V. Negligence Per Se Exception

In this chapter

This chapter covers PLCAA’s negligence per se exception. PLCAA’s exceptions are the second step of a two-step analysis to determine if the statute bars your claims. First, you should determine whether your lawsuit is a “qualified civil liability action,” as described in Section III. If it is, this chapter will help you learn whether the negligence per se exception will allow any of your claims to proceed.

PLCAA’s negligence per se exception depends on underlying state law, which varies between states but typically requires:

• A statutory violation;
• A statute intended to protect against the specific harm at issue; and
• A victim within the class of persons that the statute is intended to protect.

A State law “action brought against a seller for . . . negligence per se”²⁰³15 U.S.C. § 7903(5)(A)(ii). provides another means of unlocking the courthouse door for a lawsuit that would otherwise be barred by PLCAA. If a dealer committed the tort of negligence per se, that claim falls outside the definition of a Qualified Civil Liability Action (QCLA) and may proceed. Note, however, that this exception applies only to “sellers” (retailers, distributors, and importers), not manufacturers.

While PLCAA offers its own definition of “negligent entrustment,” see infra Section VI, it does not define “negligence per se.” Without a definition intrinsic to the statute, courts have looked to the relevant state’s definition of negligence per se. State-by-state law on negligence per se varies significantly, and practitioners are advised to closely review the case law of the state that is the source of substantive law for their client’s lawsuit. However, the general rule is that negligence per se requires: (1) a statutory violation; (2) of a statute designed to protect against the type of harm the actor’s conduct caused; and (3) a victim who falls within the class of persons the statute is designed to protect.²⁰⁴Restatement (Third) of Torts, § 14 (2010). In essence, the statutory violation creates the duty that is alleged to be violated. As PLCAA itself does not create any causes of action, a claim under a negligence per se theory must arise under state law.²⁰⁵See 15 U.S.C. § 7903(5)(c) (“[N]o provision of this chapter shall be construed to create a public or private cause of action or remedy[.]”); Woods v. Steadman’s Hardware, Inc., 2013 WL 709110, at *4 (D. Mont. Feb. 26, 2013) (“[A] state law claim for negligence based on a per se violation of state or federal law is still a state law negligence claim—and not a violation of the PLCAA.”); Gilland v. Sportsmen’s Outpost, Inc., 2011 WL 2479693, at *14 (Conn Super. Ct. May 26, 2011) (applying state negligence per se standards to determine if PLCAA exception applies).

The likelihood of success for a negligence per se theory, therefore, depends on the state in which the suit is brought or whose substantive law applies. For example, in Corporan v. Wal-Mart Stores East, LP, a Kansas federal court evaluated a motion to dismiss under PLCAA after the case came before it on diversity jurisdiction.²⁰⁶No. 16-2305, 2016 WL 3881341, at *1 (D. Kan. 2016). The plaintiff sued a dealer for selling a firearm to a straw purchaser in Missouri that was later used in a shooting in Kansas.²⁰⁷Id. The plaintiff claimed that the dealer violated the Gun Control Act and was thus negligent per se when it sold a gun under suspicious circumstances despite having actual or constructive knowledge that the firearm would be transferred to another person (the shooter). The Plaintiff also alleged that the dealer should have known that the shooter—who picked out the firearm but then let an accomplice pay for it—would have failed a background check because he was a convicted felon and therefore barred from purchasing or possessing a firearm.²⁰⁸Id; see also 18 U.S.C. §§ 922(m), 924(a)(1)(A). The plaintiff brought claims for negligence, negligent entrustment, negligence per se, and aiding and abetting a straw purchase.²⁰⁹2016 WL 3881341, at *1.

The court noted that plaintiff had not sufficiently pled a knowing violation of the Gun Control Act to bring her lawsuit within PLCAA’s predicate exception, but acknowledged that this deficiency could be easily addressed through amendment.²¹⁰Id. at *4. Because the predicate exception did not save the claims as a blanket matter, the court then evaluated whether individual claims could survive under their own specific PLCAA exceptions, including the negligence per se claim. To determine this, the court evaluated whether the plaintiff had stated a valid claim for negligence per se under either Missouri or Kansas law.²¹¹Id. at *4-5. The court did not engage in a choice of law analysis and did not explain why it evaluated both Kansas and Missouri law other than to note that the defendant had argued that the negligence per se claim failed under either state’s law. See id. at *4. Under Missouri law as it existed at the time, the federal court predicted that Missouri would recognize that the Gun Control Act was a statute intended to protect the public from gun crimes and that the victim fell within this class of persons.²¹²Id. at *4-5. A Missouri court later determined that § 922 of the Gun Control Act is not a statute on which a negligence per se claim can be premised because it contains its own enforcement provisions but creates no right of action. See Elkins v. Academy I, LP, 633  S.W.3d 529, 537-39 (Mo. Ct. App. 2021). Under Kansas law, however, the court concluded that a negligence per se claim could not be based on a Gun Control Act violation because the Act created no private right of action, which Kansas requires as an element of a negligence per se claim.²¹³2016 WL 3881341, at *5. The court noted that despite disallowing a negligence per se claim in this circumstance, Kansas would likely permit a claim of “simple negligence” that looked to federal law to define the standard of care. Id. The court therefore allowed the negligence per se claim predicated on Missouri law to survive but granted the motion to dismiss to the extent plaintiff sought to plead a negligence per se claim under Kansas law.²¹⁴Id. at *4-5.

As the Corporan case illustrates, for negligence per se claims some states require that the underlying statute have an independent cause of action, while others have no such requirement.²¹⁵Compare Brady v. Walmart Inc., No. 21-cv-1421, 2022 WL 2987078, at *12 (D. Md. 2022) (denying claim under the negligence per se exception and explaining that negligence per se requires that the violated statute create a cause of action under Maryland law); T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 529 (Ky. 2006) (rejecting negligence per se claim based on violation of 18 U.S.C. 922(b)(1) because the statute “does not explicitly provide a civil remedy”), with Minn. v. Fleet Farm LLC, 679 F. Supp. 3d 825, 847 (D. Minn. 2023) (denying a motion to dismiss negligence per se claim because in Minnesota, “negligence per se claims may arise for violations of penal statutes that otherwise do not provide for a civil action”). Additionally, while some states consider negligence per se to be its own cause of action, others view a violation of an underlying statute only as evidence of the defendant’s negligence but not as a standalone claim.²¹⁶Compare Elkins, 633 S.W.3d at 537 (“Missouri courts recognize negligence per se as a cause of action.”), with Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 529 n.6 (1st Cir. 2024) (noting with approval that the district court declined to apply the negligence per se exception because “Massachusetts does not recognize the negligence per se doctrine”), petition for cert. granted on other grounds, — S.Ct. —-, 2024 WL 4394115 (Mem) (U.S. Oct. 4, 2024) (No. 23-1141). Additionally, the law differs from state to state as to whether violations of municipal codes may serve as the basis for negligence per se.²¹⁷See Timperio v. Bronx-Lenanon Hosp. Ctr., 384 F. Supp. 3d 425, 434–35 (S.D.N.Y. 2019) (rejecting a PLCAA claim in part because under New York law, violation of an administrative rule is not negligence as a matter of law because regulations lack the force and effect of a statute); Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1133-34 (D. Nev. 2019) (noting that Nevada has endorsed negligence per se actions for building and municipal code violations, but denying the applicability of the negligence per se exception because the statute at issue was not intended to protect against the asserted injuries). In light of all of these state-specific variables, plaintiffs may have greater success invoking PLCAA’s negligence per se exception in states with broad negligence per se laws and/or statutes specifically enacted to protect victims of gun violence.

A question that frequently arises in the context of PLCAA litigation is: what is the difference between a negligence per se claim and a claim brought under the predicate exceptions, since both involve violations of a statute? As noted above, the negligence per se claim applies only to sellers, as opposed to the predicate exception which applies to both sellers and manufacturers. However, the benefit of a negligence per se claim is that the plaintiff does not need to allege a “knowing” violation of a statute–unless, of course, that is a required element of the underlying statute.

Further Reading

• Corporan v. Wal-Mart Stores E., LP, No. 16-CV-2305, 2016 WL 3881341, at *2 (D. Kan. 2016) (granting in part and dismissing in part a motion to dismiss under PLCAA, and looking to underlying state law to evaluate viability of negligence per se claim predicated on alleged violation of Gun Control Act during gun sale to straw purchaser)
• Minn. v. Fleet Farm LLC, 679 F. Supp. 3d 825, 846-47 (D. Minn. 2023) (rejecting arguments that negligence per se claim cannot be predicated on Gun Control Act and state analogue because these statutes protect the public generally rather than a narrower class of persons, and because these statutes do not provide a private right of action)
• Brady v. Walmart Inc., No. 21-cv-1421, 2022 WL 2987078, at *12-13 (D. Md. 2022) (negligence per se exception did not apply where state law treated statutory violation as mere evidence of negligence and not as negligence per se in the absence of express statutory language)
• Elkins v. Acad. I, LP, 633 S.W.3d 529, 537-39 (Mo. Ct. App. 2021) (recognizing that Missouri law allows negligence per se claims, but declining to apply negligence per se exception where, under state law, businesses generally have no duty to protect against third party criminal conduct absent a special relationship with plaintiff or other “special facts and circumstances”)
• Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 633 F. Supp. 3d 425, 449 (D. Mass. 2022) (declining to apply negligence per se exception to firearms manufacturers based on textual limitations within PLCAA, because negligence per se is not an independent cause of action in Massachusetts, and because the Mexican government is not part of the class of people the underlying statutes were meant to protect); rev’d on other grounds, 91 F.4th 511, 529 n.6 (1st Cir. 2024), petition for cert. granted on other grounds, — S.Ct. —-, 2024 WL 4394115 (Mem) (U.S. Oct. 4, 2024) (No. 23-1141)

---

© 2024 Everytown for Gun Safety Support Fund