Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 467.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
Negligent Entrustment of Firearms
While the theory of negligent entrustment has been available for more than a century, it has been used only infrequently in this country. Of those cases which have employed the theory, the majority have involved an injury to a third party resulting from the entrustment of an automobile to one too young or otherwise incompetent to operate it safely. The theory, however, has potential for a much broader application. Negligent entrustment is a general theory of recovery under which the plaintiff alleges that the defendant was negligent in entrusting a dangerous instrumentality to one incompetent to use it safely, when he knew or should have known that the incompetent would injure a third party. Since firearms are clearly dangerous instrumentalities, demanding the highest degree of care, the theory is easily applied to a situation involving the entrustment of a firearm, and can provide an alternative to a suit against the negligent user of a gun, who will frequently be an undesirable defendant.
In Haskins v. Northeast Airlines, Inc., Minnesota adopted a [Page 468] formulation of negligent entrustment essentially identical to that found in the Restatement:
One who supplies [a] chattel to another whom [the] supplier knows, or should know, will be likely, because of his youth or inexperience, to use it in [a] manner involving [an] unreasonable risk of harm to others whom [the] supplier should expect to be in the vicinity of its use, is subject to liability for any bodily harm thereby caused to them.
This formulation demonstrates that negligent entrustment is simply a species of general negligence theory. The principles of a general case of negligence, around which the theory of negligent entrustment is formed, provide the basis for the distinctions which characterize three categories of negligent entrustment cases in Minnesota. Under the first of these categories the court looks to statutory regulation of the possession and transfer of firearms to define the duty owed to third persons by one who actively entrusts a firearm to another. The court has held that violation of an applicable statute makes the entrustor negligent per se. Under the second category the court uses general negligence principles to define the duty owed by one who actively entrusts a firearm to another, and to determine if that duty has been breached. Finally, under the third category, the court utilizes general negligence principles to analyze the possible negligence of one who, instead of actively providing another [Page 469] with a firearm, passively entrusts the firearm by leaving it in a place accessible to a child or one otherwise incompetent to handle it safely. A plaintiff is most likely to recover in a case under the first category, and least likely to recover under the last category.
Because general negligence principles apply in a negligent entrustment context the court has been willing to look to Minnesota statutory law for a particularized definition of the duty owed to the victim of a gunshot injury by the person who entrusted the gun to the incompetent user. In particular, the court has held that the statutes from which Minn. Stat. § 609.66(1)(7) is derived  can be used to define the duty owed in a case of negligence. Since this statute, which makes it a misdemeanor to furnish a child under fourteen years of age with a firearm of any kind unless he is under parental supervision, is virtually identical to the statutes relied on in Anderson v. Settergren and Kunda v. Briarcombe Farm Co. , it is clear that a civil duty could likewise be predicated upon it. A violation of this statute then is a breach of a duty owed to any person who is negligently or accidentally injured through the use of a firearm given to one who, being under the age of fourteen, is statutorily incompetent to handle it safely. The Minnesota Supreme Court has further held that violation of the statutes upon which § 609.66(l)(7) is based constitutes negligence per se if any injury re- [Page 470] sults from that violation. In Anderson 19 the court found that the defendant, a hardware store owner, violated a predecessor of Minn. Stat. § 609.66(l)(7) when he loaned a .22 caliber rifle and sold cartridges to a boy whom he knew to be only thirteen years old. The court determined that the statute could serve to define the duty owed in the case, and then concluded that the defendant was negligent, thereby affirming the plaintiffís claim that a violation of the statute constituted negligence per se. Likewise, in Kunda, the court held the defendant, a farmer, per se negligent when, to scare blackbirds away from his crops and in violation of the statute, he gave his thirteen-year-old employee shotgun with which the boy injured himself.
While Minn. Stat. § 609.66(l)(7) can be used to define the duty owed in a negligent entrustment case, thereby releasing the plaintiff from the obligation of affirmatively establishing the existence of a duty, the plaintiff must still establish proximate cause to present a prima facie case. However, the Minnesota Supreme Court has had no trouble in finding the proximate cause element met when, in violation of the statute, a firearm is entrusted to one incompetent to handle it safely. In both Anderson and Kunda the court rejected the argument that the userís negligent act of firing the gun was an intervening cause which insulated the entrustor from liability. In Anderson the court determined that the conclusion of liability was a proper one since "every man must be taken to contemplate the probable consequences of the act he does." In Kunda the court [Page 471] stated that the entrustment of the gun was "the original act leading without interruption by any independent cause to the accident and injury, and therefore the proximate cause thereof" The ease with which the conclusion of negligence per se was reached in each case indicates that the proximate cause element is not a significant barrier to a plaintiff who bases his claim of a duty owed to him on the violation of a statute. In such a case, the court will hold the defendant negligent per se in the fullest sense.
The court noted in Scott v. Independent School Dist. No. 709 that contributory negligence is not a defense against an allegation of negligent entrustment which bases its claim of a breach of a duty on the violation of Minn. Stat. § 609.66(l)(7). This is so because the legislature has sought to protect "a limited class of persons from their own inexperience, lack of judgment, inability to protect themselves or to resist pressure, or tendency toward negligence." Thus, an entrustee who negligently injures himself with a firearm will not be barred from recovery under the theory of negligent entrustment if the gun was provided to him in violation of a statute.
The Minnesota Legislature has recently enacted a series of statutes further regulating the circumstances under which a person may possess or transfer a handgun. Unlike Minn. Stat. § 609.66(l)(7), these statutes focus on the possessor, rather than the transferor, of the gun. The goal is to deprive those categories of people listed in Minn. Stat. § 624.713  of the opportunity to possess [Page 472] and use pistols. However, Minn. Stat § 624.7132(15)(b) does focus on the transferor, making a transferor who "transfers a pistol to a person who has made a false statement in order to become a transferee" guilty of a gross misdemeanor "if the transferor knows or has reason to know the transferee has made the false statement." Both statutes, then, seek to restrain people from providing firearms to persons incompetent to handle them. While the court has not so held, an analysis of this statute with regard to the elements listed in Kronzer v. First Natl Bank of Minneapolis should lead the court to conclude that a violation of Minn. Stat. § 624.7132(15)(b) results in a ruling of negligence per se if an injury results from that violation.
The majority of Minnesota cases alleging the negligent entrustment of a firearm have employed a statute to define the duty owed. However, to succeed in a claim of negligent entrustment, a plaintiff need not show the violation of a statute. The prima facie case can be established by the showing of a duty independent of a statutory proscription of the activity alleged to have been negligent. This can be seen in Clarine v. Addison, where a father entrusted a .22 caliber pistol to his nineteen-year-old son who then accidentally shot and injured another minor. While the defendant ultimately prevailed in the case, he did so not because the plaintiff failed to show the violation of a statute, but because the plaintiff failed to show that the defendant could foresee that giving a gun to his nineteen-year-old son would be likely to result in an injury. The court implied, in finding the father not negligent, that if the son had had a reputation for recklessness, or had otherwise demonstrated that it would be unsafe to entrust a firearm to his use, the plaintiffs suit would have succeeded. This reading of Clarine was affirmed in Republic Vanguard Insurance Co. v. Buehl by the courtís use of Clarine to support [Page 473] its rule that "where the parents cause the tort to occur through their own negligence, they may be held liable for the damages." The court reasoned that "we recognized such a cause of action when a minor child was given a .22-caliber pistol by his father," explaining that it had upheld the lower courtís decision in favor of the defendant in Clarine "only because the record before this court failed to adequately establish the possession of any dangerous propensities on the part of the minor son."
If the plaintiff can demonstrate that the entrustee had exhibited "dangerous propensities" before the gun was given to him, it seems clear that the court would find the defendant breached a duty owed to the plaintiff by supplying the entrustee with a gun. Specifically, the plaintiff might establish the breach of a duty by showing that the entrustee was extremely young, mentally deficient, reckless or had other dangerous tendencies "of which the parent was chargeable with knowledge."
Once the first two elements of the prima facie case, duty and breach, have been established, the proximate cause issue in a case where there is no claim that a statute has been violated is the same as in a case where there is such a claim: Is the intervening act of the entrustee a superceding cause which insulates the entrustor from liability? In this situation, the court should apply the standard used in Anderson and Kunda and should reach the same result. This can be seen through an examination of Trail v. Christian, Which held that the Dram Shop Act did not subsume a common law cause of action against a tavern owner for supplying 3.2 beer to an intoxicated customer. In finding the proximate cause element established in Trail, a case where the plaintiff could not predicate the breach of a duty on the violation of a statute, the court relied heavily on the discussion of proximate cause in Anderson, a case where duty was held to be specifically defined by a statute. By concluding that "the causation argument has little persuasive value as a ground for de- [Page 474] feating the employment of common-law remedies in this field" the Trail court established that the same proximate cause standard applies to both categories, that is, both when a statute is employed and when it is not. After all, a case such as Clarine, where a gunshot victim claims that an entrustor violated a duty owed to him by providing a firearm to an entrustee whom he should have foreseen would use that firearm unsafely, bears a closer factual similarity to Anderson than does Trail. If the court can apply the Anderson formulation of proximate cause in Trail, then it certainly should apply that formulation in a case such as Clarine.
The court may, however, assume a stricter stance on the proximate cause issue where the negligence is claimed to result not from the affirmative act of entrusting a firearm to someone incompetent to handle it safely but from the passive act of leaving a firearm accessible to such an individual. In Gordon v. Hoffman the court on just such grounds upheld a jury verdict finding a father not liable for the death of a small boy that was accidentally inflicted by his children. The father had left a loaded rifle behind some boxes in his closet and left his fifteen-year-old daughter to babysit his five-year-old son and the sonís friend who was of like age. The daughter, believing the gun to be unloaded, took it down from the closet and allowed the two boys to play with it. During a scuffle, one boy attempted to wrest the gun from the other and the friend was accidentally shot and killed. The jury returned a verdict in favor of the defendant, finding him negligent, but not the proximate cause of the boyís death. The Supreme Court upheld the verdict without discussing which test the jury should have applied in resolving the proximate cause issue, merely noting that there was no requirement that someone be found causally negligent. In his dissent, Justice Otis made clear that he thought the juryís finding of negligence correct, but that he disagreed with the conclusion that the defendant was not the proximate cause of the death. He felt that the juryís "understanding of the concept of proximate cause was faulty as a matter of law" and that "where the defendant has been found negligent in such circumstances, his negligence had to be a direct cause of the decedentís death." Justice Otisí understanding of the test to [Page 475] be applied to the issue of proximate cause in such a case is more in line with the test applied in earlier negligent entrustment cases than is the approach taken by the majority. For the jury to conclude that the father was negligent it would have been necessary for them to find that he knew or should have known that it was likely that his children would get hold of the gun and would be likely to cause an injury with it. Since the proximate cause standard used in Anderson and affirmed in Trail is likewise based on foreseeability, Justice Otis was correct in concluding that if this standard is applied to this set of facts, the fatherís "negligence had to be a direct cause of the decedentís death." If the father could foresee the injury in the context of the duty issue, then presumably he could also foresee the injury in the context of the proximate cause issue. If the majorityís conclusion was not simply a result of judicial deference to a jury verdict, it could be assumed that a new, stricter, proximate cause test was applied, if not articulated.
With the possible exception of passive entrustment cases, Minnesota negligent entrustment law places a fairly light burden on the plaintiff. The use of statutes to define the duty involved in the handling of firearms, the high degree of care demanded at common law [Page 476] of those handling firearms, and the liberal interpretations of proximate cause and contributory negligence principles combine to provide the victim of a gunshot injury with a fairly ready vehicle by which to seek compensation.
Brian J. Todd
1. Dixon v. Bell, 5 Maule & Selwyn 198,105 Eng. Rep. 1023 (1816), commonly considered the leading case in this area; Mattson v. Minn. & N.W. Ry., 95 Minn. 477, 104 N.W. 443 (1905).
2. Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 ARK. L. REv. 10 1 (1966).
3. Id. at 101 n.3.
4. The doctrine of negligent entrustment is not a species of vicarious liability. The concern is not with the negligence of the user, since the owner of a gun is not being held liable for the negligence of the person to whom he entrusted the gun. Rather, the focus is on the entrustorís independent negligent act of giving the gun to one incompetent to handle it with proper care.
5. RESTATEMENT (SECOND) OF ToRTs § 390 (1965). The Restatement uses the general term "chattel":
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Id (emphasis added).
6. Delgado v. Lohmar, 289 N.W.2d 479 (Minn. 1979); Sutor v. Rogotzke, 292 Minn. 224, 194 N.W.2d 283 (1972); Com v. Sheppard, 179 Minn. 490, 299 N.W. 869 (1930).
7. Holzer, Liability to the Injured Third Party for Negligent Entrustment of a Firearm, 59 CHI. B. REC. 346 (1978).
A list of those incompetent to handle firearms might include, for example, children, exfelons, addicts or inebriates, and adolescents known to be reckless. See MINN. STAT. § 624.713 (1980). In general, such individuals are less able to pay large verdicts than are those who entrust them with firearms, that is, parents and shopkeepers, particularly since the latter frequently carry some form of liability insurance.
8. 266 Minn. 210, 123 N.W.2d 81 (1963).
9. Id. at 83 n.4.
10. Minnesota has essentially adopted William Prosserís formulation of the elements of negligence. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 30 (1971). Minnesotaís version of those elements are:
(2) a breach of that duty, and
(3) an injury proximately resulting from that breach.
Farmers & Merchants State Bank v. Ebbeson, 300 Minn. 517, 218 N.W.2d 688, 689 (1974); Marlow v. City of Columbia Heights, 284 N.W.2d 389, 392 (Minn. 1979). These elements, then, must be shown by the victim of the gunshot injury against the person who entrusted the gun to one incompetent to handle it safely.
In a recent article the elements of a prima facie case of negligent entrustment were listed with more specificity.
1) Proof that the entrustee was incompetent, inexperienced or reckless; 2) That the entrustor "knew or had reason to know" of the entrusteeís condition or proclivities; 3) That there was an entrustment of the chattel; 4) That the entrustment created an appreciable risk of harm to the plaintiff and a relationship duty on the part of the defendant; 5) That the harm to the plaintiff was "proximatelyí or "legally" caused by the negligence of the defendant.
Woods, Negligent Entrustment Revisited: Developments 1966-1976, 30 Ark L. REV. 289 (1976).
11. Kronzer v. First Natíl Bank, 305 Minn. 415,423,235 N.W.2d 187,193 (1975), establishes in general that violation of a statute which particularly defines the duty owed is negligence per se.
12. A statute will be held to define a civil duty in Minnesota if it is found to be exclusively or in part:
(a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.
RESTATEMENT (SECOND) OF ToRTs § 286 (1965), quoted in Kronzer v. First Natl Bank, 305 Minn. 415, 423, 235 N.W.2d 187, 193 (1975).
13. See infra notes 20 & 22.
14. Anderson v. Settergren, 100 Minn. 294, 111 N.W. 279 (1907); Kunda v. Briarcombe Farm Co., 149 Minn. 206, 183 N.W. 134 (1921).
15. MINN. STAT. § 609.66(1)(7) (1980):
Whoever does any of the following is guilty of a misdemeanor. . . . (7) Without the parents or guardianís consent, furnishes a child under 14 years of age, or as a parent or guardian permits such child to handle or use, outside of the parentís or guardianís presence, a firearm or airgun of any kind, or any ammunition or explosive. . . .
16. 100 Minn. 294, 1 It N.W. 279 (1907).
17. 149 Minn. 206, 183 N.W. 134 (1921).
18. It is true that the current statute focuses exclusively on the act of furnishing a firearm to one under fourteen years of age, while the previous statutes made both the possession of and the act of furnishing a firearm a misdemeanor. However, since it is the entrustorís duty that is defined by the statute in a case of negligent entrustment, the pertinent portion of the statute has remained essentially unchanged.
19. Anderson v. Settergren, 100 Minn. 294, 111 N.W. 279 (1907).
20. MINN. STAT. § 6946 (1894):
That it shall be unlawful for any minor person under the age of fourteen years to handle or have in his possession or control, except while accompanied by or under the immediate charge of his parent or guardian, any firearm of any species whatever, for hunting or target practice or any other purpose whatever. And anyone violating any of the provisions of this act, or aiding or knowingly permitting any minor person of such age, except as herein provided, to violate the same, shall be deemed guilty of a misdemeanor.
21. 149 Minn. 206, 183 N.W. 134 (1921).
22. MINN. STAT. § 8804 (1913) states:
No minor under the age of fourteen years shall handle, or have in his possession or under his control, except while accompanied by or under the immediate charge of his parent or guardian, any firearm of any kind for hunting or target practice or any other purpose. Every person violating any of the foregoing provisions, or aiding or knowingly permitting any such minor to violate the same, shall be guilty of a misdemeanor.
23. Medved v. Doolittle, 220 Minn. 352, 354, 19 N.W.2d 788, 790 (1945); Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981).
24. Anderson, 100 Minn. at 295-96, 111 N.W. at 280-81.
25. Kunda, 149 Minn. at 206, 183 N.W. at 135.
26. The court limited the application of MINN. STAT. § 609.66
(1)(7) (1980) as a predicate for civil liability somewhat in Johnson v. Holzemer, 263 Minn. 227, 237, 116 N.W.2d 673, 679 (1962), stating:
We do not feel that under its provisions a person having no such relationship to the minor [that is, a parent, a guardian, a teacher, a law enforcement officer or a person owning property upon which a violation of the statute is occurring if such violation is directed to his attention], and without power to give or enforce commands or directions to him, should be held to be in violation of the statute merely because he is aware of the minorís use of a gun contrary to its provisions.
By declining to find that such persons violated the statute, the court was also declining to find that their actions constituted a breach of a duty owed to the victim.
27. 256 N.W.2d 485 (Minn. 1977).
28. Id. at 488-89.
29. Though the issue was not discussed, it is noteworthy that the plaintiff recovered in Kunda. 149 Minn. at 206, 183 N.W. at 134, although he, as the entrustee, injured himself rather than a third person.
30. MINN. STAT. §§ 624.711 to -.718 (1980).
31. Those listed are: a) Persons under 18 years of age; b) Persons who have been convicted of a crime of violence; c) Persons who have ever been committed as "mentally ill," ".mentally deficient," or "dangerous to the public"; d) Persons who have been convicted of possession, use or sale of a controlled substance; e) Persons who have been confined or committed as "inebriate" persons. Exceptions apply to all of these categories.
32. 305 Minn at 423, 235 N.W.2d at 193. See supra note 12. (1) The statute is designed to protect the class of potential gunshot victims. Clearly the victim of a gunshot injury fits within this class. (2) The interest to be protected is a personís interest in bodily safety. That interest is clearly invaded when a person is shot and injured by the entrustee of a pistol. (3) The particular hazard to be guarded against by MINN. STAT. § 624.7132 subd. 15(b) is the danger to third persons when an entrustor negligently provides an entrustee with a firearm, having reason to know that the entrustee is incompetent to use it. This hazard obviously coincides with the fact situation in a negligent entrustment case.
Thus, all of the elements listed in note 12 are satisfied by MINN. STAT. § 624.7132 (15)(b) (1982).
33. 182 Minn. 310, 234 N.W. 295 (1931).
34. He need not have foreseen the specific injury. only that an injury would result. Orwick v. Belshan, 304 Minn. 338, 349, 231 N.W.2d 90, 97 (1975).
35. Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 330, 204 N.W.2d 426, 428 (1973).
36. Id. at 331, 204 N.W.2d at 428.
37. Clarine v. Addison, 182 Minn. 310, 311, 234 N.W. 295, 296 (1931).
38. The standard used in Kunda and Anderson focused on the issue of whether the entrusteeís act of firing the gun was a superseding intervening cause. In both cases the court concluded that the entrustorís negligence was not superseded because the entrusteeís negligent act was foreseeable. See supra text accompanying notes 23-25.
39. 298 Minn. 101, 213 N.W.2d 618 (1973).
40. MINN. STAT. § 340.95 (1980).
41. Anderson, 100 Minn. at 294, 111 N.W. at 279.
42. Trail, 298 Minn. at 110, 213 N.W.2d at 623.
43. 182 Minn. 310,234 N.W. 295 (1931).
44. 303 N.W.2d 250 (Minn. 1981).
45. In Minnesota, the terms "direct cause" and "proximate cause" are used interchangeably. Orwick v. Belshan, 304 Minn. 338, 231 N.W.2d 90 (1975).
46. Anderson, 100 Minn. at 294, 111 N.W. at 279; Kunda, 149 Minn. at 206,183 N.W. at 134.
47. Gordon, 303 N.W.2d at 253.
48. The majority may have had in mind a more recent formulation of the proximate cause standard when a superseding cause issue is present. The initial question in this formulation is whether "the negligent conduct was a substantial factor in bringing about the injury." Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980). Next, the jury must determine whether the intervening cause present in the case superseded the defendantís negligent conduct. For an intervening act to be superseding, all of the following elements must be met:
1) Its harmful effects must have occurred after the original negligence;
2) It must not have been brought about by the original negligence;
3) It must actively work to bring about a result which would not otherwise have followed from the original negligence;
4) It must not have been reasonably foreseeable by the original wrongdoer.
Ruberg v. Skelly Oil Co., 297 N.W.2d 746,750 (Minn. 1980); J. HETLAND & 0. ADAMSON, MINNESOTA PRACTICE, JURY INSTRUCTION GUIDE 142 (1974).
But, even under this test, since all four of the elements must be met, the entrusteeís act in Gordon, 303 N.W.2d at 250, could not have been superseding. As noted above, if the entrusteeís act was foreseeable to the defendant in the context of the duty issue, it must likewise have been foreseeable in the context of the proximate cause issue. Schmidt v. Beninga, 285 Minn. 477, 484, 173 N.W.2d 401, 408 (1970); Christianson v. Chicago St. P. M. & 0. Ry., 67 Minn. 94, 97, 67 N.W. 640, 641 (1896). Therefore, Justice Otisí conclusion that proximate cause follows as a matter of law from the conclusion of negligence is correct, even under this test, unless the court was willing to conclude that the entrustorís negligent act was not a substantial factor in bringing about the injury. It seems unlikely that the court would accept such a conclusion, in light of the extremely high degree of care demanded of those who handle firearms. See supra note 6.