                                                                             FILED
                                                                        May 01 2019, 5:42 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Robert F. Ahlgrim, Jr.                                     Emily C. Guenin-Hodson
      State Auto Insurance House Counsel                         Mark C. Guenin
      Carmel, Indiana                                            Guenin Law Office, P.C.
                                                                 Wabash, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dunham’s Athleisure Corp.,                                 May 1, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-PL-2892
              v.                                                 Appeal from the Wabash Superior
                                                                 Court
      Keith Shepherd,                                            The Honorable Karen A. Springer,
      Appellee-Plaintiff.                                        Judge Pro Tempore
                                                                 Trial Court Cause No.
                                                                 85D01-1703-PL-156



      Najam, Judge.


                                        Statement of the Case
[1]   Dunham’s Athleisure Corp. (“Dunham’s”) appeals the trial court’s denial of its

      motion for summary judgment on Keith Shepherd’s complaint in which

      Shepherd alleged, among other claims, Dunham’s negligence in the sale of a

      firearm to a third party. Dunham’s presents a single dispositive issue for our

      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019                            Page 1 of 7
      review, namely, whether the trial court erred when it denied Dunham’s

      summary judgment motion.


[2]   We reverse.


                                   Facts and Procedural History
[3]   In the fall of 2016, Shepherd and his girlfriend Christina Bowman went to

      Dunham’s, and Bowman asked Shepherd to buy her a gun. Shepherd refused,

      and the two began to argue. After Bowman walked away, Shepherd turned to

      an employee standing behind the counter where guns were sold and said,

      “[W]hatever you do, don’t ever sell that little girl a gun. [S]he’s dangerous. . . .

      [S]he would shoot me[.]” Appellant’s App. Vol. II at 67.


[4]   On December 15, Bowman went to Dunham’s by herself and bought a

      handgun. 1 On December 23, Bowman used that handgun to shoot Shepherd,

      who survived his injuries. On March 1, 2017, Shepherd filed a complaint

      against Dunham’s alleging negligence, negligent entrustment, and “negligent

      training and supervision” and seeking damages for his injuries. 2 Id. at 41. The

      parties filed cross-motions for summary judgment. Following a hearing, the

      trial court denied the motions. In particular, in denying Dunham’s summary




      1
        Shepherd alleges that Dunham’s violated “its own corporate policies during the sale of the gun to
      Bowman,” as well as “two aspects of ATF Form 4473.” Appellee’s Br. at 5, 9. As we explain below,
      regardless of the bases for the alleged unlawful sale of the gun to Bowman, Dunham’s is entitled to summary
      judgment in its favor on Shepherd’s complaint.
      2
        Shepherd also sued Bowman for “reckless injury,” but that claim is not relevant to this certified
      interlocutory appeal.

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      judgment motion, the trial court found that genuine issues of material fact exist

      as to whether Dunham’s sale to Bowman was unlawful. And the court

      concluded in relevant part that those questions of fact precluded a

      determination on summary judgment that Dunham’s was immune from

      liability under Indiana Code Section 34-12-3-3. This certified interlocutory

      appeal ensued.


                                      Discussion and Decision
[5]   Dunham’s contends that the trial court erred when it denied its summary

      judgment motion. Our standard of review is clear. The Indiana Supreme

      Court has explained that


              [w]e review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).

              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving

      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019                Page 3 of 7
                 party has the burden on appeal of persuading us that the grant of
                 summary judgment was erroneous, we carefully assess the trial
                 court’s decision to ensure that he was not improperly denied his
                 day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
                 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
                 omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

      alterations original to Hughley).


[6]   Indiana Code Section 34-12-3-3 (2018) provides:


                 Except as provided in section 5(1) or 5(2)[ 3] of this chapter, a
                 person may not bring or maintain an action against a firearms or
                 ammunition manufacturer, trade association, or seller for:

                 (1) recovery of damages resulting from, or injunctive relief or
                 abatement of a nuisance relating to, the lawful:

                          (A) design;

                          (B) manufacture;

                          (C) marketing; or

                          (D) sale;

                 of a firearm or ammunition for a firearm; or




      3
          Neither of these sections applies here.


      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019                Page 4 of 7
               (2) recovery of damages resulting from the criminal or unlawful
               misuse of a firearm or ammunition for a firearm by a third party.


[7]   Our Supreme Court recently recognized that this statute “functions as an

      immunity provision” and “forecloses aggrieved plaintiffs from bringing suit” for

      recovery of damages 4 against a firearms seller “even if the firearm has been sold

      unlawfully.” KS&E Sports v. Runnells, 72 N.E.3d 892, 899-900 (Ind. 2017). In

      KS&E, the plaintiff was shot and sued a firearms seller. In particular, the

      plaintiff alleged that the seller had knowingly sold a firearm to the shooter via

      an illegal “straw man” purchase. On appeal, our Supreme Court held in

      relevant part as follows:


               A recurring theme throughout [the plainttif’s] allegations is that if
               [the seller] had followed governing law and applicable gun-sales
               standards, “the Smith & Wesson handgun would not have been
               sold to [the buyer] and [plaintiff] would not have been shot.”

               Given these allegations, KS&E enjoys immunity under
               subsection 3(2). Runnels alleges he sustained injuries when [the
               shooter], who had no legal right to possess the handgun, shot
               Runnels with it during a traffic stop. By any measure, that
               amounts to “criminal or unlawful misuse of a firearm . . . by a
               third party.” I.C. § 34-12-3-3(2). And for the injuries he
               sustained, Runnels seeks only damages on these negligence
               counts.

               Runnels cannot avoid KS&E’s entitlement to immunity by
               arguing he seeks relief only for KS&E’s own misconduct and not



      4
        The statute does not bar “other claims, such as those for equitable relief,” but Shepherd does not bring
      claims other than for damages. KS&E Sports v. Runnells, 72 N.E.3d 892, 901 (Ind. 2017).

      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019                                     Page 5 of 7
              that of third parties Blackburn or Martin. Under Runnels’s
              theory of this case, he incurred no injury until Martin shot him.
              We hold under the governing immunity statute that Runnels’s
              claims “result[ ] from the criminal or unlawful misuse of a
              firearm . . . by a third party,” I.C. § 34-12-3-3(2), and thus are
              barred.


      Id. at 901-02. Further, as then-Justice Rucker pointed out in his separate

      opinion in partial dissent, the holding in KS&E means that a firearms seller’s

      statutory immunity would apply even where the seller knowingly and

      intentionally sells a firearm to a buyer who expresses his intent to give the

      firearm to an admitted felon who, in turn, tells the seller, “I intend to go on a

      shooting spree.” Id. at 908 (Rucker, J., concurring in part, dissenting in part).

      In other words, the Court in KS&E held that plaintiffs may not rely on the harm

      caused by the misuse of an unlawfully sold firearm to sue the seller for the

      unlawful sale.


[8]   Here, each of Shepherd’s claims against Dunham’s arises out of the alleged

      unlawful sale of a firearm to Bowman, who then shot Shepherd. Bowman’s

      conduct amounts to “criminal or unlawful misuse of a firearm . . . by a third

      party.” 5 I.C. § 34-12-3-3(2). Following the holding of KS&E, we conclude that




      5
         To the extent “third party” may have been ambiguous in this statute, our Supreme Court plainly refers to
      Blackburn, the buyer, or first party in the context of the firearm sale, as a third party in the context of
      Runnells’ lawsuit against KS&E and the statute. KS&E, 72 N.E.3d at 901. Thus, here, Bowman, the buyer,
      is a third party under the statute in the context of Shepherd’s lawsuit against Dunham’s, and subsection (2)
      applies to her criminal misuse of the firearm.

      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019                                   Page 6 of 7
      Dunham’s is immune from liability as a matter of law. See id. Thus, the trial

      court erred when it denied Dunham’s summary judgment motion.


[9]   Reversed.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion 18A-PL-2892 | May 1, 2019         Page 7 of 7
