## Facts

- Russell Graham had prior felony convictions and a history of violence and threats toward Elizabeth Shirley and their child, Zeus Graham.
- Shirley obtained a protection-from-abuse order after Graham assaulted and threatened to kill her in front of the children.
- Graham later threatened to kill Zeus if Shirley did not return to him and attempted to suffocate Zeus while the child slept.
- In September 2003, Graham asked his grandmother, Imogene Glass, to accompany him to buy a shotgun purportedly for the boys’ dove hunting.
- Glass and Graham went to Baxter Springs Gun & Pawn Shop, owned by Joe and Patsy George.
- Graham disclosed he had a felony record; Glass completed the purchase paperwork, passed the background check, and Graham paid for the gun and ammunition and left the store with the firearm.
- That day, Graham shot and killed Zeus and then himself.
- Shirley sued Glass, the pawn shop, and the shop owners, alleging negligence (including negligent entrustment) and reliance on statutes restricting firearms sales to felons; Shirley later dismissed Glass from the case.
- The district court granted summary judgment to the pawn shop and the owners on all claims; the Court of Appeals reversed in part; both sides sought review.

## Issues

1. Whether Kansas recognizes negligent entrustment claims under Restatement (Second) of Torts § 390 against commercial firearms sellers and, if so, whether summary judgment was proper on that theory.
2. Whether firearms statutes and regulations imposed a heightened (“highest degree”) duty of care or established negligence per se, rather than ordinary reasonable care under the circumstances.
3. Whether the risk of harm from the transaction was sufficiently foreseeable to support duty and proximate cause in negligence.

## Decision

- The Kansas Supreme Court affirmed in part and reversed in part.
- The court held that a negligent entrustment claim under Restatement (Second) of Torts § 390 may be asserted against firearms and ammunition sellers.
- The court rejected a “highest degree of care” standard for firearms sellers and applied ordinary reasonable care under the circumstances.
- The court treated firearms statutes and related regulatory policy as relevant to the reasonable-care analysis, but not as automatically creating heightened duty or automatic liability.
- In the summary-judgment posture, the court emphasized that negligence claims may require jury resolution where factual disputes exist as to what a seller knew or should have known and whether harm was foreseeable.

## Legal Principles

- Summary judgment in negligence actions should be used cautiously but is proper when there is no evidence of negligence or when only legal questions remain.
- Negligent entrustment under Restatement (Second) of Torts § 390 requires: (1) entrustment of a chattel, (2) to an incompetent user, (3) with knowledge of the incompetence, and (4) cause-in-fact of injury.
- Commercial sellers, including firearms sellers, may be liable for negligent entrustment when they supply a dangerous chattel to a person the seller knows (or has reason to know) is incompetent to use it safely.
- Foreseeability is part of duty and proximate cause; absent foreseeable risk, there is generally no duty to control a third party’s conduct.
- Foreseeability is assessed by common-sense evaluation of risks a reasonably prudent person would consider under the circumstances.
- Statutory restrictions on firearms sales may inform the scope of reasonable care and may be relevant to breach analysis, but they do not, by themselves, impose a heightened standard of care.

## Conclusion

The Kansas Supreme Court confirmed that firearms sellers may face negligent entrustment liability under Restatement § 390 when they supply a gun in circumstances suggesting it will be controlled by a person known or reasonably knowable to be incompetent or dangerous, while maintaining that the governing duty remains ordinary reasonable care evaluated through foreseeability and the specific facts of the sale.


Shirley ex rel. Graham v. Glass, 297 Kan. 888 (2013)