ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (Civil No. 77-84)
Before Rosenn, Garth and Higginbotham, Circuit Judges.
In this appeal we are asked to decide whether a retail store can be held liable under Delaware law when the ammunition it sold was used to injure an innocent person in an attempted murder and robbery.
We conclude that the district court was in error in granting a summary judgment for the defendant and therefore we will reverse the judgment.
On February 25, 1976, Lloyd Fullman, Jr. purchased from Sears, Roebuck and Co. (Sears) a .22 caliber rifle and rifle cartridges. Six weeks later, in an attempted robbery of a Wilmington restaurant, Fullman, using the rifle and ammunition purchased at Sears, shot the plaintiff, James Hetherton, in the head. At the time, Hetherton, an off-duty police officer, was employed as a guard in the restaurant. Hetherton was injured seriously and, as of the time of the suit, still had "13 fragments of the projectile in his head." In the related criminal proceeding in state court, Fullman was convicted of attempted second degree murder, attempted robbery, possession of a deadly weapon during the commission of a felony, possession of a deadly weapon by a person prohibited and conspiracy of the second degree. These convictions, however, were not Fullman's first "brush with the law." He had been convicted previously of the felonies of attempted robbery, conspiracy of the second degree, and falsely reporting an incident. As a result of these prior felony convictions Fullman was prohibited under Delaware law from purchasing the rifle and cartridges obtained from Sears. Additionally, Delaware law required Sears, prior to sale, to receive from two freeholders the positive identification of a purchaser of any "deadly weapon." No freeholders identified Fullman when he made his purchase. He merely produced a Delaware driver's license and completed a Federal Firearms Transaction Record, Form 4473.*fn1 Although Fullman had a criminal record. He indicated on Form 4473 that he had never been convicted of a felony.*fn2
Hetherton and his wife brought this suit alleging that Sears was negligent when it sold the gun and ammunition to Fullman and Sears was therefore liable for Hetherton's injuries. They asserted that Sears was negligent because it had failed to require at least two freeholders to identify Fullman before making the sale as required by 24 Del.C. § 904;*fn3 that Sears was negligent because it sold a weapon to a convicted felon without having reasonable cause to believe that the sale was not in violation of state law as required by federal law;*fn4 that Sears was negligent because it failed to determine whether Delaware law prohibited Fullman from possessing a deadly weapon.*fn5
The district court granted Sears' motion for summary judgment, finding that Sears was not liable. Hetherton v. Sears, Roebuck and Co., 445 F. Supp. 294 (D.Del.1978). The plaintiffs assert here (1) that Sears is liable because it negligently failed to require Fullman to produce two freeholders to identify him and (2) that Sears is liable "under ordinary negligence principles."
Less than a decade ago the National Commission on the Causes and Prevention of Violence stressed that: "The availability of guns contributes substantially to violence in American society. Firearms, particularly handguns, facilitate the commission and increase the danger of the most violent crimes assassination, murder, robbery and assault." National Commission on the Causes and Prevention of Violence: Final Report 169 (1969). The majority of the Commission urged the passage of more vigorous controls of firearms than had ever been enacted in the past. Some opponents of the recommendations felt that the present statutes were, on balance, adequate to protect the victims of crime. Despite the failure of the nation to adopt more comprehensive provisions, we are not entirely without federal and state regulation on the sale of weapons.
At least since 1911, Delaware has had a number of statutes regulating the sale and possession of guns and ammunition including 24 Del.C. § 904, on which the ...