from the Wabash Superior Court The Honorable Karen A.
Springer, Judge Pro Tempore Trial Court Cause No.
Attorney for Appellant Robert F. Ahlgrim, Jr. State Auto
Insurance House Counsel Carmel, Indiana
Attorneys for Appellee Emily C. Guenin-Hodson Mark C. Guenin
Guenin Law Office, P.C. Wabash, Indiana
of the Case
Dunham's Athleisure Corp. ("Dunham's")
appeals the trial court's denial of its motion for
summary judgment on Keith Shepherd's complaint in which
Shepherd alleged, among other claims, Dunham's negligence
in the sale of a firearm to a third party. Dunham's
presents a single dispositive issue for our review, namely,
whether the trial court erred when it denied Dunham's
summary judgment motion.
and Procedural History
In the fall of 2016, Shepherd and his girlfriend Christina
Bowman went to Dunham's, and Bowman asked Shepherd to buy
her a gun. Shepherd refused, and the two began to argue.
After Bowman walked away, Shepherd turned to an employee
standing behind the counter where guns were sold and said,
"[W]hatever you do, don't ever sell that little girl
a gun. [S]he's dangerous. . . . [S]he would shoot
me[.]" Appellant's App. Vol. II at 67.
On December 15, Bowman went to Dunham's by herself and
bought a handgun. On December 23, Bowman used that handgun
to shoot Shepherd, who survived his injuries. On March 1,
2017, Shepherd filed a complaint against Dunham's
alleging negligence, negligent entrustment, and
"negligent training and supervision" and seeking
damages for his injuries. Id. at 41. The parties filed
cross-motions for summary judgment. Following a hearing, the
trial court denied the motions. In particular, in denying
Dunham's summary judgment motion, the trial court found
that genuine issues of material fact exist as to whether
Dunham's sale to Bowman was unlawful. And the court
concluded in relevant part that those questions of fact
precluded a determination on summary judgment that
Dunham's was immune from liability under Indiana Code
Section 34-12-3-3. This certified interlocutory appeal
Dunham's contends that the trial court erred when it
denied its summary judgment motion. Our standard of review is
clear. The Indiana Supreme Court has explained that
[w]e review summary judgment de novo, applying the same
standard as the trial court: "Drawing all reasonable
inferences in favor of . . . the non-moving parties, summary
judgment is appropriate 'if the designated evidentiary
matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.'" Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R.
56(C)). "A fact is 'material' if its resolution
would affect the outcome of the case, and an issue is
'genuine' if a trier of fact is required to resolve
the parties' differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences." Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
"demonstrate [ ] the absence of any genuine issue of
fact as to a determinative issue," at which point the
burden shifts to the non-movant to "come forward with
contrary evidence" showing an issue for the trier of
fact. Id. at 761-62 (internal quotation marks and
substitution omitted). And "[a]lthough the non-moving
party has the burden on appeal of persuading us that the
grant of summary judgment was erroneous, we carefully assess
the trial court's decision to ensure that he was not
improperly denied his day in court." McSwa ...