## Facts

- Clayton Kerr lived with his parents, Phillip and Judy Kerr, and was about to turn 21 when the events occurred.
- On January 27, 2007, Clayton consumed large amounts of drugs and alcohol, including cocaine, Xanax, Lortabs mixed with whiskey, and marijuana.
- Clayton went to Roy Marshal Jeffries’s apartment and smoked more marijuana; Clayton later claimed it affected him unusually strongly and believed it may have been laced.
- While still intoxicated, Clayton and Roy went to the Kerrs’ farm, where Clayton shot Roy in the head with a .22-caliber handgun.
- Clayton had taken the gun from his parents’ gun safe. Phillip and Judy kept the safe locked and kept the keys on their persons after learning Clayton had previously accessed it without permission.
- Clayton gained access again only because, without his parents’ knowledge, he secretly made duplicate keys.
- Clayton buried Roy in a shallow grave on the Kerrs’ property.
- On February 4, 2007, Clayton told his parents he had killed Roy and that Roy’s body was buried on their land.
- Roy’s mother, Margaret H. Brown, individually and as administrator/personal representative of Roy’s estate, sued Phillip and Judy Kerr (in addition to Clayton) for negligence arising from the shooting and for interference with the right to possess, and mishandling of, Roy’s body (including reliance on KRS 311.330).
- Evidence showed Clayton hid drugs from his parents (including in a concealed compartment), and the Kerrs testified they were not fully aware of the extent of his drug use; the Kerrs also testified they did not knowingly keep alcohol in the home.
- The Kerrs’ knowledge of prior violence by Clayton was limited to an incident when he was 12 years old; Brown presented evidence of drug use dating back to high school.
- The Hardin Circuit Court granted summary judgment to Phillip and Judy Kerr, ruling Clayton’s theft of the gun and killing of Roy was not foreseeable to the Kerrs; Brown appealed.

## Issues

1. Whether Phillip and Judy Kerr owed Roy a duty of reasonable care to prevent Clayton—an adult son living at home—from stealing a gun from their locked safe and killing Roy, where Clayton’s act depended on drug intoxication and secret duplicate keys.
2. Whether Phillip and Judy Kerr owed Brown a statutory or common-law duty regarding Roy’s remains, including any duty claimed under KRS 311.330, after learning the body was buried on their property.

## Decision

- The Kentucky Court of Appeals affirmed the Hardin Circuit Court’s summary judgment in favor of Phillip and Judy Kerr.
- The court held the Kerrs owed no duty to Roy because Clayton’s criminal act—stealing a gun from a locked safe by using duplicate keys he made in secret and then killing Roy—was not reasonably foreseeable to the parents on the facts known to them.
- The court held KRS 311.330 did not apply to impose liability on the Kerrs for interference with, or mishandling of, Roy’s body, and the record did not support imposing a tort duty on the parents on that theory.

## Legal Principles

- In Kentucky negligence law, whether a defendant owes a duty is a question of law for the court, and duty commonly turns on whether the type of harm was reasonably foreseeable.
- As a general rule, absent a recognized special relationship or other basis for responsibility, a person has no duty to control a third party to prevent that party’s criminal conduct from harming others.
- Evidence of substance abuse, without facts showing the defendant knew or should have known of a concrete risk of violent harm of the sort that occurred, may be insufficient to make an intentional killing reasonably foreseeable as a matter of law.
- When homeowners respond to a known risk of unauthorized access to firearms by keeping the safe locked and maintaining control of the keys, a later theft accomplished through secret duplicate keys may be treated as outside what the homeowners reasonably should have anticipated for duty purposes.
- A statute does not create a private negligence duty against particular defendants unless the statute’s text and purpose cover those defendants and the claimed conduct; KRS 311.330 did not impose the asserted duties on these parents under these facts.
- Summary judgment is proper when the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, including when the plaintiff cannot establish a duty.

## Conclusion

The Kentucky Court of Appeals affirmed summary judgment for Phillip and Judy Kerr because, on what the parents knew and did—keeping the gun safe locked and keys on their persons while their adult son concealed drug use and secretly made duplicate keys—the fatal shooting of Roy was not reasonably foreseeable and therefore no duty to protect Roy arose, and KRS 311.330 did not supply a statutory basis for liability related to the handling or disclosure of Roy’s remains.


Brown v. Kerr, 2010 WL 1404785 (2010)