Estate of Heck Ex Rel. Heck v. Stoffer

ATTORNEYS FOR APPELLANT ATTORNEYS FOR
APPELLEE

JOHN C. THEISEN THOMAS W. BELLEPERCHE

MARK C. GARVIN BRIAN ENGLAND
HOLLY A. BRADY Hunt Suedhoff
Kalamaros, LLP
Barnes & Thornburg Fort Wayne, IN
Fort Wayne, IN
DAVID K. HAWK
JEFFERY P. SMITH
Hawk, Haynie,
Kammeyer & Chickedantz

Fort Wayne, IN

STEPHEN J. HARANTS
Miller, Carson,
Boxberger &
Murphy, LLP
Fort Wayne, IN

ATTORNEYS FOR AMICUS
CURIAE

PHILLIP W. HORTON DENNIS A. HENIGAN

STEPHEN K. MARSH DANIEL VICE
MARA V.J. SENN Brady Center to
Prevent Gun Violence
GILLIAN C. WOOD Legal Action Project
Arnold & Porter Washington, D.C.
Washington, D.C.
LUKAS I. COHEN
DAVID E. VANDERCOY Meyer & Wyatt, P.C.
National Rifle Association Gary, IN
Valparaiso, IN

JAMES JOHNSON

JAMES STOLTZ
Defense Trial Counsel of Indiana
Evansville, IN
___________________________________________________________________
___________

IN THE

SUPREME COURT OF INDIANA

ESTATE OF ERYK T. HECK, BY PERSONAL )
REPRESENTATIVE DONALD HECK, ) Supreme Court Cause No.
) 02S03-0202-CV-125
Appellant (Plaintiff Below), )
) Court of Appeals
Cause No.
v. ) 02A03-0007-CV-267
)
RAYMOND E. STOFFER, PATRICIA STOFFER )
and RAY STOFFER & SON CONSTRUCTION, INC. )
)
Appellee (Defendant Below). )

___________________________________________________________________
______

APPEAL FROM THE ALLEN CIRCUIT
COURT
The Honorable Fred A.
Schurger, Special Judge
Cause No. 02C01-
9907-CT-88
___________________________________________________________________
____________

April 7, 2003

SHEPARD, Chief Justice.

With a handgun taken from his parents’ home, fugitive felon Timothy
Stoffer shot and killed Allen County Police Officer Eryk Heck. Officer
Heck’s Estate brought suit against Timothy’s parents, Raymond and Patricia,
and their family business, Stoffer Construction, asserting liability for
negligent storage of the firearm in a way that afforded Timothy access to
it.

The trial court and Court of Appeals both held that the plaintiff’s
complaint did not state a cause of action upon which relief could be
granted, and that the Stoffers were entitled to summary judgment. We
reverse.

Facts & Procedural History

Timothy Stoffer’s short life overflowed with delinquent and criminal
acts, starting in the tenth grade when he dropped out of high school.
During his early adulthood, Timothy bounced between probation and
incarceration and court-ordered counseling for his drug addiction. Over a
nine-year period, he was charged with and/or convicted of three instances
of resisting law enforcement, two instances of battery, burglary, theft,
drug possession, multiple counts of forgery and check deception, escape,
non-support and contempt. On August 15, 1997, he shot and killed Allen
County Officer Heck to avoid apprehension. Timothy also died in the shoot
out.

Timothy had also victimized his own family. Timothy’s parents owned
Stoffer Construction and employed him in the business. Timothy stole and
forged checks from the business. He also stole his grandfather’s ATM card,
spending about $8,000 without permission before he was discovered.
Timothy’s final act was the taking of the handgun, which he later used to
kill Officer Heck.

In the months leading up to the killing, the Stoffers helped Timothy
avoid arrest. The Stoffers allowed Timothy to “hide out” at their lake
cottage to avoid arrest. (R. at 713.) And during Timothy’s stay at the
cottage in February 1997, his father notified Timothy of a tracking device
the police had placed on Timothy’s vehicle. (R. at 540-41.) Since his
release from prison in 1995, Timothy retained the keys to his parents’
home. (R. at 594-96.)

Following the shooting, the personal representative of Officer Heck’s
Estate brought suit, alleging negligence in the storing and monitoring of
the Stoffers’ firearm. The Stoffers and their business (“the Stoffers”)
moved to dismiss the claim, or, in the alternative, for summary judgment.
After several motions and hearings, the trial court granted the Stoffers’
motion to dismiss the Estate’s amended complaint with prejudice, and, in
the alternative, it entered summary judgment.

The Court of Appeals affirmed, finding that the Stoffers had no duty
to safely store their handgun.[1] Estate of Heck v. Stoffer, 752 N.E.2d
192, 199 (Ind. Ct. App. 2001), trans. granted. Judge Patrick Sullivan
dissented, believing the Stoffers had a duty to exercise “reasonable care
under the circumstances.” Id. at 206 (Sullivan, J., dissenting.) He
further wrote:
[The Stoffers’] knowledge of the facts and the further knowledge of
the foreseeability of harm to police officers such as Deputy Heck,
created a duty on the part of [the Stoffers] to exercise reasonable
care under those circumstances. Whether there was a breach of that
duty and if so, whether the breach was a proximate cause of Deputy
Heck’s death is . . . a different issue appropriate for resolution by
a jury.

Id. at 208 (emphasis in original)(footnote omitted). We granted transfer
and now reverse.

Standard of Review

Indiana Trial Rule 12(B)(8) states that “If, on a motion, asserting [a
12(B)(6) motion] to dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56.” The
trial court explicitly considered matters outside the face of the
complaint, so we apply a summary judgment analysis.

Under this familiar standard of review, summary judgment is proper if
the evidence shows there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Ind. Trial Rule
56(C); Ind. Dep't of Env't Mgmt. v. Med. Disposal Servs., Inc., 729 N.E.2d
577 (Ind. 2000). On appeal, we construe all facts and reasonable
inferences drawn from those facts in a light most favorable to the
nonmoving party. Butler v. Peru, 733 N.E.2d 912, (Ind. 2000). We
carefully review the trial court's decision to ensure that the responding
party was not improperly denied his day in court. Id. With these ground
rules in mind, our analysis follows.

A Gun Owner’s Duty of Care

Heck’s Estate argues that the owner or possessor of a loaded handgun
owes a duty to the public to exercise ordinary care in the storage and
safekeeping of the handgun. The trial court ruled that absent negligent
entrustment, when an instrumentality passes from a person’s control,
responsibility for injuries inflicted by it cease. The Court of Appeals
agreed, basing its finding primarily on Article I, § 32 of the Indiana
Constitution establishing a right to bear arms and the absence of a
relevant statutory duty regarding storage of guns in the home. Estate of
Heck, 752 N.E.2d at 200-01.

To recover on a theory of negligence, a plaintiff must establish three
elements: (1) defendant’s duty to conform his conduct to a standard of
care arising from his relationship with the plaintiff, (2) a failure of the
defendant to conform his conduct to that standard of care, and (3) an
injury to the plaintiff proximately caused by the breach. Miller v.
Griesel, 261 Ind. 604, 611, 308 N.E.2d 701, 706 (1974).

Whether the defendant must conform his conduct to a certain standard
for the plaintiff’s benefit is a question of law for the court to decide.
See Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953).
Courts will generally find a duty where reasonable persons would recognize
and agree that it exists. Gariup Const. Co. v. Foster, 519 N.E.2d 1224,
1227 (Ind. 1988). This analysis involves a balancing of three factors:
(1) the relationship between the parties, (2) the reasonable foreseeability
of harm to the person injured, and (3) public policy concerns. Webb v.
Jarvis, 575 N.E.2d 992, 996 (Ind. 1991). We analyze these factors to
determine if the Stoffers had a duty to store their firearm safely.

A. Relationship Between the Parties. The relationship between
Officer Heck and the Stoffers was tenuous at best. Prior to the deaths of
Officer Heck and Timothy, the parties did not know each other. (See R. at
572-73.) Their relationship was formed only because of Timothy’s acts.
The Stoffers were gun owners and parents of a drug-addicted felon fleeing
from police, to whom they gave unrestricted access to their home where they
kept a handgun. Officer Heck was the policeman attempting to apprehend
Timothy. This factor weighs in the Stoffers’ favor.

B. Reasonable Foreseeability of Harm. On the other hand, given the
facts of this case, the foreseeability of the harm weighs in the Estate’s
favor. By his own admission, Ray Stoffer indicated his awareness of
Timothy’s frame of mind. He told police:
[Timothy] had all this pressure, there was nothing left, there was no
other way to go. For him to take a gun, he had [to] know . . . . [H]e
knew the situation with the police, he knew they wanted him and for
him to have a gun on him, he knew what was going to happen, I know he
did. I told [my wife], he had to almost have a death wish . . .

(R. at 754.)

Several additional facts, taken as a whole, lead us to conclude that
the events of this case were foreseeable. Timothy had stolen from his
family several times. On three separate occasions, he was charged with
resisting law enforcement officers. He actively sought to evade police
detection by hiding at his parents’ lake cottage. Ray Stoffer believed
Timothy would flee rather than face his August 14th sentencing hearing.
(R. at 837.) The Stoffers’ knew of Timothy’s lengthy criminal history.
Finally and most important, Timothy retained free and unfettered access to
his parents’ home.

Other actions by the Stoffers’ lend further credence to the
foreseeability of these tragic events. When their grandchildren visited,
the Stoffers hid the handgun in the attic. (R. at 387, 395.) Moreover,
upon Timothy’s release from prison, they took “extra precautions” to secure
their cash, checks and other valuables based upon Timothy’s track record of
stealing from family members. (R. at 605.) The Stoffers exercised due
care to protect their grandchildren and valuables, but failed to safeguard
the gun from “a mentally disturbed, habitual and violent offender [with]
free access to the premises.” Estate of Heck, 752 N.E.2d at 207 (Sullivan,
J., dissenting).

We decline to take a narrow view of Webb’s foreseeability of harm
prong and determine that this factor weighs in favor of the establishment
of a duty.

C. Public Policy Concerns. As to the public policy concerns
implicated in this case, our review of current scholarship reveals that
Timothy’s theft and usage of the gun to kill Officer Heck is depressingly
common. Over a quarter million firearms are stolen each year, and this
arsenal is used in thirty-five percent of the crimes involving guns.
Andrew J. McClurg, Armed and Dangerous: Tort Liability for the Negligent
Storage of Firearms, 32 Conn. L. Rev. 1189, 1227 (2000).

In Indiana alone, over 4,000 people were killed and an additional
8,800 were injured by gun violence over the most recent five years for
which data was available. (Amicus Brady Ctr. to Prevent Gun Violence et
al. Br. at 3.) Preserving human life and reducing criminal acts are the
most important public policy goals.[2]

These statistics take on greater significance when juxtaposed with
the relatively slight burden of reducing the risk of gun theft. Safe
firearm storage, depending on the particular circumstances, can be
accomplished by numerous non-burdensome means. Simply locking the front
door, thereby preventing the public’s access, may be sufficient in some
circumstances. Where the risk of theft is greater, more safety measures
might be required – such as placing the gun in a safe, locking the trigger,
storing the gun and ammunition separately, taking back house keys, or
changing locks. Different factual situations call for different methods of
safeguarding, but most are relatively non-burdensome to gun owners.

Basing its decision on what it called the Indiana Constitution’s
“longstanding and largely unfettered right to bear arms,” the Court of
Appeals found that public policy did not support a duty to store and keep
guns safely. Estate of Heck, 752 N.E.2d at 201.[3] Of course, the Court
of Appeals was focusing on the dearth of legislation about storage of
firearms. There is a good deal of legislation on the topic of firearm
safety - legislation that rests on the constitutional notion that the right
to bear arms is not absolute. See Kellog v. City of Gary, 562 N.E.2d 685,
694 (Ind. 1990).

The legislature’s actions persuade us that public policy supports
recognition of a duty in this case. A significant number of statutes
govern the sale, use and possession of firearms. See, e.g., Ind. Code Ann.
§ 35-47-2.5 (West 2000) (regulating the sale and license of handguns).

Indiana Code § 35-47-2-7 is a particularly relevant statute. It
prohibits the sale or transfer of ownership of a handgun to a minor, felon,
drug abuser, alcohol abuser or mentally incompetent person. See id. The
legislature has deemed the safety risk associated with the possession of
handguns by these individuals as too high. Implicit in this prohibition is
the recognition that a degree of responsibility is associated with handgun
ownership.

The Stoffers argue that recognition of a duty of reasonable and
ordinary care in this case will create a “new and never-before recognized
cause of action.” (Appellee Stoffer Construction Br. at 12.) Not so. The
cause of action is negligence, and the duty of care is well established –
that care which is reasonable under the circumstances. The Restatement
(Second) of Torts § 298 explains:

The care required is always reasonable care. This standard never
varies, but the care which it is reasonable to require of the actor
varies with the danger involved in his act, and is proportionate to
it. The greater the danger, the greater the care which must be
exercised.

Based upon the significant number of gun-related crimes and the ease
of securing a firearm in the home, we find that public policy favors the
safe storage of firearms.

D. Conclusion About Duty. Our review of this case’s facts reveals
that the balance of factors supports our conclusion that the Stoffers had a
duty to exercise reasonable and ordinary care in the storage and
safekeeping of their handgun.

E. Role of Right to Bear Arms. Professor Vandercoy has supplied us
with a thoughtful brief analyzing the propriety of the question of common
law duty we have discussed above. He also asserts that a legal regime
permitting the sort of civil liability sought by Heck “would dampen, if not
stifle, the right of Indiana citizens to keep a firearm in their dwellings
for self-defense purposes.” Amicus N.R.A. Br. at 11.

A constitutional guarantee does not shield parties from negligence
claims tangentially related to the exercise thereof. Several
constitutional provisions guarantee the free exercise of religion, but
nothing precludes a person from suing for slip-and-fall injuries that occur
on a church’s premises. See, e.g., Hanson v. St. Luke’s United Methodist
Church, 682 N.E.2d 1314 (Ind. Ct. App. 1997), aff’d in part and vacated in
part, 704 N.E.2d 1020 (Ind. 1998). In the same vein, the press has the
right to free exchange of thought and opinion, but newspaper distributors
are not shielded from negligence suits for injuries caused by their
delivery drivers. Similarly, Indiana gun owners are guaranteed the right
to bear arms, but this right does not entitle owners to impose on their
fellow citizens all the external human and economic costs associated with
their ownership. Article I, § 32 does not preclude this action from going
forward.

The trial court’s dismissal of the Estate’s complaint was therefore
error.

Summary Judgment Based on Intervening Act

As an alternative to its dismissal of the amended complaint, the trial
court granted the Stoffers’ motion for summary judgment. Although hesitant
to conclude that the Stoffers’ were not negligent, the court concluded that
Timothy’s killing of Officer Heck was an intervening act that eliminated
the casual connection between the Stoffers’ negligence and the death of
Officer Heck.

In Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. 1994), we
discussed intervening acts. We held that “if harm is a natural, probable,
and foreseeable consequence of the first negligent act or omission, the
original wrongdoer may be held liable even though other independent
agencies intervene between his negligence and the ultimate result.” Id. at
520. Reasonably foreseeable intervening acts therefore do not break the
chain of causation and the “original wrongful act will be treated as a
proximate cause.” Id.

In this case, a gun owner’s duty to safely store and keep his/her
firearm protects against the very result the trial court ruled was an
intervening act – that a third party would obtain the firearm and use it in
the commission of a crime. Denying recovery because the very act protected
against occurred would make the duty a nullity.

Guns are dangerous instrumentalities that in the wrong hands have the
potential to cause serious injuries. It is a responsible gun owner’s duty
to exercise reasonable care in the safe storage of a firearm. Amicus
National Rifle Association’s literature bears this point out. The NRA’s
“Safety & Training” website says:
When Using or Storing a Gun, Always Follow These NRA Rules. . . .
Store guns so they are not accessible to unauthorized persons. Many
factors must be considered when deciding where and how to store guns.
A person's particular situation will be a major part of the
consideration. Dozens of gun storage devices, as well as locking
devices that attach directly to the gun, are available.

National Rifle Association, Safety & Training, available at
http://www.nra.org/ (last visited Feb. 14, 2003).

Accepting the acts set forth in the affidavits submitted, we conclude
that summary judgment is improper. It is alleged that the Stoffers’ stored
their handgun between the cushions of a chair in their bedroom. It remains
to be seen whether this constituted reasonable and ordinary care in this
situation. The Stoffers argue that they did not show Timothy where the gun
was hidden, but this is not dispositive. The question is whether leaving a
loaded handgun in a hidden but accessible location was reasonable under
these facts. This determination is a question for the jury. See Beckett
v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind. 1987) (whether
defendant exercised reasonable care is a factual determination for the
jury).

Conclusion

We reverse the dismissal of this action and direct that it be
reinstated.

DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., CONCUR.

-----------------------
[1] The parties have argued at length about the Estate’s unsuccessful
request that the trial court strike certain Stoffer affidavits on grounds
that they were technically deficient and so demonstrably false and
misleading that their submission constituted bad faith under Ind. Trial
Rule 56(G). The Court of Appeals reviewed these materials and said, “[W]e
agree that they are problematic.” Estate of Heck, 752 N.E.2d at 205. Ray
Stoffer, for instance, testified during a friend’s criminal trial that “he
had not seen the weapons . . . since probably two years before [Officer
Heck’s death].” (R. at 584.) He swore in this proceeding, however, that
he “periodically checked the armchair for [his] gun and that he last
noticed its presence on August 10, 1997.” (R. at 70.) His counsel
explained these two declarations by stating that the gun was kept down the
side of an upholstered chair, such that Stoffer might repeatedly check for
its presence by feeling for it without ever “seeing” it. Appellee
Stoffers’ Br. at 24. This is not an impressive reply. Nevertheless, we
think these debates over striking the Stoffer affidavits do not go to the
heart of the legal issues at stake and elect to summarily affirm the Court
of Appeals on the issue of whether the affidavits should have been struck.
Ind. Appellate Rule 58 (A).
[2] These numbers bolster our earlier conclusion regarding the
foreseeability of this harm. Given the facts of this case, a reasonably
foreseeable consequence of storing a firearm in an accessible location is
that the gun might be stolen and used in furtherance of criminal acitivity.
[3] Article I, § 32 of our Constitution reads: “Right to bear arms. The
people shall have a right to bear arms, for the defense of themselves and
the State.”