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2.2 Million Dollar Wrongful Death Settlement in Missouri ‘Negligent Entrustment of Gun’ Case against Pawn Shop

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2.2 Million Dollar Wrongful Death Settlement in Missouri ‘Negligent Entrustment of Gun’ Case against Pawn Shop

A Missouri gun dealer has agreed to pay $2.2 million to settle a wrongful-death suit brought by the mother of a mentally ill woman who purchased a gun from the dealer and who was tried for using it to kill her father.

The settlement is the largest since the 2005 enactment of the Protection of Lawful Commerce in Arms Act, a federal law that shields manufacturers and dealers from liability when their products are used in crimes, according to the Brady Center to Prevent Gun Violence.

“The gun industry and their insurance companies are waking up to the reality that whether jurors are conservative or progressive, gun-owners or not, they will hold gun stores accountable for irresponsibly supplying dangerous people with guns,” Jonathan Lowy, director of the Brady Center’s Legal Action Project and lead counsel for plaintiff Janet Delana, said in a news release.

The settlement comes several months after the Missouri Supreme Court issued a landmark ruling in Delana v. CED Sales ruling that federal law did not pre-empt Delana’s negligent entrustment claims against the dealer.

According to the Missouri Supreme Court’s decision, handed down on April 5, Delana, a resident of rural Lafayette County, Missouri, called gun dealer Odessa Gun & Pawn on June 25, 2012, and asked a store manager that he refrain from selling a firearm to her daughter, Colby Sue Weathers.

Delana told the manager that Weathers is mentally ill; according to her suit against the dealer, Delana’s daughter had been diagnosed with paranoid schizophrenia. Delana told the manager that Weathers had purchased a gun from Odessa Gun & Pawn the previous month and attempted suicide.

“I’m begging you,” Delana said to the manager, according the court’s decision. “I’m begging you as a mother, if she comes in, please don’t sell her a gun.” Two days later, Weathers purchased a Hi-Point .45-caliber pistol and ammunition from the store. Within one hour, she shot and killed her father Tex Delana, court papers state. She was charged with first-degree murder but found not guilty by reason of mental disease or defect and she was committed to a Missouri Department of Mental Health facility.

Janet Delana sued Odessa Gun & Pawn for wrongful death, alleging negligence and negligent entrustment. The defendants moved for summary judgment, arguing that the Protection of Lawful Commerce in Arms Act pre-empts Delana’s claims, and the U.S. Attorney’s Office for the Western District of Missouri filed on behalf of the federal government to intervene in the case to defend the constitutionality of the law.

In October, a Connecticut judge cited the federal law in a ruling to dismiss motions to dismiss a lawsuit filed by victims of the 2012 shooting at Sandy Hook Elementary School, finding that the case fit within the liability protections that the law created for the firearms industry.

In Delana, after a lower court found for the defendants and the case ended up before the Missouri Supreme Court, the state high court found that the federal law is constitutional and agreed with the defendants that it pre-empts Delana’s negligence claim.

But in a unanimous decision signed by Judge Richard Teitelman, the court wrote that the federal law does not pre-empt claims for negligent entrustment and that Missouri’s Restatement of Torts and the state’s common law recognize a cause of action for negligent entrustment against a seller who sells a dangerous item to a buyer knowing that the buyer is unlikely to safely possess the item.

In the Brady Center’s release regarding the settlement in the case, Alla Lefkowitz of the Brady Center’s Legal Action Project, who also appeared for Delana, said the Missouri Supreme Court’s ruling “opened the courthouse doors for victims” and that at least two suits have been filed in the Kansas City area against a gun dealer that allegedly negligently sold a firearm.

In addition to Lowy and Lefkowitz, Delana was represented by Kansas City attorneys L. Annette Griggs and David McCollum of McCollum & Griggs; and Kansas City solo attorney Jane Francis.

The defendants were represented by Kevin Jamison, a solo attorney based in Gladstone, Missouri; and Derek MacKay and David Buchanan, principals at Brown & James, which is headquartered in St. Louis.

Jamison said in an interview that he believes that the defendants would have been able to succeed on the merits of the case if it had continued to move forward, saying that witnesses who saw Weathers on the day of the shooting did not notice anything peculiar about her behavior.

“Their business is to do business and a settlement came down that would let them do that without harassment,” he said. He said Tuesday morning that a state legislator has already contacted him to discuss tightening liability protections in Missouri.

Assistant U.S. Attorney Charles Thomas appeared for the Justice Department.

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