United States Court of Appeals,
Eleventh Circuit.
No. 94-8343.
Sally Y. KING, Plaintiff-Appellant,
v.
STORY'S, INC., d/b/a Story's, Defendant-Appellee.
June 9, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-02721-CV-HTW), Horave T. Ward,
Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*, Senior
Circuit Judge.
GOODWIN, Senior Circuit Judge:
Sally King brought this diversity claim against Story's, Inc.,
alleging negligence in selling a rifle to one Jimmy Gene Hulen, an
ex convict, who used it to shoot and injure her. She appeals a
summary judgment for Story's.
Hulen had started to purchase the weapon on November 22, 1991,
by means of a "lay-away" payment. Hulen falsely completed two key
questions on the ATF Form 4473, denying to his prior criminal
record and denying his present use of controlled substances. But
he did not sign the form at that time because the salesperson
correctly indicated that the form should not be signed until the
sale was completed by payment and delivery. Hulen paid for and
picked up the weapon on December 26, 1991, without signing the ATF
Form 4473. Two days after taking possession of the rifle, Hulen
shot the plaintiff.
*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
Because the sale was made without obtaining the buyer's
signature on the ATF form, the sale was contrary to 27 C.F.R. §
178.124 (1992) and thus amounted to negligence per se. However, on
cross motions for summary judgment, the trial court granted the
defendant store's motion on the theory that the unwitting sale to
a unqualified buyer was not the proximate cause of the shooting.
Whether or not the sale was illegal, because the seller failed to
obtain the signature of the buyer, the court ruled the illegality
immaterial.
Putting aside the virtually undisputed point that the sale
was an act of negligence per se, the principal question on appeal
is whether, as a matter of law, the judge or the jury decides the
proximate cause issue in an action by the shooting victim against
the seller of a firearm to an unqualified buyer.
The case is controlled by our decision in Decker v. Gibson
Products Co., of Albany, Inc., 679 F.2d 212 (11th Cir.1982). There
the ex-convict admitted to the salesperson his prior conviction and
then exhibited a State of Florida document restoring his civil
rights. The sales person then apparently telephoned the local
sheriff and was told that it was legal to sell the handgun. We
held that the sale nonetheless violated 18 U.S.C. § 922(d)(1); and
we held further that it was for the jury, and not for the trial
judge, to decide whether the illegal sale was a proximate cause of
the death of the plaintiff's decedent.
The defendant argues that the seller of the rifle in this case
did not know or have reason to know of Hulen's legal disability to
purchase weapons, and therefore did not violate the 18 U.S.C. §
922(d) "knowing or having reason to know" clause relating to the
purchaser's disqualification. The trial court agreed with the
defendant that the deliberately false information given by the
unqualified purchaser on the unsigned form led the seller into the
wrongful sale. The trial court disregarded, however, the seller's
failure to have the purchaser sign the ATF form. The plaintiff
replies that without the signature, the sale could not lawfully be
completed, and therefore, the sale was illegal. Being illegal, the
sale was negligent as a matter of law, and the negligence was a
cause of the injury.
The trial court recognized that this plaintiff, as a victim of
a shooting by a convicted felon, is a member of the class of
persons Congress intended to protect by enacting the Gun Control
Act; that the injuries were of the type contemplated by the Act;
and that the sale was made in violation of the Act. The fourth
requirement for liability for violation of the Act is that the
violation was a proximate cause of the harm. In deciding that the
fourth requirement was not met because the sale without obtaining
the buyer's signature was not the proximate cause of the harm, the
court took away from the jury the question that we held in Decker
v. Gibson was for the jury. This was error.
While Decker v. Gibson applied Georgia law, and the trial
court in this case was looking to Alabama law, we have been cited
no relevant precedent that would treat the question of proximate
cause as a jury question in Georgia and as a law question in
Alabama. Indeed, the plaintiff has cited a number of Alabama state
cases tending to support the general proposition that proximate
cause ordinarily is for the jury. See, e.g. Sullivan v. Alabama
Power Co., 246 Ala. 262, 20 So.2d 224 (1944).
The summary judgment is VACATED and the cause is REMANDED for
further proceedings.