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Kmart negligent in sale of gun used to commit suicide, jury decides.

Kmart Corp. acted with malice or reckless disregard toward human life when it sold 19-year-old Ryan Eslinger a 12-gauge shotgun, which he used to kill himself a day later, a federal jury in Utah has decided. (Eslinger v. Kmart Corp., No. 2:97-CV-0981-ST (D. Utah Sept. 12, 2001).)

"This was a case about a company that didn't give enough attention to the sale of guns. It sold guns like it sold yo-yos and hula hoops," said James McKenna of Saint Clair Shores, Michigan, who represented Ryan's parents. "Mass retailers need to spend time and energy training staff that is going to sell guns." McKenna and his law partner have handled two similar cases.

Doctors had diagnosed Ryan with paranoid schizophrenia in 1995. He suffered delusions, heard voices, had violent outbursts, and was obsessed with his own blood. Ryan had been hospitalized six times, most recently in April 1996 after he cut his neck in an act of self-mutilation.

Less than three weeks later, on May 22, he bought a Remington 870 pump-action shotgun at a Kmart store in Kimball Junction, Utah. He returned to the store the next day and asked a security guard to help him reassemble the firearm, which he had taken apart. Ryan retrieved it later that day, went home, and shot and killed his Rottweiler puppy and then himself.

His parents said that their son did not show proper identification, as federal law requires for gun sales. He showed only a passport, which listed his name and date of birth but not a current address. The couple filed suit against Kmart, claiming that the Troy, Michigan,-based retailer could have prevented Ryan's suicide if its employees had obeyed the laws.

The Eslingers also alleged that a federal law bans sales to people who have been committed to mental institutions. Their son should not have been sold the shotgun, they said, because he was "obviously mentally ill." His arms and neck were scarred from self-mutilation and a suicide attempt, and he was heavily medicated with Clozaril. The antipsychotic gave Eslinger a dazed expression and monotone, slurred speech. It also made him drool excessively.

Kmart violated another federal law, the Eslingers alleged, that prohibits minors from selling guns; it let a 17-year-old store clerk make the sale. They charged that Kmart was negligent in its hiring and employee training. McKenna told jurors that the retailer's five-minute video on firearms sales was inadequate training for a responsibility as serious as selling weapons and ammunition.

The defense countered that the case centered on "personal responsibility and individual choices," and that Ryan's suicide was a "deliberate, intentional act." It said that Kmart had complied with federal laws regulating gun sales and that the sale to Ryan was not a proximate cause of his death.

"The actual and proximate cause of Ryan's death was his shooting himself," the defense stated in written arguments, adding that Kmart's failing to obtain Ryan's current address did not lead to his death. Attorneys for Kmart pointed to Ryan's previous suicide attempt and a will he had crafted shortly before his death as proof that he would have killed himself by another means had he not obtained the gun.

As for his mental state, defense briefs argued that "there will be no evidence at trial to suggest that any Kmart employee knew or had reason to know that Ryan Eslinger had been committed to a mental institution prior to his purchase of a gun." Employees involved in the sale recalled only that Ryan appeared "clean-cut" and that he had a "normal demeanor," the defense said. It also noted that he had answered "no" to a question about mental institutions on the federally required gun sales form.

The jury deliberated for nearly six hours and agreed with the plaintiffs: Ryan was not responsible for his suicide, and Kmart was solely to blame for his death. The 12-person panel awarded the Eslingers compensatory and punitive damages. The defense might appeal.

Dennis Henigan, director of the Legal Action Project at the Brady Center to Prevent Handgun Violence in Washington, D.C., said, "Firearms are the only consumer product designed to injure or kill. Those who profit from their sale owe a special duty to protect against their misuse. This is the message of the Utah verdict." Henigan consulted with the Eslingers' lawyers on key legal issues in the case.
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Author:Reichert, Jennifer L.
Publication:Trial
Geographic Code:1USA
Date:Dec 1, 2001
Words:729
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