firearm safety -
legislation that rests on the constitutional notion that the right to bear arms
is not absolute. See Kellog v. City of Gary, 562 N.E.2d 685,
694 (Ind. 1990).
The legislatures actions persuade us that public policy supports recognition of a duty
in this case. A significant number of statutes govern the sale, use
and possession of firearms.
See, e.g., Ind. Code Ann. § 35-47-2.5 (West
2000) (regulating the sale and license of handguns).
Indiana Code § 35-47-2-7 is a particularly relevant statute. It prohibits the
sale or transfer of ownership of a handgun to a minor, felon, drug
abuser, alcohol abuser or mentally incompetent person.
See id. The legislature
has deemed the safety risk associated with the possession of handguns by these
individuals as too high. Implicit in this prohibition is the recognition that
a degree of responsibility is associated with handgun ownership.
The Stoffers argue that recognition of a duty of reasonable and ordinary care
in this case will create a new and never-before recognized cause of action.
(Appellee Stoffer Construction Br. at 12.) Not so. The cause
of action is negligence, and the duty of care is well established
that care which is reasonable under the circumstances. The Restatement (Second) of
Torts § 298 explains:
The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.
Based upon the significant number of gun-related crimes and the ease of securing
a firearm in the home, we find that public policy favors the safe
storage of firearms.
D. Conclusion About Duty. Our review of this cases facts reveals
that the balance of factors supports our conclusion that the Stoffers had a
duty to exercise reasonable and ordinary care in the storage and safekeeping of
E. Role of Right to Bear Arms. Professor Vandercoy has supplied
us with a thoughtful brief analyzing the propriety of the question of common
law duty we have discussed above. He also asserts that a legal
regime permitting the sort of civil liability sought by Heck would dampen, if
not stifle, the right of Indiana citizens to keep a firearm in their
dwellings for self-defense purposes. Amicus N.R.A. Br. at 11.
A constitutional guarantee does not shield parties from negligence claims tangentially related to
the exercise thereof. Several constitutional provisions guarantee the free exercise of religion,
but nothing precludes a person from suing for slip-and-fall injuries that occur on
a churchs premises.
See, e.g., Hanson v. St. Lukes United Methodist Church,
682 N.E.2d 1314 (Ind. Ct. App. 1997), affd in part and vacated in
part, 704 N.E.2d 1020 (Ind. 1998). In the same vein, the press
has the right to free exchange of thought and opinion, but newspaper distributors
are not shielded from negligence suits for injuries caused by their delivery drivers.
Similarly, Indiana gun owners are guaranteed the right to bear arms, but
this right does not entitle owners to impose on their fellow citizens all
the external human and economic costs associated with their ownership. Article I,
§ 32 does not preclude this action from going forward.
The trial courts dismissal of the Estates complaint was therefore error.
Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. 1994), we discussed
intervening acts. We held that if harm is a natural, probable, and
foreseeable consequence of the first negligent act or omission, the original wrongdoer may
be held liable even though other independent agencies intervene between his negligence and
the ultimate result. Id. at 520. Reasonably foreseeable intervening acts therefore
do not break the chain of causation and the original wrongful act will
be treated as a proximate cause. Id.
In this case, a gun owners duty to safely store and keep his/her
firearm protects against the very result the trial court ruled was an intervening
act that a third party would obtain the firearm and use it
in the commission of a crime. Denying recovery because the very act
protected against occurred would make the duty a nullity.
Guns are dangerous instrumentalities that in the wrong hands have the potential to
cause serious injuries. It is a responsible gun owners duty to exercise
reasonable care in the safe storage of a firearm. Amicus National Rifle
Associations literature bears this point out. The NRAs Safety & Training website
When Using or Storing a Gun, Always Follow These NRA Rules. . . . Store guns so they are not accessible to unauthorized persons. Many factors must be considered when deciding where and how to store guns. A person's particular situation will be a major part of the consideration. Dozens of gun storage devices, as well as locking devices that attach directly to the gun, are available.
National Rifle Association,
Safety & Training, available at http://www.nra.org/ (last visited Feb. 14,
Accepting the acts set forth in the affidavits submitted, we conclude that summary judgment is improper. It is alleged that the Stoffers stored their handgun between the cushions of a chair in their bedroom. It remains to be seen whether this constituted reasonable and ordinary care in this situation. The Stoffers argue that they did not show Timothy where the gun was hidden, but this is not dispositive. The question is whether leaving a loaded handgun in a hidden but accessible location was reasonable under these facts. This determination is a question for the jury. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind. 1987) (whether defendant exercised reasonable care is a factual determination for the jury).
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., CONCUR.