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Dunham's Athleisure Corp. v. Shepherd

Court of Appeals of Indiana

May 1, 2019

Dunham's Athleisure Corp., Appellant-Defendant,
v.
Keith Shepherd, Appellee-Plaintiff.

          Appeal from the Wabash Superior Court The Honorable Karen A. Springer, Judge Pro Tempore Trial Court Cause No. 85D01-1703-PL-156

          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

          Najam, Judge.

         Statement of the Case

         [¶1] 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.

         [¶2] We reverse.

         Facts and Procedural History

         [¶3] 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.

         [¶4] On December 15, Bowman went to Dunham's by herself and bought a handgun.[1] 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.[2] 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 ensued.

         Discussion and Decision

         [¶5] 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 ...

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