Johnson v. Bass Pro Outdoor World

547 P.3d 556

Marquise JOHNSON, Appellant,

v.BASS PRO OUTDOOR WORLD, LLC, Fabbrica d’Armi Pietro Beretta, S.p.A., and Beretta U.S.A. Corp., Appellees.

No. 126,314

Court of Appeals of Kansas.

Oral Argument Held November 14, 2023

Opinion Filed May 3, 2024

Syllabus by the Court

1. Appellate courts review a trial court’s ruling on a motion for summary judgment de novo, meaning we are unconstrained by the lower court’s ruling because we are in the same position as the lower court. We must view the facts in the light most favorable to the party opposing summary judgment. If reasonable minds could disagree about the conclusions to be drawn from the evidence—if there is a genuine issue about a material fact—summary judgment is inappropriate.

2. The Protection of Lawful Commerce in Arms Act precludes civil actions for damages against manufacturers and sellers of firearms "resulting from the criminal or unlawful misuse of" a firearm. That type of action is known as a "qualified civil liability action" in the Act. 15 U.S.C. § 7902(a); 15 U.S.C. § 7903(4), (5)(A).

3. When a federal statute contains an express preemption provision like the one used in the Protection of Lawful Commerce in Arms Act, we look to the plain language of that provision to determine the scope of the preemption. That is the best evidence of congressional intent.

4. An analysis of the scope of any express preemption provision in a federal statute must begin with the text. The interpretation of that language is guided by two principles about the nature of that preemption: (1) the presumption against preemption of the historic police powers of the states and (2) Congress’ purpose in enacting the legislation.

5. When a federal statute’s text is ambiguous, courts can rely on the basic principles of federalism to resolve any ambiguity in a way that does not broadly intrude on the police power of the states.

6. The Protection of Lawful Commerce in Arms Act provides that qualified civil liability actions "may not be brought in any Federal or State court." 15 U.S.C. § 7902(a). This provision expressly preempts state tort actions that are included in the definition of "qualified civil liability actions." The scope of the preemption is determined by the plain language of that definition and the exceptions listed in 15 U.S.C. § 7903(5).

7. Generally, a culpable mental state of at least recklessness is an essential element of every crime. K.S.A. 21-5202(a). Where the statute defining the crime does not prescribe a culpable mental state, one is nevertheless required unless the definition of the crime "plainly dispenses with any mental element."

8. "If the definition of a crime prescribes a culpable mental state with regard to a particular element or elements of that crime, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the crime unless otherwise provided." K.S.A. 21-5202(g).

Appeal from Lyon District Court; Merlin G. Wheeler, judge.

David R. Morantz, Lynn R. Johnson, and Richard L. Budden, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri; Erin Davis, pro hac vice, of Brady United Against Gun Violence; and Michael C. Helbert, of Helbert & Allemang, of Emporia, for appellant.

Daniel J. Buller, of Foulston Siefkin LLP, of Overland Park, David E. Rogers, of the same firm, of Wichita, and Craig A. Livingston, pro hac vice, of Livingston Law Firm, P.C., of Walnut Creek, California, for appellees.

Before Hill, P.J., Cline and Isherwood, JJ.

Hill, J.:

Summary judgment motions are one way for parties in civil disputes to avoid an expensive and unnecessary trial. But such motions are not a substitute for a trial. If the undisputed facts and the controlling law compel summary judgment, then the motion should be granted. If a judge, however, feels compelled to grant a summary judgment motion on facts the judge finds to be true, then the motion should be denied because a summary judgment motion is not a fact-finding procedure. Hearing such motions is not a time to weigh evidence. That function is left for the jury to perform.

This is an interlocutory appeal by Marquise Johnson of an order granting summary judgment. The order dismissed his product defect lawsuit against a gun seller, the distributer, and the manufacturer of the pistol used in shooting him. In doing so, the court relied on provisions of the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903. Johnson contends that the court was in error by replacing the jury and finding facts. We agree and reverse.

We begin with the facts. Then, to resolve this dispute, we must delve into the concept of federalism. That legal doctrine controls how state and federal laws mesh so there are clear lines of authority and control. We then consider the Act itself, analyzing two key subdivisions of the law. Finally, we examine the arguments of the parties and explain why we think the district court prematurely granted summary judgment.

Firearms are dangerous to life and limb.

Shortly after turning 21, Andre Lewis went to the Bass Pro Outdoor World in Olathe, Kansas, and bought a Beretta APX 9mm pistol. This was his first gun purchase, but Lewis was no stranger to guns. From an early age, Lewis had handled shotguns and rifles. He had also fired Glock and Hi-Point pistols as well as various revolvers. In middle school, Lewis attended a Hunter’s Safety Course. He received his first hunting rifle when he was 18. Lewis bought the APX pistol for self-protection and stored the gun under the driver’s seat of his car. Several warnings about the safe operation of his specific pistol came with his purchase.

Lewis ignored several warnings.

Lewis received the Beretta APX Pistol User Manual during his purchase of the firearm. The manual cautioned users that a live cartridge of ammunition could remain in the firing chamber even if the magazine is removed. In particular, the manual provided: "WARNING: Always visually inspect the firing chamber to ensure that it is empty. The chamber is empty when no cartridge is visible when looking from the ejection port into the open chamber." Lewis did not, however, read the user manual and did not know the difference between the APX pistol and other guns that he had previously handled.

Lewis also received Bass Pro Shop’s "10 Commandments of Safe Gun Handling" during his purchase of the firearm. He only spent a few minutes reviewing the safety sheet before certifying that he read and understood its contents.

Besides the user manual and commandments, two warnings were stamped directly on the gun: "READ MANUAL BEFORE USE" and "FIRES WITHOUT MAGAZINE."

The APX pistol also has a unique feature known as the "striker deactivation button," which Lewis could have pressed to safely release the striker before disassembly.

If all other warnings remained unheeded, at the very least Lewis’ experience and training with firearms should have prevented this incident. Lewis knew the danger of pointing a gun at another person. Lewis knew to treat every firearm as if it were loaded. Lewis knew how to pull the slide of the pistol back to visually inspect the firing chamber to check for a live round.

Inattention and inadvertence lead to a lost limb.

While driving his football teammates home from a team dinner, Andre Lewis pulled the pistol out from under his seat. His teammate, Marquise Johnson, who sat in the front passenger seat, asked to see the gun. While stopped at a stoplight, Lewis removed the magazine and handed the gun to Johnson. Johnson briefly looked at the gun and, as he passed it back to Lewis, asked Lewis if he knew how to clean the gun. Lewis boasted that he knew how to disassemble the gun in "2.2 seconds." Lewis disassembled the gun to prove his claim.

Lewis believed the gun was unloaded. That was a mistake. He did not know the gun could fire after the magazine was removed.

He also assumed the pistol worked just like the Glock pistols he had handled before. Believing the pistol worked just like the Glock pistol, Lewis thought he needed to pull the trigger to remove the slide.

Lewis pointed the barrel of the pistol at Johnson and pulled the trigger. The bullet that remained in the chamber of the gun discharged and struck Johnson’s legs. Lewis immediately drove to the hospital while he and his teammates applied pressure to the wound. Lewis' inattention and inadvertence resulted in the amputation of Johnson’s left leg above the knee.

After an investigation, no criminal charges were filed against Lewis.

Following the Incident, the Emporia Police Department ruled that the shooting was an accident. The Lyon County Attorney’s Office investigated the incident and was unable to "find sufficient facts to support a conclusion of reckless behavior as defined by our statute." Further determining that the behavior "does not appear to meet the legal definition of disregarding a substantial and unjustifiable risk or result." The prosecutors also determined Lewis had not violated the criminal discharge of a firearm on a public road statute because his actions were not those which "the legislature contemplated in enacting the statute." Lewis was never charged with the criminal discharge of a firearm.

Johnson seeks damages.

Johnson sued Lewis, the shooter; Fabbrica d’Armi Pietro Beretta S.p.A., the designer and manufacturer of the gun; Beretta U.S.A Corp., the importer and distributer of the gun; and Bass Pro Outdoor World, LLC, the retailer of the gun. Johnson’s theory of the case was that the gun was unreasonably dangerous because it lacked reasonable safety features commonly available such as magazine disconnect safety to prevent the gun from firing after the magazine has been removed and a loaded chamber indicator to alert the user that a round of ammunition is in the chamber.

Beretta U.S.A. and Bass Pro moved for summary judgment under the Protection of Lawful Commerce in Arms...