VI. Negligent Entrustment Exception

This chapter covers PLCAA’s negligent entrustment 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 determine whether the negligent entrustment exception will allow any of your claims to proceed.

To proceed under PLCAA’s negligent entrustment exception, you need:

a viable state-law tort claim;
against a seller of a qualified product;
who knows or reasonably should know;
that the recipient is likely to use the product in a manner involving an unreasonable risk of physical injury.

“[A]n action brought against a seller for negligent entrustment” can also unlock the courthouse door for a litigant who might otherwise be barred by PLCAA’s general definition of a Qualified Civil Liability Action (“QCLA”).²¹⁸15 U.S.C. § 7903(5)(A)(ii). Negligent entrustment is the tort of giving someone access to a potentially dangerous instrumentality, when the owner knows or reasonably should know that the recipient poses a danger to himself or others. Historically, the tort developed in the context of automobiles, but firearms are also a dangerous instrumentality, and gun dealers have been held liable for transferring them to someone who they had reason to believe was obviously unfit—like someone who is intoxicated, severely mentally ill, or who is straw purchasing a gun for a felon.²¹⁹See, e.g., Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1208 (Fla. 1997) (intoxicated buyer); Delana v. CED Sales, Inc., 486 S.W.3d 316, 326 (Mo. 2016) (en banc) (mentally ill buyer); Shirley ex rel. Graham v. Glass, 308 P.3d 1, 9 (Kan. 2013) (straw purchaser buying firearm for convicted felon).

The interplay between PLCAA and the underlying substantive state tort law can be a bit complex, because PLCAA contains its own definition of negligent entrustment:

“[T]he term ‘negligent entrustment’ means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”²²⁰15 U.S.C. § 7903(5)(B).

Even though it defines negligent entrustment for purposes of PLCAA, the statute does not itself create a private right of action. As a result, state tort law must provide the underlying cause of action.²²¹See 15 U.S.C. § 7903(5)(C); Brady v. Walmart Inc., No. 21-CV-1412, 2022 WL 2987078, at *10 (D. Md. July 28, 2022) (“Accordingly, because the PLCAA does not ‘create a public or private cause of action or remedy,’ I must look to state law.” (citation omitted)); Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1132-33 (D. Nev. 2019) (“Because the PLCAA does not ‘create a public or private cause of action or remedy,’ courts look to state law.” (citation omitted)); Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d 1216, 1225 (D. Colo. 2015) (“Although the PLCAA identifies negligent entrustment as an exception to immunity, it does not create a cause of action. Accordingly, the claim arises under state law.” (citation omitted)); Bryant-Bush v. Shawnee Gun Shop, Inc., No. 09-CV-00397, 2011 WL 13177539, at *3 (W.D. Mo. Mar. 29, 2011) (“Because these exceptions are not to be construed ‘to create a public or private cause of action or remedy,’ the Court must look to state common law.” (citation omitted)). Thus, a plaintiff must allege and ultimately prove a claim that satisfies both state law and the definition of negligent entrustment found in PLCAA.²²²See Delana, 486 S.W.3d at 324.

Important: this exception is not available for claims against a manufacturer (unless the manufacturer is also a “seller,” under PLCAA).²²³See 15 U.S.C. § 7903(5)(B) (defining negligent entrustment for purposes of PLCAA as tortious conduct on the part of a “seller”).

State Law of Negligent Entrustment

The law of negligent entrustment varies from state to state, but many states have adopted Section 390 of the Restatement (Second) of Torts, which provides:

“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”²²⁴Restatement (Second) of Torts § 390 (Am. L. Inst. 1965); see e.g., Delana, 486 S.W.3d at 324-26 & n.6 (holding that Missouri tort law follows the Restatement (Second) of Torts Section 390 with respect to negligent entrustment liability and listing cases from other jurisdictions that have adopted Section 390), but see In re Acad., Ltd., 625 S.W.3d 19, 31 (Tex. 2021) (declining to adopt Section 390 of the Restatement (Second) for negligent entrustment liability).

This is consistent with the definition of “negligent entrustment” in PLCAA. A negligent entrustment state law cause of action that satisfies Section 390 will frequently satisfy the PLCAA negligent entrustment exception (and vice versa).

The doctrine of negligent entrustment has most commonly been applied in the context of motor vehicles: person A permits person B to use their car, despite B’s youth or intoxication, and predictably, B injures person C with that car. In that instance, C could sue A for negligent entrustment. Depending on what state you are in, you may find that almost all of the negligent entrustment cases from appellate courts involve motor vehicles. But there is a long history of negligent entrustment cases involving guns entrusted to people who, by virtue of their age or other characteristic, are incompetent entrustees. Courts in states across the country have upheld negligent entrustment cases against sellers and other suppliers of firearms.¹See, e.g., Delana, 486 S.W.3d at 324-26 (reversing entry of summary judgment and allowing plaintiff to proceed on negligent entrustment claim against gun seller); Shirley ex rel. Graham v. Glass, 308 P.3d 1, 9-10 (Kan. 2013) (allowing negligent entrustment action to proceed where the seller knowingly sold a firearm to a convicted felon); Chiapperini v. Gander Mountain Co., Inc., 48 Misc.3d 865, 879-881 (N.Y. Sup. Ct. 2014) (denying motion to dismiss negligent entrustment claim where firearm seller sold gun to straw purchaser); Bryant-Bush, 2011 WL 13177539, at *3-4 (denying motion to dismiss negligent entrustment claim against seller); Kitchen v. K-Mart Corp, 697 So. 2d 1200, 1206 (Fla. 1997) (confirming that retail vendor can be liable for negligent entrustment when selling firearm to intoxicated purchaser); Foster v. Arthur, 519 So.2d 1092, 1095 (Fla. Dist. Ct. App. 1988) (affirming judgment finding housemate liable for negligent entrustment). Importantly, some cases have emphasized the dangerous nature of guns as the basis for a heightened duty of care on the part of the entrustor, or to conclude that injury at the hands of an incompetent entrustee was foreseeable.²See, e.g., Shirley, 308 P.3d at 9 (finding “highest standard of care” applicable in negligent entrustment claim involving firearm, based on previous cases holding that firearms are a dangerous instrumentality); Kitchen, 697 So. 2d at 1206 (imposing “highest degree of care” because a firearm is a “dangerous instrumentality” that “involves such a high degree of risk of serious injury or death”); see also Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d 965, 968 (Miss. 1986) (“Two quite common facts of life should have been apparent to Howard Brothers: one, a loaded pistol is dangerous; and two, loaded pistols are especially dangerous in the hands of persons with serious personality disorders. . . .”).

Under both Section 390 of the Restatement (Second) and PLCAA, it is essential to allege facts establishing that the defendant knew or had reason to know (or, as stated in some jurisdictions, should have known) that the person to whom they sold a gun was incompetent or likely to use the product in a manner “involving unreasonable risk of physical injury.” Courts have been skeptical of cases where there were no allegations about the interactions between the entrustor and entrustee,²²⁵See, e.g., Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1133 (D. Nev. 2019) (concluding that plaintiffs had not pled “entrustment element” where “there is no allegation that Slide Fire sold, or otherwise entrusted the shooter with, a bump stock” and rejecting a theory of “indirect entrustment”). or where allegations about the entrustee’s incompetence were not tied to the particular entrustee but instead relied on the nature of the product or the class of people to whom it was sold.²²⁶See, e.g., Timperio v. Bronx-Lebanon Hosp. Ctr., 384 F. Supp. 3d 425, 434 (S.D.N.Y. 2019) (concluding, where plaintiffs had not alleged knowledge of the entrustee’s incompetence, but instead argued “that it would be negligent for [the gun store] to entrust an AR-15 to anyone, because of the increase of mass shootings with shooters using the AR-15,” that plaintiffs had not stated a claim for negligent entrustment).

For example, in Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court considered whether the plaintiffs had properly alleged negligent entrustment against the manufacturers, distributors, and retailers involved in the sale of an AR-15 to the mother of the Sandy Hook shooter.²²⁷202 A.3d 262, 281-82 (Conn. 2019). Soto did not consider which of these defendants fell within the definition of “seller” for purposes of PLCAA, see 15 U.S.C. § 7903(5)(B), perhaps because the claim failed under state law. The court held that the plaintiffs had not stated a claim under Connecticut law because they had not alleged “that any of the defendants possessed any knowledge or had any specific reason to believe either that [the shooter’s] mother would share the [Bushmaster] XM15-E2S with her son or that he was especially likely to operate it unsafely or illegally.”²²⁸Id. The court also emphasized, in reaching this conclusion, the unusually attenuated factual connection between the manufacturer and the shooter.²²⁹Id. (“In any event, the plaintiffs have failed to cite to a single case, from any jurisdiction, that allowed an action for negligent entrustment to proceed when the nexus between a manufacturer of a product and the person who ultimately used that product in an unsafe manner was as attenuated as it is in the present case.”).

One final important note: Section 390 of the Restatement (Second) of Torts expressly contemplates that negligent entrustment be applied to sellers of chattel (in addition to bailors, or lenders, of chattel)—and this appears to be the rule in the majority of states that have considered the question.²³⁰See Delana v. CED Sales, Inc., 486 S.W.3d 316, 324-26 (Mo. 2016) (holding “defendant’s status as a seller does not preclude liability” for negligent entrustment); Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 394-95 (Alaska 2013) (holding that state law permits negligent entrustment claim against a firearms seller); Rains v. Bend of the River, 124 S.W.3d 580, 596-97 (Tenn. Ct. App. 2003) (“Tennessee law can accommodate a claim for negligent entrustment of handgun ammunition. . . .”); Ireland v. Jefferson Cnty. Sheriff’s Dep’t, 193 F. Supp. 2d 1201, 1229 (D. Colo. 2002) (concluding that Colorado law permits a negligent entrustment action against the seller of a firearm because “the theory of negligent entrustment as set out in Restatement (Second) of Torts § 390 applies to anyone who supplies a chattel for the use of another, including sellers”); Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1064 (N.Y. 2001) (holding that negligent entrustment is based on the supplier’s knowledge and “[g]un sales have subjected suppliers to liability under this theory”); Kitchen . K-Mart Corp., 697 So. 2d 1200, 1202-08 (Fla. 1997) (“We hold that an action for negligent entrustment as defined under section 390 of the Restatement is consistent with Florida public policy in protecting its citizens from the obvious danger of the placement of a firearm in the hands of an intoxicated person . . . .”); Knight ex rel. Brown v. Wal-Mart Stores, Inc., 889 F.Supp. 1532, 1539 (S.D.Ga.1995) (holding that Georgia law follows the Restatement and authorizes negligent entrustment liability for selling a firearm to a mentally ill individual); First Tr. Co. of N.D. v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 8 (N.D. 1988) (applying Restatement § 390 to hold that a gun dealer could be liable for negligent entrustment); Bernethy v. Walt Failor’s, Inc., 653 P.2d 280, 283 (Wash. 1982) (same). Comment (a) to Section 390 states:

“The rule stated [in this section] applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors or lenders, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for a consideration.”²³¹Restatement § 390 cmt. a.

Some states, like Texas, however, have expressly rejected Section 390 and have stuck to the older view, which is that negligent entrustment claims can only be brought against bailors and not against sellers.²³²See In re Acad., Ltd., 625 S.W.3d 19, 31 (Tex. 2021) (declining to adopt § 390 of the Restatement (Second) and noting that “[e]xtending a common-law negligent-entrustment claim to a sale of chattel, which results in the seller’s relinquishing control over the very thing that is subsequently used in a manner that causes harm” would contradict earlier Texas cases that held that “the basis for imposing liability on the owner of the thing entrusted to another is that ownership of the thing gives the right of control over its use.”); see also Laurel Yamaha, Inc. v. Freeman, 956 So. 2d 897, 904 (Miss. 2007) (“The doctrine of negligent entrustment ‘ought not to be extended where the party sought to be charged had no control over the machine and the other party actually committing the injurious wrong was the owner, sui juris.’”). If that is the case in your state, you may not be able to bring a negligent entrustment claim against a gun or ammunition seller, only an individual who had lent a gun to someone whom they knew to be incompetent. That said, and as described further below, other state law causes of action that also fit within PLCAA’s definition of negligent entrustment may still be viable.²³³See, e.g. Complaint at ¶¶ 103-09, 248-70, Zamora v. Daniel Defense, LLC, No. 2:23-cv-00017-AM (W.D. Tex. June 9, 2023), ECF No. 1, https://everytownlaw.org/wp-content/uploads/sites/5/2023/02/2022.02.22-File-Stamped-Complaint.pdf; Plaintiff’s Opposition to Defendant Oasis Outback, LLC’s Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) at 7-9, Zamora v. Daniel Defense, LLC, No. 2:23-cv-00017-AM (W.D. Tex. June 9, 2023), ECF No. 101, https://everytownlaw.org/wp-content/uploads/sites/5/2023/06/101-2023.06.09-Opposition-to-Oasis-Outback-MTD.pdf. Other states have not dealt with this precise issue, but plaintiffs should not be dissuaded from bringing a negligent entrustment claim in such jurisdictions, given that the weight of authority is in favor of recognizing such liability.

Interaction of Federal and State Law

For the most part, courts correctly conclude that the state law on negligent entrustment is substantially similar to PLCAA’s definition of negligent entrustment and do not parse potential differences between the two.²³⁴See Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 394 (Alaska 2013) (“The PLCAA definition [of negligent entrustment] is substantially the same as the Restatement version Alaska follows.”); Elkins v. Acad. I, LP, 633 S.W.3d 529, 534 (Mo. Ct. App. 2021) (noting that PLCAA’s negligent entrustment definition is “similar[ ]” to Missouri’s common law definition, “[t]hus a properly pleaded negligent entrustment claim against a seller of firearms . . . is recognized in Missouri common law and falls within the exceptions to PLCAA preemption”). However, a handful of courts have delved deeper into this issue when there is an open question of whether state tort law recognizes negligent entrustment liability in the context of a sale. Among those handful of cases, there is split authority on whether state negligent entrustment law should inform the interpretation of PLCAA’s negligent entrustment exception. The Texas Supreme Court has concluded that it should.²³⁵See In re Acad., 625 S.W.3d at 30 (“[C]ourts generally apply state law on negligent-entrustment claims in evaluating whether the exception applies.”). The Missouri Supreme reached the opposite conclusion in Delana.²³⁶486 S.W.3d at 324 (“[A] state-law claim may continue to be asserted, even if it is not denominated as a ‘negligent entrustment’ claim under state law, if it falls within the definition of a ‘negligent entrustment’ claim provided in the PLCAA.” (cleaned up)).

It is worth looking at the reasoning of each decision. In both cases the plaintiffs had brought negligent entrustment claims, and the question before the court was whether state law permitted their claims. In In re Academy, the Texas Supreme Court concluded that the plaintiffs’ negligent entrustment claim could not proceed because Texas law did not permit negligent entrustment claims against sellers (only lenders). The Texas Supreme Court then went on to analyze whether PLCAA’s negligent entrustment exception would apply and concluded that, “[b]ecause the PLCAA expressly disclaims the creation of any cause of action, and negligent entrustment is a creature of state law, state law necessarily informs the application of PLCAA’s negligent-entrustment exception.”²³⁷625 S.W.3d at 30. But, as the concurrence more persuasively noted, this reasoning is at odds with PLCAA’s plain text: “PLCAA does not leave room for this Court to supplement the Act’s definition of ‘negligent entrustment’ with Texas common law.”²³⁸Id. at 38 (Boyd, J., concurring). Noting that “Courts must adhere to legislative definitions of terms when they are supplied,” the Academy concurrence explained that “PLCAA’s statement that it does not ‘create’ a cause of action does not somehow alter its definition or exception for ‘negligent entrustment’ claims.”²³⁹Id. at 40 (Boyd, J., concurring).

The Missouri Supreme Court reached the opposite result in Delana, emphasizing that “[i]rrespective of what the claim is called, Missouri law authorizes claims that fit within the PLCAA’s definition of a non-preempted claim for ‘negligent entrustment.’”²⁴⁰486 S.W.3d at 326. It cited an earlier intermediate state appellate decision, Noble v. Shawnee Gun Shop,²⁴¹409 S.W.3d 476, 480 (Mo. Ct. App. 2013). in support. Noble’s reasoning is instructive:

“The parties’ dispute as to whether Appellants’ claims must be denominated as “negligent entrustment” claims under state law is something of a diversion. The Act creates an exception to its broad preemption of firearms-related tort suits for causes of action for “negligent entrustment.” The Act specifically defines the “negligent entrustment” claims which may continue to be asserted. While the Act uses the label “negligent entrustment” to denote this category of excepted claims, it could just as easily have used phrases like “exempt action” or “non-preempted claim” to denote the excepted claims, with the same legal effect. The label “negligent entrustment” is less important than the specific description Congress provided of the actions which survive. In other words, a state-law claim may continue to be asserted, even if it is not denominated as a “negligent entrustment” claim under state law, if it falls within the definition of a “negligent entrustment” claim provided in 15 U.S.C. § 7903(5)(B).”²⁴²Id., abrogated on other grounds by Delana, 486 S.W.3d at 326.

This reasoning is consistent with PLCAA’s overall statutory scheme and would be the better argument to make in a state that has not yet ruled on the issue.

Negligent Entrustment in Straw Purchasing Cases

Negligent entrustment cases are frequently brought against gun stores that have facilitated sales to gun traffickers and straw purchasers, i.e. individuals illegally purchasing guns for someone else. In fact, the first case to go to trial against a gun store after the enactment of PLCAA involved an obvious straw sale, which resulted in the shooting of two Milwaukee police officers. In that case, the jury held that the gun store at issue was liable for negligent entrustment (among other claims), and awarded the officers $5.7 million.²⁴³Eric Ortiz, Badger Guns Found Liable for Negligence in Milwaukee Police Shooting, NBC News (Oct. 13, 2015), https://www.nbcnews.com/news/us-news/badger-guns-found-liable-negligence-milwaukee-police-shooting-n443951. A detailed and helpful write-up of the case by the lead trial attorney can be found here: https://www.habush.com/wp-content/uploads/2022/11/TheVerdict_Fall.pdf. Patrick O. Dunphy, Badger Guns Verdict Lessons Learned, The Verdict, Fall 2016, at 8. Numerous other cases against gun stores involving negligent entrustment claims and sales to straw purchasers and gun traffickers have been allowed to proceed.²⁴⁴See e.g., City of Kansas City v. Jimenez Arms, Inc., Case No. 2016-cv00829, Summary Judgment Order at 6-7 (Jackson Cnty. Mo. Cir. Ct., entered Nov. 17, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/11/2022.11.17-Summary-Judgment-Order-Granted-and-Denied-in-Part.pdf; Englund v. World Pawn Exch., No. 16CV00598, 2017 WL 7518923, at *6-7 (Multnomah Cnty., Or. June 30, 2017); Corporan v. Wal-Mart Stores E., LP, No. 16-CV-2305, 2016 WL 3881341, at *5-6 (D. Kan. July 18, 2016) (unreported); Chiapperini v. Gander Mountain Co., Inc., 48 Misc. 3d 865, 874 (N.Y. Sup. Ct. 2014).

Sometimes, gun companies try to defend these cases by arguing that a sale to a straw purchaser does not fit into PLCAA’s statutory definition of “negligent entrustment,” because the definition requires transferring the gun to a person who is “likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”²⁴⁵15 U.S.C. § 7903(5)(B) (emphasis added). The argument goes that the straw purchaser’s illegal transfer of the gun to a third person does not qualify as “use” under PLCAA. One federal district court found this reasoning persuasive.²⁴⁶Minnesota v. Fleet Farm LLC, No. 22-CV-2694, 2023 WL 4203088, *10 (D. Minn. June 27, 2023). That court appeared to accept the gun store’s argument that the term “use” was ambiguous and that the legislative history of PLCAA indicated that “Congress contemplated negligent entrustment to include only direct entrustment to a shooter.”²⁴⁷Id.

There are numerous problems with this conclusion. First, case law is clear that in the context of firearms, the word “use” is much broader than “shoot” or “discharge.”²⁴⁸See e.g., Smith v. United States, 508 U.S. 223, 236-37 (1993) (concluding, in the context of a federal statute that “use of a firearm during . . . . drug trafficking offenses” includes bartering or exchanging a gun for drugs.) (quotation marks omitted). Second, contrary to the holding in Fleet Farm, the legislative history of PLCAA also makes clear that a plaintiff could “maintain a lawsuit [based on] . . . a straw purchase.”²⁴⁹151 Cong. Rec. S8917 (daily ed. July 26, 2005) (Statement of Sponsor Senator J. Sessions) (describing a viable claim for negligent entrustment). Third, in interpreting the ambiguous term “use,” the court should have applied the longstanding principle that preemption statutes such as PLCAA should be interpreted to have narrow preemptive effect.²⁵⁰See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). In light of that principle, the best reading of this provision is one in which “use” encompasses transferring guns to a person who is likely to injure another person or themselves, especially since Section 390 explicitly recognizes negligent entrustment liability against “[o]ne who supplies directly or through a third person[.]”²⁵¹Restatement (Second) of Torts § 390 (Am. L. Inst. 1965).

Finally, it is worth remembering that if your case involves an illegal sale to a straw purchaser or gun trafficker, then it likely falls into PLCAA’s Predicate Exception, in which case the statute’s protections fall away and there is no need to engage in a claim-by-claim analysis of PLCAA’s applicability. See Section IV. Thus, PLCAA’s definition of “negligent entrustment” becomes irrelevant.²⁵²Williams v. Beemiller, Inc., 952 N.Y.S.2d 333, 339-40 (App. Div. 2012) (holding that plaintiff’s straw-purchasing case fell into the predicate exception and, therefore, that the court “need not address plaintiffs’ further contention that this action falls within the PLCAA’s negligent entrustment or negligence per se exception.”).

The more you allege about what the defendant knew about the specific purchaser, the better. When straw purchasers are prosecuted federally, the prosecution documents (complaint and indictment, as well as attached affidavits) may include details that are useful to establish the defendant’s knowledge that the entrustee was likely to use the firearm in a manner that created risk of physical harm. Indicia that someone is engaging in straw purchasing, further discussed in Section IX — Basics of a Gun Sale, may include: repetitive buying of the same type of gun; bringing another person into the store who selects the gun but does not fill out the ATF forms; texting, making phone or video calls while selecting the gun; a lack of knowledge about/interest in the gun or guns being purchased; and paying in cash (especially when buying multiple guns).

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In this chapter

State Law of Negligent Entrustment

Practice Pointer

Interaction of Federal and State Law

Negligent Entrustment in Straw Purchasing Cases

Practice Pointer

Further Reading

Key Cases

Additional Cases