Felon Steals Gun, Accidentally Kills Himself, Estate Sues Owner and Gun Manufacturer

But I’m happy to say that today’s Ryan v. Hughes-Ortiz (Mass. App. Ct. Jan. 6, 2012) throws out the lawsuit:

In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot’s sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot’s history of substance abuse, prior depression, and the loss of Milot’s driver’s license.

In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.

One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored….

In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges … [and] told her that he got them from Hughes’s house. She further testified that Milot told her that he found the key in Hughes’s house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes’s home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.

On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes’s house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot’s progress about two hours later. When Hughes returned home, he found Milot’s body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death…. Police speculated that “[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg…. The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died.” …

Milot, through an affirmative act of theft in violation of G.L. c. 266, § 30, stole a firearm from the home of Hughes, the owner, who had placed trust in him. We conclude that public policy dictates that Milot’s criminal conduct acts as a bar to recovery. See, e.g., Flanagan v. Baker, 35 Mass.App.Ct. 444, 448-449 (1993) (“A ‘burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step’ … could be denied recovery for public policy considerations”); Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 291-292 (2007) (student who committed statutory rape violated the law as well as “social values and customs” and “may not recover in tort against the school for his own sexual misconduct”)….

Our conclusion is further buttressed by Restatement (Second) of Torts, and Milot’s criminal acts — stealth of the pistol, and violation of 18 U.S.C. § 922(g)(1) (2006), which bars the possession of firearms and ammunition by convicted felons…. Milot’s actions constitute the sort of conduct described in Restatement (Second) of Torts § 889 comment b (1977), whereby a plaintiff is “barred from recovery for harm caused by violation of [a] statute … [where] the harm resulted from a risk of the type against which the statute was intended to give protection.” See § 889 comment b, supra, illustration 5…. [I]n enacting the Gun Control Act of 1968 (which includes 18 U.S.C. § 922[g][1], of which Milot was in violation), Congress sought to “curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them.” See also Barrett v. United States, 423 U.S. 212, 218 (1976) (“Congress … sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous”)….

The plaintiff brought claims of breach of the implied warranty of merchantability, negligence, wrongful death, and unfair and deceptive acts and practices against Glock…. The judge granted summary judgment on all claims after finding that the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903 (2006) (PLCAA or Act) barred the plaintiff’s claims against Glock….

The plaintiff alleges that the Glock pistol and gun case “were defective because the [gun] case caused the loaded Glock … pistol … to discharge through the case and because the pistol was likely to discharge unintendedly” and that “Glock so negligently and carelessly designed the Glock Model 17 pistol and storage case … that the pistol discharged into the Decedent’s body mortally wounding the Decedent.” The plaintiff’s claims of breach of the implied warranty of merchantability and design defect are thus based on the interaction between the Glock pistol and the gun case. We now consider whether the claims, as formulated by the plaintiff, are barred by the PLCAA….

[The PLCAA presumptively bars “any] civil action or proceeding … brought by any person against a manufacturer … of a qualified product, … for damages, punitive damages, … abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party….” … The parties do not dispute that the Glock pistol is a “firearm” and therefore a “qualified product” under the PLCAA …. [Plaintiff argues that] the gun case is not a qualified product, and thus the PLCAA does not bar her suit against Glock[, but a]s this argument was not made in the trial court in the first instance, the argument is waived. We express no opinion as to whether the PLCAA would preclude or permit a future plaintiff to bring claims involving the interaction between qualified and nonqualified products.

The final element of the definition of a “qualified civil liability action” is that the civil action “result[ed] from the criminal or unlawful misuse of a qualified product by the person or a third party.” The Act defines “unlawful misuse” to mean “conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product.” The plaintiff argues that “[t]he PLCAA is inapplicable because there was no evidence supporting the conclusion that the gun was misused, whether criminally, unlawfully or otherwise.” … [But] in violation of 18 U.S.C. § 922(g)(1), Milot possessed a firearm and ammunition after having been convicted of a felony. Since the civil action at issue here resulted from Milot’s possession of the Glock pistol, which constituted “criminal or unlawful misuse” due to Milot’s prior felony conviction, this is a “qualified civil liability action.” …