Pisanchyn Law Firm’s recent allowance to pursue a civil suit against a Susquehanna County gun store employee was featured in the Legal Intelligencer, Philadelphia Attorney’s Premier News Source.
A gun shop and its owner, whose son—an employee at the store—shot and killed a man, can be held civilly liable for the fatal shooting, a Pennsylvania judge has ruled.
Lackawanna County Court of Common Pleas Judge Terrence R. Nealon rejected the gun store owner’s bid to toss the civil suit against him that stemmed from a 2012 shooting on the store owner’s property. Nealon’s ruling Monday in Rogers v. Thomas denied the defendant’s attempts to toss the case on summary judgment.
The defendant, Hayden Thomas, who owned The Outdoorsman, where his son, Lloyd Thomas, 45, allegedly obtained the bullets used in the fatal shooting, contended that he owed no duty to the plaintiff, and his business could not be held vicariously liable.
However, Nealon noted that Lloyd Thomas had been working at the gun shop at the time of the shooting, and that Hayden Thomas had been warned by state police prior to the shooting that his son may be a danger. According to Nealon, the facts raised questions that should be presented to a jury.
“Based upon the information that was conveyed to The Outdoorsman’s president Hayden, by [state police corporal Scott R.] Walck, [Kathy] Chesnick and [Paul] McGovern, there are factual issues as to whether The Outdoorsman had a duty to act reasonably in controlling Lloyd on its premises where firearms and ammunition were located,” Nealon said. “Even if it is determined that Lloyd was acting outside the scope of his employment in shooting [Joshua] Rogers, it cannot be declared as a matter of law that Rogers is unable to establish employer liability.”
The plaintiff’s attorney, Mike Pisanchyn, said the opinion should send a message that gun store owners can be held civilly liable if they act negligently in running their stores.
“There are very little cases where this type of case survives summary judgment against anyone other than the shooter themselves,” Pisanchyn said.
Hayden Thomas’ attorney, Gary L. Weber of Mitchell Gallagher, however, said the plaintiff still faces a significant burden in establishing when Lloyd Thomas obtained the bullets, or where the bullets came from.
“There’s a lot of testimony that these bullets did not come from the store,” Weber said.
According to Nealon, Lloyd Thomas shot and killed Joshua Rogers in 2012 on property that Hayden Thomas owned. Lloyd Thomas was convicted of voluntary manslaughter, which was affirmed on appeal.
Rogers’ estate filed a wrongful-death and survival action against Lloyd Thomas, Hayden Thomas and The Outdoorsman Inc., alleging that Hayden Thomas and The Outdoorsman owned the gun used in the shooting; that Lloyd Thomas was acting as an employee of Hayden Thomas and The Outdoorsman at the time; and that Lloyd Thomas had a cognitive disability and mental capacity that rendered him unfit to use a gun, and Hayden Thomas and The Outdoorsman knew Lloyd Thomas was likely to use the gun in the manner he did, Nealon said.
In ruling on the defendant’s motion for summary judgment, Nealon noted Lloyd Thomas had testified he had been target shooting at squirrels with his 0.22 caliber gun while on Hayden Thomas’ property immediately before the fatal shooting, and that Lloyd Thomas had “always” acquired ammunition from the store, so a reasonable inference could be made that the bullets were obtained from The Outdoorsman. This, according to Nealon, raised questions about whether Hayden Thomas could have exercised control over the store to ensure Lloyd Thomas did not obtain ammunition.
Nealon, observing that Lloyd Thomas had been a store employee, wrote that Thomas testified that, in order to protect either his life or the store, employees were authorized to shoot a person “thought” or “believed” to be a threat.
“Thus, there are triable issues of fact as to whether Lloyd’s shooting of Rogers was within the scope of his employment since his intentional conduct was a kind of nature that he was employed to perform, that occurred within his authorized time and space limits, that was actuated by a purpose to serve The Outdoorsman, and that was not unexpected by The Outdoorsman,” Nealon said.
Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.
(Copies of the 14-page opinion in Rogers v. Thomas, PICS No. 16-0911, are available at http://at.law.com/PICS.)
