                                                                            FILED
                                                                        Feb 14 2019, 8:34 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Laurie E. Martin                                           Greg J. Freyberger
Kristofer S. Wilson                                        Wooden McLaughlin LLP
Hoover Hull Turner LLP                                     Evansville, Indiana
Indianapolis, Indiana                                      Elizabeth S. Schmitt
                                                           Wooden McLaughlin LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shelley Nicholson, as the Mother                           February 14, 2019
of Matthew Kendall,                                        Court of Appeals Case No.
Appellant-Plaintiff,                                       18A-CT-1949
                                                           Appeal from the Dubois Circuit
        v.                                                 Court
                                                           The Honorable Nathan A.
Christopher S. Lee,                                        Verkamp, Judge
Appellee-Defendant                                         Trial Court Cause No.
                                                           19C01-1805-CT-306



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019                           Page 1 of 12
[1]   Christopher Lee left a handgun in plain sight in his unlocked, unattended truck,

      which was parked in a public area. A minor, C.O., saw the gun, took it, and

      showed it to his friend, Matthew Kendall, resulting in the discharge of the

      weapon and the death of Kendall. Kendall’s mother, Shelley Nicholson, sued

      Lee for negligence. The trial court granted Lee’s motion for judgment on the

      pleadings, finding as a matter of law that Indiana Code section 34-30-20-1

      immunizes him from liability under these circumstances. Nicholson appeals,

      arguing that the trial court erred by granting the motion for judgment on the

      pleadings. Finding no error, we affirm.


                                                        Facts      1




[2]   On July 22, 2016, Lee parked his truck outside in a public area. He left his

      loaded2 Glock 9mm handgun on the seat of his truck, visible through the

      windows. After parking, Lee left his truck unlocked and unattended.


[3]   C.O., a minor, was walking along the public way, saw Lee’s truck, and saw the

      handgun inside the truck. C.O. took the handgun from the truck and returned

      to his home with it. He then showed the handgun to Kendall. In the process,

      the handgun discharged, shooting and killing Kendall.




      1
       We held oral argument in Indianapolis on January 25, 2019. We thank the attorneys for their skilled
      written and oral presentations.
      2
        Although the complaint does not explicitly state that the gun was loaded, there is no allegation that after
      taking the gun, C.O. later loaded it with bullets he found elsewhere. Therefore, for the purpose of this
      appeal, we infer that Lee’s gun was loaded when he left it in the truck.

      Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019                               Page 2 of 12
[4]   On May 17, 2018, Nicholson filed a complaint against Lee, alleging that Lee’s

      storage of his handgun in open view inside an unlocked and unattended vehicle

      was negligent and a proximate cause of Kendall’s death. In his answer, Lee

      admitted to owning the handgun and to storing it in an unlocked and

      unattended vehicle that was parked outside.


[5]   On July 11, 2018, Lee filed a motion for judgment on the pleadings, arguing

      that regardless of how he stores his handgun, if the handgun is stolen, he is

      statutorily immune from liability for any resulting harm, including Kendall’s

      death. On July 20, 2018, the trial court granted the motion before Nicholson

      had a chance to respond to it. She filed a motion for reconsideration, asking the

      trial court to consider her timely filed brief opposing judgment on the pleadings.

      The trial court denied the motion. Nicholson now appeals.


                                    Discussion and Decision
[6]   Nicholson argues that the trial court erred by granting Lee’s motion for

      judgment on the pleadings. A motion for judgment on the pleadings tests the

      sufficiency of a claim presented in the pleadings and should be granted only

      where it is clear from the face of the complaint that under no circumstances

      could relief be granted. KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017);

      see also Ind. Trial Rule 12(C). We apply a de novo standard of review to a trial

      court’s ruling on a motion for judgment on the pleadings. KS&E Sports, 72

      N.E.3d at 898.




      Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019      Page 3 of 12
[7]   We likewise apply a de novo standard of review to issues of statutory

      interpretation. Id. If a statute is clear and unambiguous, we put aside canons of

      statutory construction and take words and phrases in their plain, ordinary, and

      usual sense. Id. at 898-99. We will find a statute ambiguous and open to

      judicial construction only if it is subject to more than one reasonable

      interpretation. Id. at 899.


[8]   The statute at issue in this case is Indiana Code section 34-30-20-1, which

      provides as follows:


              A person is immune from civil liability based on an act or
              omission related to the use of a firearm or ammunition for a
              firearm by another person if the other person directly or
              indirectly obtained the firearm or ammunition for a firearm
              through the commission of the following:


                       (1)      Burglary (IC 35-43-2-1).

                       (2)      Robbery (IC 35-42-5-1).

                       (3)      Theft (IC 35-43-4-2).

                       (4)      Receiving stolen property (IC 35-43-4-2) (before its
                                amendment on July 1, 2018).

                       (5)      Criminal conversion (IC 35-43-4-3).


      For the purposes of our review, we will accept the following alleged facts as

      true: Lee owned a handgun and left it, loaded, in plain view in a public area in

      his unlocked, unattended truck; C.O. took the handgun from Lee’s vehicle

      without permission to do so, thereby committing one of the above listed

      offenses; C.O. showed the handgun to Kendall; and in the process, the handgun

      Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019            Page 4 of 12
       discharged, shooting and killing Kendall. See KS&E Sports, 72 N.E.3d at 898

       (explaining that when reviewing a motion for judgment on the pleadings, we

       must accept as true the material facts alleged in the complaint).


[9]    Nicholson argues that the trial court erred by finding that Indiana Code section

       34-30-20-1 bars her claim as a matter of law. She explains that she is not

       claiming that Lee is liable based on C.O.’s actions; therefore, the statute—

       which immunizes gun owners from indirect liability for the acts of a third

       party—does not apply.


[10]   Specifically, Nicholson maintains that the basis of her complaint is Lee’s own

       negligence. She directs our attention to the well-accepted duty that gun owners

       have “to exercise reasonable and ordinary care in the storage and safekeeping of

       their handgun.” Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 270 (Ind.

       2003), disapproved of on other grounds by Goodwin v. Yeakle’s Sports Bar & Grill, Inc.,

       62 N.E.3d 384, 390-91 (Ind. 2016). According to Nicholson, Lee’s storage of

       his handgun in an unlocked, unattended vehicle in a public area “failed to

       satisfy the most basic, non-burdensome step available for safe storage.”

       Appellant’s Br. p. 10. Nicholson insists that Lee’s liability is directly based on

       his own acts and omissions, not indirectly based on the acts or omissions of a

       third party.3 Consequently, the statute does not apply. To apply it here,




       3
         She notes that whether C.O.’s actions constituted an intervening act that broke the chain of causation is a
       factual determination that is not before us in this appeal. All we need to decide here is whether a gun owner
       is shielded from liability as a matter of law if he carelessly stores a firearm.

       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019                             Page 5 of 12
       Nicholson argues that we would have to interpret “liability based on an act or

       omission . . . by another” to mean “liability based on an act or omission . . . by

       the gun owner.”4 Id. at 11.


[11]   We find the timing of the General Assembly’s enactment of Indiana Code

       section 34-30-20-1 to be instructive. The enactment of that statute was preceded

       by the Estate of Heck case. In that case, this Court first considered a fact pattern

       similar to the facts at issue here. 752 N.E.2d 192 (Ind. Ct. App. 2001), trans.

       granted, vacated. Timothy Stoffer was the adult son of Raymond and Patricia

       Stoffer. In the decades leading up to 1997, Timothy amassed multiple criminal

       convictions, stole money from his grandfather, and abused alcohol and illegal

       narcotics. In 1996 and 1997, Timothy lived at his parents’ lake house in an

       attempt to avoid law enforcement authorities. In August 1997, Timothy took a

       handgun from his parents’ house—where it was stored between the cushions of

       a chair in their bedroom—and used it to shoot and kill police officer Eryk Heck.

       Officer Heck’s estate filed a wrongful death action against Raymond and

       Patricia. The parties eventually filed cross-summary judgment motions and the

       trial court granted summary judgment in favor of Raymond and Patricia. The

       estate appealed and this Court affirmed, finding as a matter of law that




       4
         She also notes that the original text of the proposed statute, which was revised multiple times before it
       passed, stated that “[a] person is immune from civil liability based on an act or omission related to the storage
       or monitoring of a firearm that is used by a third party in the commission of a crime.” H.B. 1110, 113th
       Leg., 2d Reg. Sess. (2004). This language, Nicholson argues, is more consistent with Lee’s current
       interpretation. That the legislature declined to pass this version shows that Nicholson’s interpretation of the
       statute is correct, according to her.

       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019                               Page 6 of 12
       Raymond and Patricia “did not owe a duty to safely store and keep the gun at

       issue.” Id. at 201.


[12]   Our Supreme Court granted transfer and reversed the trial court’s summary

       judgment order. 786 N.E.2d at 272. In finding that Raymond and Patricia did

       owe a duty to Officer Heck, our Supreme Court relied primarily on the facts

       that Timothy’s parents were aware of their son’s desperate frame of mind and

       history of criminal behavior and that there is a strong public policy concern that

       weighs in favor of recognizing a duty for gun owners to safely store their

       weapons. Id. at 269-70. The Court also declined to find that Timothy’s killing

       of Officer Heck was an intervening act that broke the causal connection

       between the Stoffers’ negligence and the death of the officer:


               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. . . .


               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

       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019        Page 7 of 12
               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.


       Id. at 271.


[13]   The Estate of Heck decision was published in April 2003, with rehearing denied

       in July 2003. The very next legislative session, beginning in January 2004, was

       when our General Assembly considered and enacted Indiana Code section 34-

       30-20-1. The statute’s effective date was March 17, 2004—less than one year

       after Heck. We can only conclude, given this timeline, that the legislature

       enacted this statute in direct response to Estate of Heck.


[14]   When viewed through this lens, it becomes apparent that the General Assembly

       intended to shield gun owners from liability for failing to safely store and keep

       guns, when the gun that was unsafely stored is procured by a crime and then

       later used to commit another crime. And notwithstanding Nicholson’s creative

       argument, the text of the statute likewise supports this conclusion. A gun

       owner is immune from liability “based on an act or omission related to the use of

       a firearm” by another person if the firearm was procured by a crime. I.C. § 34-

       30-20-1 (emphasis added). It cannot seriously be questioned that Lee’s failure

       to safely store his gun is “related to” C.O.’s later use of that same gun. In other

       words, the statute immunizes Lee from liability both for the acts of C.O. and for

       his own failure to properly store the gun.



       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019     Page 8 of 12
[15]   In support of her argument, Nicholson directs our attention to Hinshaw v. Board

       of Commissioners of Jay County. 611 N.E.2d 637, 639 (Ind. 1993). In Hinshaw,

       our Supreme Court considered whether Jay County was immune from liability

       for a car accident. At the time, Indiana Code section 34-4-16.5-3(9) provided

       that “a governmental entity or an employee acting within the scope of the

       employee’s employment is not liable if a loss results from . . . the act or

       omission of someone other than the governmental entity employee[.]” 5 See id.

       at 640 (noting that “[t]he introductory phrase of the statute ‘if a loss results

       from’ does not mean ‘if a loss also results from’”) (emphasis original). The

       county argued that this statute rendered it immune from liability even though

       there were allegations that the county itself was negligent with respect to

       signage and maintenance of the intersection at which the accident occurred.


[16]   Our Supreme Court disagreed. As a general matter, the Court found that a

       governmental entity is immune from liability pursuant to similar statutes only

       when the liability is based on “the act or omission of a third person not within

       the scope of employment as a government employee.” Id. at 641. In Hinshaw,

       however, because the claims were grounded on allegations of the county’s own

       negligence, and because “the [statute’s] circumstances (conduct of ‘someone

       other than the governmental entity employee’) do not encompass or directly

       relate to the acts or omissions upon which the plaintiffs are basing their




       5
           The statute has since been recodified as Indiana Code section 34-13-3-3(9).


       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019             Page 9 of 12
       claim . . . such conduct of third persons does not give rise to the immunity

       provided by [the statute].” Id.


[17]   We find Hinshaw to be inapposite to this case, largely because the statutes at

       issue are so different. Specifically, the language of the statute in Hinshaw is

       clear that immunity attaches only when the claim is based on the negligence of

       another. Therefore, if the basis for the claim was the negligence of the county

       itself, the statute did not apply. Here, in contrast, the statute is broader in scope

       and application, providing that immunity attaches for acts “related to” the use

       of the firearm by another person. Consequently, we do not find Hinshaw to be

       relevant to this case.


[18]   Finally, Nicholson directs our attention to another statute related to the use of

       firearms, arguing that it supports her position in this case. See Hall Drive Ins.,

       Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind. 2002) (noting that where

       statutes address the same subject, we harmonize them when possible). She

       points to Indiana Code section 35-47-2-7(a), which provides that “a person may

       not sell, give, or in any other manner transfer the ownership or possession of a

       handgun or assault weapon to any person under eighteen (18) years of age.”

       Under this statute, the transfer of possession to a minor does not have to be

       done intentionally or knowingly—it is a strict liability statute. Nicholson

       argues that Lee’s interpretation of Indiana Code section 34-30-20-1 is in direct

       opposition to the purpose of section 35-47-2-7 because if his interpretation is

       adopted, gun owners



       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019      Page 10 of 12
               would be immunized for exactly what is prohibited by IC § 35-
               47-2-7—negligently transferring their firearms to minors by
               leaving guns unattended within reach of children. For example,
               under [Lee’s] interpretation, a gun-owner is allowed to leave his
               loaded handgun on a playground in the presence of children and
               have no civil responsibility for any resultant fatalities when a
               curious child takes the firearm and shows it to his friends.


       Appellant’s Br. p. 17. Nicholson insists that this result is not the intent of the

       legislature because it is inconsistent with the strict liability approach of Indiana

       Code section 35-47-2-7.


[19]   We disagree, finding the two statutes easy to harmonize. While transferring a

       firearm to a minor is a strict liability offense, immunity is granted to gun owners

       when the firearm is taken through commission of a crime and without the gun

       owner’s knowledge or consent. We disagree with Nicholson’s claim that

       negligently storing a handgun such that it is easily accessible by children could

       be found to be a “transfer” of the gun subject to strict liability. Similarly, in the

       playground hypothetical posed above, immunity would not attach because in

       taking the abandoned gun, the child would not have committed one of the

       enumerated crimes. Ultimately, we find that the conclusion that immunity is

       granted to gun owners under the circumstances covered by Indiana Code

       section 34-30-20-1 does not contradict the purpose of the prohibition against

       transferring guns to minors.


[20]   In sum, we find that both the plain language of Indiana Code section 34-30-20-1

       as well as the fact that it was clearly enacted in response to our Supreme Court’s


       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019      Page 11 of 12
       decision in Estate of Heck support the trial court’s order granting judgment on the

       pleadings to Lee. As a matter of law, he is immunized from liability in this

       case, whether the focus is on C.O.’s actions or Lee’s own failure to store his gun

       safely and properly.


[21]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-1949 | February 14, 2019   Page 12 of 12
