Kitchen v. K-Mart Corp.

Supreme Court of Florida · 1997 · Torts

TortsNegligenceNegligent EntrustmentForeseeabilityFirearmsfirearm salesintoxicated purchaserthird-party injury

Facts

After drinking heavily throughout the day, Knapp went from a bar to a K-Mart store and bought a .22 caliber bolt-action rifle and bullets. Plaintiff's experts testified that if he had consumed the amount of alcohol he described, his intoxication would have been apparent; the clerk also testified that Knapp could not legibly complete the required federal firearms form, so the clerk filled out another form and had Knapp initial the answers and sign it. Shortly after leaving the store, Knapp followed Kitchen's car, forced it off the road, and shot her in the neck, leaving her permanently quadriplegic. K-Mart had an internal policy against selling firearms to intoxicated persons, though the clerk testified Knapp did not appear intoxicated.

Issue

Can a retail seller of a firearm be held liable in common law negligence to a third person injured by a purchaser when the seller knows or has reason to know the purchaser is intoxicated? More specifically, does Florida law recognize a negligent entrustment claim under these circumstances, or is such liability barred by statute?

Rule

Under Florida law, a common law negligence action may lie against one who supplies a firearm to another when the supplier knows or has reason to know the person is likely, because of intoxication or other incompetence, to use it in a manner involving an unreasonable risk of physical harm to others. Selling a firearm to an intoxicated person creates a foreseeable zone of risk sufficient to satisfy the duty threshold, and Florida statutes do not displace that common law liability absent clear legislative intent.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a sporting-goods counter in Orlando, clerk Nina Lopez sold a hunting rifle to Derek Boone after he stumbled into the display, smelled strongly of liquor, and spoke with slurred speech. Twenty minutes later, Derek fired the rifle from his pickup and seriously injured a pedestrian waiting at a bus stop.

If the pedestrian sues the store for common law negligence in Florida, what is the strongest argument for allowing the claim to proceed?

Explanation. Florida recognizes a common law negligence claim consistent with Restatement § 390 when a supplier provides a firearm to a person it knows or has reason to know is likely, because of intoxication or other incompetence, to use it in a manner involving unreasonable risk of harm. Selling a firearm to an apparently intoxicated person creates a foreseeable zone of risk sufficient to satisfy the duty threshold. The case does not impose strict liability, does not require an express civil statute authorizing suit, and does not hold that later criminal misuse automatically negates duty.