concurring: I agree with the majority that Elizabeth Shirley has a cause of action against Joe and Patsy George and Baxter Springs Gun and Pawn Shop under a theory of negligent entrustment that should have survived summary judgment. I also agree with the majority that Shirley does not have a cause of action against the defendants under a negligence per se theory based on current Kansas case law. However, I write separately to suggest *722that the Kansas Supreme Court reevaluate the requirements for recovery under the theory of negligence per se in Kansas.
The doctrine of negligence per se is summarized as follows:
“Negligence per se is ordinarily found where the actor has violated a duty imposed by legislative enactment. Where a legislative enactment imposes a specific duty to protect the safety of others, the failure to perform that duty is negligence per se. Negligence per se serves to establish the existence of the defendant’s breach of a legally cognizable duty owed to the plaintiff.
“A finding of negligence per se, however, only subjects the defendant to possible liability; it does not establish liability. A showing is required that such negligence was a proximate cause of the injury or damages sustained.” 57A Am. Jur. 2d, Negligence § 685.
Negligence per se is a form of ordinary negligence that results from violation of a statute. In order to recover damages under negligence per se, the plaintiff must establish that the defendant violated a statute enacted to protect public safety and the violation caused the plaintiffs damages. The defendant’s violation of a safety statute creates a presumption that the defendant violated a legal duty to exercise ordinary care to the plaintiff. The negligence per se doctrine, as traditionally applied in most states, does not depend on the grant of a private right of action by the legislature.
Under Kansas law, the elements of negligence per se are (1) a violation of a statute, ordinance, or regulation and (2) the violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must establish that an individual right of action for injury arising out of a violation of the statute was intended by the legislature. Pullen v. West, 278 Kan. 183, Syl. ¶ 3, 92 P.3d 584 (2004).
Kansas courts generally use a two-part test in determining whether a private right of action is created. First, the party must show that tire statute was designed to protect a specific group of people rather than to protect the general public. Second, the court must review legislative history in order to determine whether a private right of action was intended. 278 Kan. 183, Syl. ¶ 4. If the plaintiff can prove that a statute, ordinance, or regulation was enacted to protect a specific group of people, the plaintiff must also *723prove that he or she is a member of the protected class. See Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, Syl. ¶ 1, 804 P.2d 978 (1991). Kansas appellate courts generally will not infer a private cause of action where a statute provides criminal penalties but does not mention civil liability. Pullen, 278 Kan. at 199.
Thus, in order to recover under negligence per se in Kansas, the plaintiff must establish that the legislature intended to create an individual right of action arising from the violation of a statute. This has not always been a requirement under Kansas law. In Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971), the plaintiff sought to recover damages for personal injuries received when she fell down some steps at a department store. The plaintiff claimed the defendant failed to provide handrails for the steps in violation of the city building code. In holding the plaintiff s negligence per se claim should have been submitted to the jury, the Kansas Supreme Court stated: “It is the unquestioned rule of this jurisdiction that the breach of a duty imposed by law or ordinance constitutes negligence per se, providing a basis for the recovery of damages proximately resulting therefrom. [Citation omitted.]” 207 Kan. at 74-75. The court in Noland did not mention any additional requirement of an individual right of action for recovery under negligence per se.
In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), a 16-year-old boy was injured when his shotgun accidentally fired. The boy filed suit against the store that had sold him the gunpowder he used to load the shotgun shells, claiming that the sale violated K.S.A. 21-4209, prohibiting the sale of explosives to minors. The Arredondo court did not address the question of negligence per se. The issue on appeal was whether comparative negligence applies in a personal injury action where liability is based upon violation of a statute. The court examined the history of Kansas statutes concerning possession or sale of firearms, dangerous weapons, and explosives, and found “[t]he primary purpose of K.S.A. 21-4209 is to protect the general public. An incidental consideration is the protection of those classes enumerated — minors, alcoholics, addicts, felons.” 227 Kan. at 849. Based on the purpose of the statute, the court concluded that the entire respon*724sibility for the harm did not fall on the store and the comparative negligence statute applied. 227 Kan. at 849-50.
In Greenlee v. Board of Clay County Comm’rs, 241 Kan. 802, 740 P.2d 606 (1987), the plaintiff sought to recover damages for wrongful termination of employment. One of the plaintiff s theories of recovery was that the defendant intentionally violated the cash-basis and budget laws, resulting in the loss of the plaintiff s job. Without citing any prior authority for support, the Kansas Supreme Court evaluated the plaintiffs claim as follows:
“Generally, the test of whether one injured by the violation of a statute may recover damages from the wrongdoer is whether the legislature intended to give such a right. While, in some cases, statutes expressly impose personal liability on persons or entities for violation of the provisions thereof, or for failure to perform specified duties, the absence of such express provisions does not necessarily negate a legislative intent that the statute shall affect private rights. The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. The generally recognized rule is that a statute which does not purport to establish a civil liability but merely makes provision to secure the safety or welfare of the public as an entity is not subject to construction establishing a civil liability.” 241 Kan. at 804.
By 1991, the requirement for the plaintiff to establish an individual right of action to recover under negligence per se had become entrenched in Kansas case law. In Schlobohm, the plaintiff was injured when she fell in the entranceway of a building. The plaintiff alleged the building contractor was negligent in the construction of the entranceway because it had an elevation differential of more than 1 inch between the threshold and the floor, which violated the city building code. In addressing the plaintiff s negligence per se claim, the Kansas Supreme Court stated:
“Review of our holdings in Arredondo and Greenlee shows that this court has limited the general rule espoused in Noland. Violation of a statute or ordinance alone does not establish negligence per se. In addition, Arredondo and Greenlee require the plaintiff to establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes or ordinances enacted to protect the public at large, therefore, do not create a duty to individuals injured *725as a result of the statutory violation and the doctrine of negligence per se is inapplicable.” Schlobohm, 248 Kan. at 125.
There is currently a split of authority on whether recoveiy under negligence per se depends on the grant of a private right of action by the legislature. 57A Am. Jur. 2d, Negligence § 685. However, Kansas appears to be among the minority of states that require a plaintiff to establish that the legislature intended to create an individual right of action in order to recover under negligence per se. See Westerbeke & McAllister, Survey of Kansas Tort Law; Part I, 49 U. Kan. L. Rev. 1037, 1053 (2001) (“In Kansas, the doctrine of negligence per se appears to differ from the negligence per se doctrine recognized in every other state.”). The two-part test used in Kansas in determining whether a private right of action is created is difficult to apply. First, the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. Quite frankly, it is difficult to discern any rationale for placing such a limitation on recovery under negligence per se. Most statutes, ordinances, and regulations are enacted for the purpose of protecting the general public who might be harmed by the behavior the legislation seeks to prohibit.
The second part of the test used in Kansas in determining whether a private right of action is created is also problematic. Even if a party shows that a statute, ordinance, or regulation was designed to protect a specific group of people rather than to protect the general public, the court must also “review legislative history in order to determine whether a private right of action was intended.” Pullen, 278 Kan. 183, Syl. ¶ 4. But this step is contrary to the basic rule of statutory construction that the court only examines legislative history to determine intent if the statute’s language is unclear or ambiguous. See Double M Constr. v. Kansas Corporation Comn'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Furthermore, many negligence per se claims are based upon violations of municipal ordinances and building codes, which almost always have no legislative history to review.
The requirement for the plaintiff to establish that the legislature intended to create an individual right of action has led to some *726inconsistent and curious results in Kansas case law. In Schlobohm, where the plaintiff was injured when she fell in an entranceway that violated the building code, the Supreme Court acknowledged the general rule that statutes or ordinances enacted to protect the public at large do not give rise to a cause of action for negligence per se. 248 Kan. at 127. Still, the court found that the building code section was enacted to protect a special class of individuals “who enter and exit doorways from injury caused by tripping over an improper elevation differential between the floor and threshold.” 248 Kan. at 127.
In Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949 (1994), the plaintiff, a 6-year-old child, fell into a closed swimming pool at a mobile home park and nearly drowned, sustaining serious injuries. The plaintiff sued under the doctrine of negligence per se, citing violations of city code provisions regarding the upkeep and maintenance of closed swimming pools. The district court allowed the plaintiff s negligence per se claim to go to the jury, and the plaintiff recovered damages.
On appeal, the Kansas Supreme Court stated the general rule that the violation of an ordinance, by itself, does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. 255 Kan. at 281. However, the court held under the facts of the case that “the swimming pool ordinances were enacted to protect a special class of persons — those who gain access to a closed pool and require rescuing, a class which included [the plaintiff].” 255 Kan. at 282.
In Schlobohm and Kerns, the ordinances that were violated appeared to be enacted for the protection of the general public. Nevertheless, the Supreme Court managed to find a special class of persons that the ordinances were intended to protect. In Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991), a 6-year-old girl with Down’s syndrome was molested by her school bus driver. There was evidence that tire school district may have violated K.S.A. 1990 Supp. 38-1522, which required teachers, school administrators, and school employees to report any suspicion of sexual abuse to the *727Department of Social & Rehabilitation Services. The district court instructed the jury, over the school district’s objection, that a violation of the statute constituted negligence.
On appeal, the Kansas Supreme Court acknowledged that “[t]he purpose of the reporting statute is to provide for the protection of children who have been abused by encouraging the reporting of suspected child abuse and by insuring the thorough and prompt investigation of such reports.” 249 Kan. at 372. Nevertheless, the court concluded that the jury instruction on negligence per se was erroneous because there was no individual right of action under the statute. 249 Kan. at 373. Pointing to the fact that the statute had been amended five times, the majority stated: “If the legislature had intended to grant a private right of action in K.S.A. 38-1522 it would have specifically done so.” 249 Kan. at 373. Thus, although the legislature intended to protect a specific group of children by enacting K.S.A. 1990 Supp. 38-1522, the Supreme Court concluded there was no individual right of action under the statute.
Another inconsistent application of the doctrine of negligence per se in Kansas is found in Pullen, where the plaintiff sustained injuries during a Fourth of July fireworks display at the defendants’ home. The plaintiff claimed the defendants violated Kansas statutes, rules, and regulations governing fireworks displays, in part, by failing to follow the rules and regulations of the National Fire Protection Association (NFPA) pamphlet No. 1123. On appeal, the Supreme Court held that the statutorily incorporated safety standards for fireworks displays did not support a cause of action for negligence per se because the regulations were enacted for the protection of the general public. But the court also held the district court committed reversible error by excluding any mention of the NFPA requirements to the jury because the standards were important for the jury in evaluating the appropriate standard of care in the plaintiffs claim for ordinary negligence. This holding blurs any meaningful distinction between negligence per se and ordinary negligence.
Returning to the present case, the evidence viewed in the light most favorable to Shirley established that the Georges sold a 12-*728guage shotgun and ammunition to a known felon, through a straw-person purchase, in violation of 18 U.S.C. § 922(d)(1) (2000). Hours later, the convicted felon used the shotgun to kill his 8-year-old son. This is a classic fact scenario that supports a cause of action under the doctrine of negligence per se. The fact that the federal legislation is intended to protect die general public rather than to protect a specific group of people should not bar a claim under negligence per se. The additional requirement for a party to establish that the legislature intended an individual right of action for injury arising out of a violation of a statute makes it difficult if not impossible to recover under the doctrine of negligence per se in Kansas.
Under the doctrine of negligence per se, the defendant’s violation of a statute enacted to protect public safety creates a presumption that the defendant violated a legal duty to exercise due care. But a finding of negligence per se only subjects the defendant to possible liability; it does not establish liability. The plaintiff must also show the defendant’s statutory violation was a proximate cause of the injury or damages sustained by the plaintiff. 57A Am. Jur. 2d, Negligence § 685; Noland, 207 Kan. at 74-75. Furthermore, the Kansas comparative negligence statute, K.S.A. 60-258a, applies to any claim under negligence per se. Arrendondo, 227 Kan. at 849-50. There is no rational basis for requiring a party to establish that the legislature intended to create an individual right of action to recover under negligence per se. The Kansas Supreme Court should reevaluate this requirement. At the very least, the court should reevaluate the two-part test used in Kansas in determining whether a private right of action is created.