                                                                              FILED
                                                                          Mar 17 2016, 9:00 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Vincent P. Antaki                                          Roger L. Pardieck
Reminger Co., LPA                                          Karen M. Davis
Indianapolis, Indiana                                      The Pardieck Law Firm
                                                           Seymour, Indiana
Christopher Renzulli
Renzulli Law Firm, LLP                                     Jonathan E. Lowy
White Plains, New York                                     Robert B. Wilcox, Jr.
                                                           Brady Center to Prevent Gun Violence
                                                           Legal Action Project
                                                           Washington, DC
                                                           Michael D. Schissel
                                                           Arnold & Porter, LLP
                                                           New York, New York
                                                           Aarash Haghighat
                                                           Arnold & Porter, LLP
                                                           Washington, DC
                                                           Amici Curiae
                                                           Indiana Trial Lawyers Association
                                                           Nicholas F. Baker
                                                           The Hastings Law Firm
                                                           Indianapolis, Indiana
                                                           Law Enforcement and Municipal
                                                           Organizations
                                                           Shana D. Levinson
                                                           Levinson & Levinson
                                                           Merrillville, Indiana
                                                           Scott M. Abeles
                                                           Stephen R. Chuk
                                                           Proskauer Rose, LLP
                                                           Washington, DC




                                            IN THE
    COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                           Page 1 of 32
      KS&E Sports and Edward J.                                      March 17, 2016
      Ellis,                                                         Court of Appeals Case No.
                                                                     49A02-1501-CT-42
      Appellants-Defendants,
                                                                     Appeal from the Marion Superior
                 v.                                                  Court
                                                                     The Honorable John F. Hanley,
                                                                     Judge
      Dwayne H. Runnels,
                                                                     Cause No. 49D11-1312-CT-44030
      Appellee-Plaintiff.




      Riley, Judge.


                                       STATEMENT OF THE CASE

[1]   Appellants-Defendants, KS&E Sports and Edward J. Ellis (Ellis) 1 (collectively,

      KS&E) appeal the trial court’s denial of their motion for judgment on the

      pleadings against Appellee-Plaintiff, Dwayne H. Runnels (Runnels), in which

      KS&E Sports asserted immunity from suit pursuant to Indiana Code section 34-

      12-3-3(2), arguing that Runnels’ damages resulted from the criminal misuse of a

      firearm by a third party.


[2]   We affirm. 2


                                                          ISSUE




      1
          Ellis is an officer, director, shareholder, and/or owner of KS&E Sports, as well as an employee.
      2
       We held oral argument in this cause on December 15, 2015 at the Indiana Court of Appeals Courtroom in
      Indianapolis, Indiana. We commend and thank counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                                Page 2 of 32
[3]   KS&E Sports raised one issue on interlocutory appeal, which we restate as:

      Whether Runnels’ Complaint stated a claim on which relief can be granted.


                            FACTS AND PROCEDURAL HISTORY

[4]   On December 12, 2011, Runnels, a patrol officer for the Indianapolis

      Metropolitan Police Department, initiated a traffic stop of a vehicle allegedly

      involved in a recent armed robbery and shooting. As Runnels approached the

      vehicle, Demetrious Martin (Martin) exited the driver side of the vehicle with a

      handgun and fired two shots. One bullet missed Runnels but struck his patrol

      car. The second bullet pierced Runnels’ hip and lodged in his upper pelvis.

      Runnels returned fire, killing Martin.


[5]   An ATF trace on the Smith & Wesson handgun used by Martin revealed that it

      was purchased at the KS&E Sports retail store in Indianapolis on October 10,

      2011, two months prior to the shooting. It is alleged that Martin, a convicted

      felon who could not legally purchase a gun, obtained the handgun through an

      unlawful straw sale. Martin and Tarus E. Blackburn (Blackburn) entered the

      KS&E Sports store together and Martin selected the handgun in the presence of

      Blackburn and a KS&E Sports’ employee. Martin and Blackburn then left the

      store only to return later that afternoon. Upon their return, only Blackburn

      entered KS&E Sports and completed the firearms purchase paperwork of the

      handgun previously selected by Martin. Blackburn paid the purchase price of




      Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 3 of 32
      $325 in cash. Once outside the store, Blackburn transferred the handgun to

      Martin for $375. 3


[6]   On December 10, 2013, Runnels filed his Complaint against KS&E Sports,

      Ellis, and Blackburn for “damages resulting from KS&E’s negligent, reckless,

      and unlawful sale of a Smith & Wesson .40 caliber handgun to ‘straw buyer’

      Blackburn and the negligent entrustment of that firearm to Blackburn and

      [Martin], who used the Smith & Wesson Handgun to shoot and harm

      [Runnels].” (Appellant’s App. p. 10). Runnels asserted claims of negligence,

      negligent entrustment, negligence per se, negligent hiring/training/supervision,

      conspiracy, public nuisance, and piercing the corporate veil.


[7]   On June 4, 2014, after answering the Complaint, KS&E filed its motion for

      judgment on the pleadings pursuant to Indiana Trial Rule 12(C) “on the

      grounds that [Ind. Code] § 34-12-3-3(2) requires immediate dismissal of this

      case.” (Appellant’s App. p. 36). Following a hearing, the trial court summarily

      denied KS&E’s motion on October 21, 2014. The trial court subsequently

      granted KS&E’s motion to certify its ruling for interlocutory appeal. This court

      accepted jurisdiction on February 20, 2015.


[8]   Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION



      3
       Blackburn later pled guilty to one Count of making a false and fictitious written statement in connection
      with the acquisition of a firearm, in violation of federal law. He was sentenced to twelve months in prison.

      Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                           Page 4 of 32
[9]   KS&E contends that the trial court erred when it denied its motion for

      judgment on the pleadings pursuant to Ind. Trial Rule 12(C). A motion for

      judgment on the pleadings pursuant to T.R. 12(C) attacks the legal sufficiency

      of the pleadings. Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149

      (Ind. Ct. App. 2001), trans. denied. In reviewing a trial court’s decision on a

      motion for judgment on the pleadings, this court conducts a de novo review. Id.

      The test to be applied when ruling on a T.R.12(C) motion that raises the

      defense of failure to state a claim upon which relief can be granted is whether,

      in the light most favorable to the non-moving party and with every intendment

      regarded in his favor, the complaint is sufficient to constitute any valid claim.

      Id. In applying this test, the court may look only at the pleadings, with all well-

      pleaded material facts alleged in the complaint taken as admitted, supplemented

      by any facts of which the court will take judicial notice. Id. at 1149. “The

      ‘pleadings’ consist of a complaint and an answer, a reply to a counterclaim, an

      answer to a cross-claim, a third-party complaint, and an answer to a third-party

      complaint.” Consol. Ins. Co. v. Nat’l Water Servs. LLC, 994 N.E.2d 1192, 1196

      (Ind. Ct. App. 2013) (quoting Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.

      App. 2012)). “Pleadings also consist of any written instruments attached to a

      pleading.” See T.R. 10(C) (“A copy of any written instrument which is an

      exhibit to a pleading is a part thereof for all purposes.”). As such, a motion for

      judgment on the pleadings theoretically is directed towards a determination of

      the substantive merits of the controversy. Davis, 747 N.E.2d at 1150. We will

      affirm the trial court’s grant of a T.R.12(C) motion for judgment on the

      pleadings when it is clear from the face of the pleadings that one of the parties
      Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 5 of 32
       cannot in any way succeed under the operative facts and allegations made

       therein. Id. at 1149.


[10]   In our de novo review of the trial court’s denial of a motion for judgment on the

       pleadings, then, we must consider whether Runnels’ Complaint is legally

       sufficient to support relief under any circumstances. In his Complaint, Runnels

       advances several claims, sounding in negligence and nuisance, and focuses on

       the harm that KS&E proximately caused through their alleged wrongful and

       unlawful conduct by entrusting a handgun to a straw purchaser.


[11]   In total, Runnels’ Complaint presents KS&E with seven claims for relief.

       Specifically, Runnels asserts that KS&E breached its “duty to exercise

       reasonable care on selling firearms and to refrain from engaging in any activity

       that would create reasonably foreseeable risks of injury to others.” (Appellant’s

       App. p. 21). As such, KS&E knew or reasonably should have known that

       Blackburn was not the intended purchaser of the handgun. In a similar light,

       Runnels brings a claim of negligent entrustment, contending that “KS&E and

       its employee(s) wantonly permitted Blackburn to acquire possession of the

       Smith & Wesson handgun under circumstances in which it knew or should

       have known that Blackburn would use the handgun in a manner that would

       create a substantial and unacceptable risk of physical injury to others.”

       (Appellant’s App. p. 15). As a third Count, Runnels asserts that based on the

       illegal straw sale, KS&E committed negligence per se, followed by a claim of

       negligent hiring, training and supervision because “KS&E placed its

       employee(s) in a position to cause foreseeable harm to the public by wantonly

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016     Page 6 of 32
       failing to implement adequate protocols for training and supervising its

       employee(s) to prevent unlawful straw sales to individuals such as Blackburn[.]”

       (Appellant’s App. p. 28). Runnels also claims to have incurred damages

       resulting from a conspiracy “to unlawfully and unreasonably sell firearms

       without exercising ordinary care in order to make a profit.” (Appellant’s App.

       p. 29). Besides claims based on negligence, Runnels presents a public nuisance

       assertion because “[b]y negligently, recklessly, and/or intentionally selling vast

       quantities of firearms in a manner that ensures a steady flow of firearms in large

       quantities to illegal traffickers, the illegal secondary market, criminals,

       juveniles, and others prohibited by law from having firearms and/or persons

       with criminal purposes, KS&E has negligently and/or knowingly participated

       in creating and maintaining an unreasonable interference with the rights held in

       common by the general public, constituting a public nuisance under Indiana

       law[.]” (Appellant’s App. p. 21). Finally, Runnels attempts to pierce the

       corporate veil because the company was used by its owner to promote illegal

       activities in violation of state and federal law.


                                               I. Negligence Claims


[12]   The elements of a negligence action which have long been recited by courts in

       Indiana and elsewhere are duty, breach, causation, and harm. Estate of Heck v.

       Stoffer, 786 N.E.2d 265, 268 (Ind. 2003). Following Webb v. Jarvis, 575 N.E.2d

       992 (Ind. 1991), the duty issue became viewed in terms of the balance of

       foreseeability, public policy, and the relationship between the parties. Where a

       duty is already recognized, it is to be followed and we need not turn to a

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016       Page 7 of 32
       balancing test of factors to determine whether a duty exists. N. Ind. Pub. Serv. v.

       Sharp, 790 N.E.2d 462, 465 (Ind. 2003). “Here, precedent has established that a

       custodian of firearms owes a duty to act with reasonable care to see that the

       weapons do not fall into the hands of people known to be dangerous.” City of

       Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1241-42 (Ind. 2003).

       In Estate of Heck, our supreme court recognized a duty on the part of an owner

       of a gun to exercise reasonable care to prevent the weapon from falling into

       hands known to be dangerous. Estate of Heck, 786 N.E.2d at 270. As such,

       KS&E had a duty to Runnels to ensure that the Smith & Wesson handgun did

       not fall into the hands of convicted felons.


[13]   However, at the time the handgun was used, it was no longer in the control of

       KS&E. Under standard negligence doctrine, in order for a defendant to be

       liable for a plaintiff’s injury, the defendant’s act or omission must be deemed to

       be a proximate cause of that injury. City of Gary, 801 N.E.2d at 1243.

       Proximate cause in Indiana negligence law has two aspects. The first—

       causation in fact—is a factual inquiry for the jury. If the injury would not have

       occurred without the defendant’s negligent act or omission, there is causation in

       fact. Id. at 1243-44. A second component of proximate cause is the scope of

       liability. That issue, which is also within the province of the trier of fact, turns

       largely on whether the injury “is a natural and probable consequence, which in

       the light of the circumstances, should have been foreseen or anticipated.” Id.

       (citing Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000)). Under this

       doctrine, liability may not be imposed on an original negligent actor who sets

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016     Page 8 of 32
       into motion a chain of events if the ultimate injury was not reasonably

       foreseeable as the natural and probable consequence of the act or omissions.

       Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind. 2002). Under this

       comparative fault theory, the trier of fact can allocate fault to multiple

       contributing factors based on their relative factual causation, relative

       culpability, or some combination of both. Id. at 109.

               A crime involving the use of a gun may be attributable in part to an
               unlawful sale, but it also requires an act on the part of the criminal.
               Among the defendants, the retailers are the closest link in the causal
               chain to the criminal act. But even these dealers may not be the sole
               cause of the injuries from the illegal use of the weapon, and in many
               cases will not bear any share of the fault.
       City of Gary, 801 N.E.2d at 1244.


[14]   Runnels contends that KS&E and its employees were aware that Blackburn was

       an illegal straw purchaser and the ultimate recipient of the handgun was

       Martin, a convicted felon. Therefore, Runnels claims that it was reasonably

       foreseeable that this unlawful and negligent sale would cause injuries and harm

       to him. While there may be issues of proximate cause, or, as some courts put it,

       “remoteness” of damage, we cannot say that Runnels stated an insufficient

       claim. City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1144 (Ohio

       2002). However, whether the claim can be substantiated is an issue left for

       another day. We reach a similar conclusion with respect to Runnels’

       contention of negligent supervision of employees and negligent entrustment.


[15]   With respect to Runnels’ negligence per se allegation, we turn to Rubin v.

       Johnson, 550 N.E.2d 324 (Ind. Ct. App. 1990). In Rubin, we noted that “[t]he
       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016           Page 9 of 32
       unexcused or unjustified violation of a duty proscribed by statute constitutes

       negligence per se if the statute is intended to protect the class of persons in

       which the plaintiff is included and to protect against the risk of the type of harm

       which has occurred as a result of its violation.” Id. at 329. Also, where a

       statute is enacted to ensure the safety of others, its violation constitutes

       negligence per se. Id.


[16]   The Indiana statutes regulating the transfer and possession of handguns were

       enacted by the legislature to protect the public from those who would use such

       weapons in a dangerous or irresponsible manner. See I.C. §§ 35-47-2-7; 35-47-

       2.5-16; Matthews v. State, 148 N.E.2d 334, 338 (Ind. 1957). The legislature’s

       enactment of these statutory provisions reflects a strong public policy against

       entrusting certain individuals with handguns. Rubin, 550 N.E.2d at 329. The

       purpose of this policy is to safeguard the general public from the incompetent,

       irresponsible or criminal use of such weapons. Id. at 330. Clearly, as a member

       of the general public, Runnels was among the persons intended to be protected

       by these statutes. While Runnels will incur similar problems to establish

       proximate cause and remoteness of damages as with his negligence claims, we

       do find his Complaint sufficient with respect to his negligence per se contention

       to survive KS&E’s motion for judgment on the pleadings.


                                                    II. Nuisance


[17]   The Indiana Statute section 32-30-6-6 defines nuisance as “[w]hatever is (1)

       injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016    Page 10 of 32
       to the free use of property; so as to essentially interfere with the comfortable

       enjoyment of life or property, is a nuisance, and the subject of an action.” The

       essence of a nuisance claim is the foreseeable harm unreasonably created by the

       defendants’ conduct. City of Gary, 801 N.E.2d at 1235. In this light, our

       supreme court has interpreted the statute as:

               A nuisance is an activity that generates injury or inconvenience to
               others that is both sufficiently grave and sufficiently foreseeable that it
               renders it unreasonable to proceed at least without compensation to
               those that are harmed. Whether it is unreasonable turns on whether
               the activity, even if lawful, can be expected to impose such costs or
               inconvenience on others that those costs should be borne by the
               generator of the activity, or the activity must be stopped or modified.
       Id. at 1231 (citing W. Page Keeton, Prosser and Keaton on The Law of Torts § 88 at

       629-30 (5th ed. 1984)). “There is no requirement that the activity involve an

       unlawful activity or use of land.” Id. at 1233. Thus, if an activity meets the

       requirements of an unreasonable interference with a public right, it may

       constitute a public nuisance. Id. Also, a public nuisance may exist without an

       underlying independent tort. Id. at 1234.


[18]   Runnels asserts that by negligently selling firearms “in a manner that ensures a

       steady flow of firearms in large quantities to illegal traffickers,” and “others

       prohibited by law from having firearms,” KS&E created an unreasonable

       interference with the public’s health and use in public facilities, resulting in

       substantial and ongoing human and financial harm. (Appellant’s App. p. 21).

       These allegations state a claim and survive KS&E’s motion.


                                         III. Piercing the Corporate Veil

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016           Page 11 of 32
[19]   In general, the doctrine of “piercing the corporate veil” holds individuals liable

       for corporate actions based on the failure to observe corporate formalities.

       Fairfield Development, Inc., v. Georgetown Woods Sr. Apartments Ltd. Partnership,

       768 N.E.2d 463, 468 (Ind. Ct. App. 2002), trans. denied. As a general rule,

       Indiana courts are reluctant to disregard corporate identity and do so only to

       protect third parties from fraud or injustice when transacting business with a

       corporate entity. Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494,

       504 (Ind. Ct. App. 2007). A party seeking to pierce the corporate veil bears the

       burden of establishing that the corporation was so ignored, controlled, or

       manipulated that it was merely the instrumentality of another and that the

       misuse of the corporate form would constitute a fraud or promote injustice. Id.


[20]   In deciding whether the party seeking to pierce the corporate veil has met its

       burden, Indiana courts consider whether the party has presented evidence

       showing: (1) undercapitalization; (2) absence of corporate records; (3)

       fraudulent representation by corporation shareholders or directors; (4) use of

       the corporation to promote fraud; (5) payment by the corporation of individual

       obligations; (6) commingling of assets and affairs; (7) failure to observe required

       corporate formalities; or (8) other shareholder acts or conduct ignoring,

       controlling, or manipulating the corporate form. Aronson v. Price, 644 N.E.2d

       864, 867 (Ind. 1994). This list of factors is not necessarily exhaustive, and all

       factors need not be shown to support a decision to pierce the corporate veil.

       D.S.I. v. Natare Corp., 742 N.E.2d 15, 27 (Ind. Ct. App. 2000), reh’g denied, trans.

       denied.


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 12 of 32
[21]   Runnels’ Complaint advances that Ellis, as owner of KS&E Sports, used the

       store as its alter ego to promote the illegal activities and participate in the sale of

       the Smith & Wesson handgun in violation of state and federal laws, causing

       physical injury and associated harm to Runnels. Although the allegations in

       the Complaint in support of piercing the corporate veil are weak as “the

       corporate veil is pierced only where it is clear that the corporation is merely a

       shell for conducting the defendant’s own business and where the misuse of the

       corporate form constitutes a fraud or promotes injustice,” we are mindful that

       the determination of whether there are sufficient grounds for piercing the

       corporate veil is “a complex economic question” and should not be disposed of

       lightly. Aronson, at 867. As such, we conclude that Runnels’ Complaint with

       respect to piercing the corporate veil is sufficient to survive KS&E’s motion for

       judgment on the pleadings.


                                     IV. Indiana Code section 34-12-3-3(2)


[22]   Despite the sufficiency of the allegations in Runnels’ Complaint, KS&E

       contends that the trial court should dismiss these claims because Indiana Code

       section 34-12-3-3 provides the company with immunity from civil liability. The

       statute relied upon by KS&E to support its argument provides that:

               Sec. 3. Except as provided in section 5(1) or 5(2) 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;

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016         Page 13 of 32
                    (B) manufacture;
                    (C) marketing; or
                    (D) sale;
                    of a firearm or ammunition for a firearm; or
               (2) recovery of damages resulting from the criminal or unlawful
                   misuse of a firearm or ammunition for a firearm by a third party.
       Focusing on subsection (2), KS&E posits an expansive interpretation of the

       enactment, claiming that “the plain language of the statute evidences an intent

       by the General Assembly to remove liability for actions over which firearm

       sellers have no control (i.e., the criminal acts of third parties). When read in the

       context of the entire statute, I.C. § 34-12-3-3(2) provides a separate layer of

       protection to firearm sellers in the event that a third party’s criminal or unlawful

       actions caused the harm at issue.” (Appellant’s Br. p. 5). Accordingly, KS&E

       maintains that because Martin, a third party, caused Runnels’ injuries, the

       retailer is immune from suit. In other words, regardless of the perceived illegal

       strawman sale, KS&E cannot be held liable because the injuries were inflicted

       by the intervening criminal acts of a third party.


[23]   The rules of statutory construction require courts to give the words of a statute

       their plain and ordinary meaning unless the statute otherwise provides

       definitions, or unless the construction is plainly repugnant to the intent of the

       legislature. Ind. Bureau of Motor Vehicles v. Orange, 889 N.E.2d 388, 390 (Ind. Ct.

       App. 2008). However, if a statute is susceptible to more than one

       interpretation, it is ambiguous. Id. If a statute is ambiguous, then courts must

       give effect, and implement the intent of the legislature. Id.


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016         Page 14 of 32
[24]   Reviewing the plain language of the statutory enactment, it is clear that the

       statute provides two distinct layers of protection for firearm sellers. Section 1

       bars victims of gun violence from pursuing claims against firearms sellers who

       are alleged to have done nothing wrong beyond lawfully selling a firearm,

       whereas section 2 provides that even where a firearm seller has acted

       unlawfully, the section limits the seller’s exposure to liability by barring

       plaintiffs from holding him accountable for the portion of damages that results

       from the criminal or unlawful misuse of a firearm by a third party.


[25]   Runnels’ Complaint expressly alleges liability based on the harm that KS&E

       proximately caused Runnels through their own wrongful and unreasonable

       misuse of a firearm; the Complaint does not couch its allegations in terms of

       unlawful conduct by Martin. Accordingly, considering the unambiguous

       language in light of our limited scope of review under a T.R. 12(C) motion, we

       cannot conclude that under the operative facts and allegations made in the

       Complaint, Runnels cannot in any way succeed. See Davis, 747 N.E.2d at

       1149. Therefore, we conclude that within the boundaries of this review, the

       Complaint is sufficient in setting forth valid claims and, at this point in time,

       I.C. § 34-12-3-3 does not bar further proceedings before the trial court. 4


                                                 CONCLUSION




       4
         To be sure, we reiterate that based on the scope of our review, we do not decide whether I.C. § 34-12-3-3
       should be characterized as an immunity statute, as proposed by KS&E. A decision on that issue is better left
       for another day and should be made outside the province of an initial T.R. 12(C) analysis.

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                        Page 15 of 32
[26]   Based on the foregoing, we hold that Runnels’ Complaint stated a claim on

       which relief can be granted.


[27]   Affirmed.


[28]   Brown, J. concurs with separate concurring opinion


[29]   Altice, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 16 of 32
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       KS&E Sports and Edward J.                                 Court of Appeals Case No.
                                                                 49A02-1501-CT-42
       Ellis,
       Appellants-Defendants,

               v.

       Dwayne H Runnels,
       Appellee-Plaintiff.




       Brown, Judge, concurring.

[30]   I concur with the reasoning and the result reached by the majority, but I write

       separately to clarify my view of the issue. Initially, it is important to consider

       that to the extent Ind. Code § 34-12-3-3 operates in derogation of the common

       law, this court must strictly construe it. See JPMorgan Chase Bank, N.A. v.

       Claybridge Homeowners Ass’n, Inc., 39 N.E.3d 666, 671 (Ind. 2015). When the

       legislature enacts a statute in derogation of common law, we presume that the

       legislature is aware of the common law and does not intend to make any

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016               Page 17 of 32
       change beyond what is declared in express terms or by unmistakable

       implication. Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App.

       2014). Also, in construing a statute, “[i]t is just as important to recognize what

       the statute does not say as it is to recognize what it does say.” Goodrich Quality

       Theaters, Inc. v. Fostcorp Heating and Cooling, Inc., 39 N.E.3d 660, 665 (Ind. 2015)

       (quoting N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002)).


[31]   As the majority notes, Ind. Code § 34-12-3-3 provides two categories under

       which a person may not bring or maintain an action against a firearms seller.

       Subsection 1 precludes actions seeking to recover damages, injunctive relief, or

       the abatement of a nuisance regarding lawful activity related to designing,

       manufacturing, marketing, or selling firearms or ammunition. Subsection 2

       bars actions seeking to recover damages which were the result of the criminal or

       unlawful misuse of a firearm or ammunition by a third party. Importantly,

       however, Section 3 does not bar bringing an action seeking damages relating to

       unlawful activity on the part of the firearms seller. The implication of the

       absence of such language is obvious: the legislature did not intend to bar actions

       against firearms sellers relating to their own unlawful activity.


[32]   That the legislature did not intend to provide firearms sellers the extent of

       immunity argued by KS&E is demonstrated by comparing the legislature’s

       actions following two 2003 decisions of the Indiana Supreme Court. First, the

       Court handed down City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d

       1222 (Ind. 2003). In that case, the City of Gary brought a comprehensive

       lawsuit “against a number of participants at various stages in the manufacture

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 18 of 32
       and distribution of handguns,” alleging “claims for public nuisance and

       negligence against manufacturers, wholesalers, and distributors of these

       products.” City of Gary, 801 N.E.2d at 1227. The City “sued for injunctive

       relief and money damages for the harm it alleges is caused by the unlawful

       marketing and distribution of handguns.” Id. Its complaint alleged claims of

       public nuisance, negligence in distribution of guns, and negligent design. Id. at

       1228. The Court held that most of the allegations in the City’s complaint stated

       a claim and reversed the trial court’s dismissal of such claims. Id. at 1228-1229.


[33]   That same year, the Court issued its decision in Estate of Heck v. Stoffer, 786

       N.E.2d 265 (Ind. 2003), reh’g denied. In Heck, the Court examined whether a

       plaintiff could bring a negligence action against a gun owner related to the

       storage of a firearm. Heck, 786 N.E.2d at 266. The facts underlying Heck

       involved Timothy Stoffer, who was the son of the defendants and was a fugitive

       felon, shooting and killing Allen County Police Officer Eryk Heck using his

       parents’ firearm, which he took without their permission. Id. at 266-267.

       Heck’s Estate brought the negligence action, and the Stoffers moved to dismiss

       the claim and alternatively for summary judgment, and the trial court granted

       their motion both as a dismissal and an entry of summary judgment. Id. at 267.

       On transfer, the Court reversed the trial court on both grounds. Id. at 271-272.

       Specifically, the Court reasoned that “the Stoffers had a duty to exercise

       reasonable and ordinary care in the storage and safekeeping of their handgun”

       and that accordingly the action should be reinstated. Id. at 270.




       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 19 of 32
[34]   In the legislature’s 2004 session, it passed Pub. L. No. 80-2004 which amended

       Ind. Code § 34-12-3-3, changing the text in the preamble of the statute from

       “[e]xcept as provided in section 5” to read “[e]xcept as provided in section 5(1)

       or 5(2) . . . .” 5 Pub. L. No. 80-2004, § 3 (eff. March 17, 2004). That same

       session law also contained Section 5, which codified Ind. Code § 34-30-20-1,

       titled “Immunity for Misuse of a Firearm or Ammunition by a Person Other

       Than the Owner,” and which provided:

               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).
                        (5) Criminal conversion (IC 35-43-4-3).
       Pub. L. No. 80-2004, § 5 (eff. March 17, 2004) (emphasis added).


[35]   The legislature demonstrated in Pub. L. No. 80-2004 that it knew how to write

       a statute expressly derogating the common law and granting immunity from

       civil liability, and it chose not to do so regarding the unlawful sale of firearms

       for firearms sellers in Ind. Code § 34-12-3-3. I am persuaded by an argument

       made by Runnels’s counsel at oral argument regarding how to interpret the



       5
        Ind. Code § 34-12-3-3 was originally added to the Indiana Code by Pub. L. No. 19-2001, § 1 (eff. April 18,
       2001). As discussed below and in the dissent, the effective date of Section 3 was amended by Pub. L. No.
       106-2015, § 4 to August 26, 1999.

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                        Page 20 of 32
legislature’s actions regarding Section 3 as follows: “What the legislature was

trying to do was they were codifying existing Indiana comparative fault law and

freezing the common law relating to gun companies to prevent this expansion

to novel theories that would impose . . . liability such as absolute liability.”

Oral Arg. at 26:58-27:22, available at

https://mycourts.in.gov/arguments/default.aspx?&id=1874&view=detail&yr=

&when=&page=1&court=&search=&direction=%20ASC&future=True&sort=

&judge=108&county=&admin=False&pageSize=20. If the legislature wished

to abrogate over 100 years of Indiana common law regarding the potential to

impose liability on gun sellers for their own unlawful actions, it would have

expressly done so. See Binford v. Johnston, 82 Ind. 426, 427-428, 431 (Ind. 1882)

(holding that a firearm seller could be held civilly liable for negligently selling

pistol cartridges loaded with powder and ball to two minors, in which one of

the minors was shot and killed by a ball, because “we can not deny a recovery if

we find that the injury was the natural or probable result of appellant’s original

wrong”); see also City of Gary, 801 N.E.2d at 1227 (holding that the City of

Gary’s claims for public nuisance and negligence against manufacturers,

wholesalers, and distributors of handguns were valid claims under Indiana law);

Rubin v. Johnson, 550 N.E.2d 324, 326, 331-333 (Ind. Ct. App. 1990) (denying

the defendant gun seller’s motion for summary judgment on the plaintiff’s

wrongful death action, in which the plaintiff alleged that defendant Rubin

knowingly transferred a firearm to a person who Rubin knew or reasonably

should have known was of unsound mind, holding that Rubin’s argument that

the shooter’s act constituted an intervening criminal act which should relieve
Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016    Page 21 of 32
       him of any liability is erroneous and that “because the criminal, irresponsible,

       and unpredictable use of handguns is the very risk sought to be avoided under

       I.C. 35-47-2-7 [which prohibits sales or transfers of firearms to certain

       individuals], the realization of this risk cannot stand as a bar to recovery”).


[36]   The claims alleged by Runnels in his complaint allege damages resulting from

       KS&E’s own actions. Counts I-V each sound in negligence, in which Runnels

       alleges that KS&E’s sale to Blackburn was a proximate cause of Runnels’s

       injuries. Count VI, alleging a claim of damages resulting from a conspiracy,

       also directly concerns the actions of KS&E in causing Runnels’s injuries.

       Count VII, public nuisance, is specifically concerned with the nuisance created

       by KS&E itself as a result of the store’s unlawful activities. Finally, Count VIII

       seeks to pierce the corporate veil and sue Edward Ellis individually for his role

       in committing unlawful acts. I believe that none of these counts are barred by

       Ind. Code § 34-12-3-3.


[37]   I also believe it improper to consider the legislature’s amendment to Ind. Code

       § 34-12-3-3 to change its effective date, seemingly so as to apply that statute to

       the issues being litigated in City of Gary, as reason to conclude that the

       legislature intended Ind. Code § 34-12-3-3 to immunize gun sellers from liability

       stemming from the unlawful sale of firearms. As noted, the nature of that case

       is far different from the facts presented by Runnels. Indeed, much of the

       Court’s analysis pertained to the City’s claim “that handgun manufacturers,

       distributors, and dealers conduct their business in a manner that unreasonably

       interferes with public rights in the City of Gary, and therefore have created a

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016      Page 22 of 32
       public nuisance,” in which it was seeking in part injunctive relief to abate or

       enjoin the nuisance. 801 N.E.2d at 1229, 1238. The Court noted that “a public

       nuisance may exist without an underlying independent tort,” that “[h]ere the

       complaint does allege negligence and resulting predicable injury,” but that “a

       nuisance claim may be predicated on a lawful activity conducted in such a

       manner that it imposes costs on others.” Id. at 1234. The Court observed that

       “[n]uisances may arise from a lawful activity” and pointed to Yeager & Sullivan,

       Inc. v. O’Neill, 163 Ind. App. 466, 324 N.E.2d 846 (1975), in which this court

       “held that ‘[w]hile the keeping of hogs, being a lawful enterprise, cannot be

       characterized as an absolute nuisance or a nuisance, per se, such an activity can

       become a nuisance per accidents by reason of the manner in which the hogs are

       kept, the locality or both.’” Id. at 1234 n.9 (quoting Yeager, 163 Ind. App. at

       474, 324 N.E.2d at 852). The Court specifically stated in examining a defense

       raised by the firearms manufacturers and distributors that “an activity can be

       lawful and still be conducted in an unreasonable manner so as to constitute a

       nuisance.” Id. at 1234. In addition, the negligence claim alleged that the

       defendants in that action had “acted negligently in the distribution, marketing,

       and sale of handguns.” Id. at 1241 (emphasis added). Such a claim

       encompasses a far wider range of activity than the specific negligence claim

       alleged by Runnels.


[38]   Thus, it is unclear which, if any, of the City of Gary’s allegations would be

       impacted by the language of Ind. Code § 34-12-3-3, and it is not before this

       Court to decide the statute’s impact in that case. The action brought by


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 23 of 32
       Runnels contains specific allegations of a straw sale which caused his personal

       injuries. Indeed, the Court in City of Gary observed that “[i]n this procedural

       posture the City cites no specific transaction in which its damages are traceable

       to use of a gun obtained in an unlawful sale.” Id. at 1244. I do not believe the

       fact that the legislature may have acted to apply Ind. Code § 34-12-3-3 to some

       yet-to-be-discerned aspect of the City of Gary litigation necessarily leads to the

       conclusion that the statute is intended to provide complete immunity to gun

       sellers for unlawful sales of firearms.


[39]   For the reasons stated, I concur with the majority opinion.




       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 24 of 32
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       KS&E Sports and Edward J.                                  Court of Appeals Case No.
                                                                  49A02-1501-CT-42
       Ellis,
       Appellants-Defendants,

               v.

       Dwayne H. Runnels,
       Appellee-Plaintiff.




       Altice, Judge, dissenting.

[40]   I respectfully dissent. The issue before us, one of first impression, is whether

       Ind. Code § 34-12-3-3(2) immunizes firearms sellers, like KS&E, against civil

       actions for damages where the plaintiff was injured by the criminal misuse of a

       firearm by a third party regardless of whether the firearm was sold lawfully by

       the firearms seller. This is purely an issue of statutory interpretation.


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                Page 25 of 32
[41]   I.C. § 34-12-3-3 provides:

                  Except as provided in section 5(1) or 5(2) of this chapter,[6] 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
                  (2) recovery of damages resulting from the criminal or unlawful
                  misuse of a firearm or ammunition for a firearm by a third party.
       In conjunction with this statute, I.C. § 34-12-3-4(a) provides for dismissal and

       the award of attorney’s fees and costs to the defendant if a plaintiff brings an

       action under a theory of recovery described above.


[42]   KS&E’s argument is straightforward: Runnels’s claims fit squarely within the

       plain language of I.C. § 34-12-3-3(2) prohibiting actions against firearms sellers




       6
           I.C. § 34-12-3-5 provides the following exceptions, which are not applicable in this case:


                  Nothing in this chapter may be construed to prohibit a person from bringing or maintaining
                  an action against a firearms or ammunition manufacturer, trade association, or seller for
                  recovery of damages for the following:
                           (1) Breach of contract or warranty concerning firearms or ammunition purchased
                           by a person.
                           (2) Damage or harm to a person or to property owned or leased by a person caused by a
                           defective firearm or ammunition

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                             Page 26 of 32
       for “recovery of damages resulting from the criminal…misuse of a firearm…by

       a third party.” Pursuant to this provision, KS&E contends that a firearms seller

       is immune from liability if a third party’s criminal use of the firearm damaged

       the plaintiff. This is true regardless of whether the firearm was sold lawfully or

       unlawfully.


[43]   I agree with the majority, as would KS&E, that I.C. § 34-12-3-3(1) acts, in part,

       to bar victims of gun violence from pursuing claims against firearms sellers

       engaged in lawful sales. This subsection is not applicable here because KS&E is

       alleged to have engaged in an illegal straw sale.


[44]   Subsection (2) of the statute, the one applicable in this case, makes no reference

       to the lawfulness of the sale. Its focus, rather, is on instances where a firearm is

       criminally or unlawfully misused by a third party. The majority interprets this

       subsection as simply “limit[ing] the seller’s exposure to liability by barring

       plaintiffs from holding him accountable for the portion of damages that results

       from the criminal or unlawful misuse of a firearm by a third party.” Slip op. at

       15. I believe this is a strained interpretation of the statute and certainly not

       representative of the statute’s plain language.


[45]   In relevant part, the statute provides that a person may not bring an action

       against a firearms seller for recovery of damages resulting from the criminal

       misuse of a firearm by a third party. If a plaintiff brings such an action, the

       defendant is entitled to dismissal and an award of attorney fees and costs

       pursuant to I.C. § 34-12-3-4(a). This is a quintessential immunity provision.


       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016    Page 27 of 32
[46]   The majority, however, relegates it to a recodification of comparative fault

       principles. That is, according to the majority, subsection (2) makes a gun seller

       liable for only a portion of the plaintiff’s damages – the part attributable to the

       seller’s fault. But that was the law as it existed prior to enactment of the statute.

       See City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003).


[47]   The City of Gary case involved a complaint filed by the City asserting, inter alia,

       negligence claims against various firearms dealers, distributors, and

       manufacturers. The trial court dismissed the City’s claims for failure to state a

       claim. The Supreme Court reversed.


[48]   Relevant here, the City’s complaint generally alleged that the firearms dealers

       had knowingly sold to illegal buyers through intermediaries in straw purchases.

       With respect to the negligence claims, the Court addressed the defendants’

       argument that at the time a gun is used in a crime it is no longer under their

       control. The Court indicated that this is an issue of proximate cause and

       comparative fault.


               [L]iability may not be imposed on an original negligent actor
               who sets into motion a chain of events if the ultimate injury was
               not reasonably foreseeable as the natural and probable
               consequence of the act or omission. Under comparative fault,
               the trier of fact can allocate fault to multiple contributing factors
               based on their relative factual causation, relative culpability, or
               some combination of both.




       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016     Page 28 of 32
[49]   Id. at 1244 (citations omitted). The Court discussed the difficulty of

       establishing proximate cause in these types of cases. 7 Despite recognizing that

       substantial barriers to recovery of any or all of these damages may exist, the

       Court held that it could not say as a matter of law that no damages were

       recoverable. Id. at 1244. The Court concluded: “Here we have bald

       allegations of liability and a claim of resulting damages. That is sufficient to

       state a claim. Whether the claim can be substantiated is an issue for another

       day.” Id. at 1245.


[50]   I.C. § 34-12-3-3 had not been enacted when the City filed its complaint in

       1999. 8 In 2015, the legislature retroactively amended I.C. § 34-12-3-3 (and the

       other sections within the chapter), changing its effective date to August 26, 1999

       and adding the phrase “or maintain” to the statute to bar people from bringing

       or maintaining certain actions against firearms sellers. The legislature also

       amended I.C. § 34-12-3-4—the statute awarding fees and costs for such actions.

       Specifically, another subsection was added applying to actions commenced on

       or before August 27, 1999 that are subsequently dismissed pursuant to I.C. § 34-

       12-3-3. In those cases, the amended statute provides that “no award for




       7
         Even in the case of unlawful sales, “dealers may not be the sole cause of the injuries from the illegal use of
       the weapon, and in many cases will not bear any share of the fault.” Id. This may be due to the passage of
       time or a wide variety of intervening circumstances. “In some cases the fault allocated to the user may
       overwhelm or even eliminate fault of the seller.” Id.
       8
         The precise date the City filed its case is not clear. The Supreme Court generally referenced the case being
       filed in “September 1999”, but the date was not important to the disposition of that case. See City of Gary, 801
       N.E.2d at 1227. KS&E asserts, without citation, that the complaint was “filed on August 30, 1999 – and was
       signed and dated on August 27, 1999”. Appellants’ Brief at 6.

       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                             Page 29 of 32
       attorney’s fees or costs incurred shall issue”. I.C. § 34-12-3-4. Finally, the

       legislature amended I.C. § 34-12-3-0.1 to indicate that the chapter also applies

       to actions filed on or before the original effective date of the statute (April 18,

       2001), not just after that date (as it existed prior to the amendment).


[51]   The clear purpose of these amendments was to effect a dismissal of the City’s

       case, which lingered unresolved in the trial court after yet another unsuccessful

       appeal by the gun industry, Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422

       (Ind. Ct. App. 2007), trans. denied (2009). I agree with KS&E’s argument that

       the 2015 amendment and its connection to the City of Gary case, which included

       claims of unlawful straw sales, “suggests that the General Assembly was keenly

       aware of the import of the language used in 34-12-3-3 and thus further

       strengthens the argument that the General Assembly intended what the

       language in section 34-12-3-3 clearly states.” Appellants’ Brief at 13. Further, if

       I.C. § 34-12-3-3(2) was intended to be interpreted as a comparative fault

       provision, there would have been no reason for the legislature to amend the

       statute to make it retroactively applicable to the City of Gary case.


[52]   Moreover, I am uncertain how the statute would work under the majority’s

       interpretation. The statute clearly prohibits a plaintiff from bringing certain

       actions – in this case bringing actions against firearms sellers for “recovery of

       damages resulting from the criminal…misuse of a firearm…by a third party.”

       I.C. § 34-12-3-3(2). So what actions would be barred under the majority’s

       interpretation of the statute?



       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016    Page 30 of 32
[53]   In my mind, actions are not defined by comparative fault principles. Rather,

       they are based on a defendant’s alleged liability for a plaintiff’s

       injuries/damages. Whether a defendant is liable generally turns on questions of

       duty, breach, proximate cause, and harm. A determination regarding

       apportionment of damages does not occur until these threshold liability issues

       are determined in favor of the plaintiff.


[54]   I.C. § 34-12-3-3(2) looks to the harm alleged and excludes actions against

       firearms sellers where the plaintiff’s injury resulted from the criminal misuse of

       the firearm by a third party. In this case, Runnels claims that the illegal straw

       sale was a proximate cause of his injury. Of course, it cannot be disputed that

       Blackburn and the shooter’s actions were also proximate causes. Regardless of

       the number of bad actors, the injury was the same. A comparative fault

       analysis would simply apportion the damages “among persons whose fault

       caused or contributed to causing the loss in proportion to their percentage of

       ‘fault’”. Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002).


[55]   Under the plain language of the statute, KS&E cannot be found liable for the

       alleged harm regardless of its degree of fault. Runnels complains that this

       interpretation would confer blanket immunity on firearms sellers engaged in the

       illegal and negligent sale of guns to straw purchasers. As observed by KS&E,

       the potential for significant criminal liability and regulatory penalties remains a

       deterrent to discourage firearms sellers from engaging in unlawful sales.

       Regardless, while the legislature could have – and arguably should have –



       Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016   Page 31 of 32
carved out an exception for straw purchases in subsection (2), it did not.9 The

policy arguments ably advanced by Runnels and the various amici curiae, no

matter how valid, should be directed to the legislature, not this court.




9
  Other states have expressly carved out such an exception. See, e.g., Ark. Code § 16-116-202(d)(1) (firearms
dealer “may be sued in tort for any damages proximately caused by an act of the…dealer in violation of a
state or federal law or regulation”); Colo. Rev. Stat. § 13-21-504.5(4) (same); N.H. Rev. Stat. § 508:21(1)(d)
(barred actions “shall not include an action brought against a…seller…convicted of a felony under state or
federal law, by a party directly harmed by the felonious conduct”).

Court of Appeals of Indiana | Opinion 49A02-1501-CT-42 | March 17, 2016                           Page 32 of 32
