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TEXAS COMMON SENSE REJECTS RETAILER LIABILITY ARGUMENT (posted 5-15-02) Many of you will remember the tragic shooting spree at the Court of Appeals in the Tarrant County courthouse on July 1, 1992. Gregory D. Lott, who had practiced law off and on before surrendering his license in 1988, killed two people and wounded three others in a rampage fueled by a paranoid disorder and a violent temper. Lott came to view the court as his enemy after a bruising divorce and custody battle. So on May 2, 1992, Lott purchased a 9 millimeter Glock semi-automatic handgun from Wal-Mart in Arlington, Texas. The shooting spree occurred almost two months later. The family of one of the victims, and one of the wounded, both sued Wal-Mart claiming that Wal-Mart should have trained its sales associates to ask "screening questions," like those used by airlines relating to baggage, which might have provoked a suspicious reaction from persons suffering paranoid disorders. Apparently the rest of the plaintiff's argument was that when people such as Lott would reveal their true selves, the sales associate would then refuse to sell the gun to the purchaser. Now think about this. At that point in time the lunatic would be standing right in the middle of the sporting goods/gun section of a usually crowded, large retail store. I've seen these places, maybe you have too. There are guns, knives, and other potentially lethal objects all over the place. That's not the place I'd want anybody to give an unstable person bad news. Plus, this theory actually buys the idea that those screening questions used by airlines actually work, and personally I think that's a real stretch. In any event, unfortunately, the plaintiff's made it all the way to a jury, and imposed all those costs on the defendant. And Wal-Mart had to risk a jury trial decision which is by nature unpredictable. Wal-Mart's theory was that gun sellers have no legal obligation to determine the mental health of gun purchasers beyond a standard of what is reasonable, and they had no reason to be suspicious of Lott. Fortunately, the Texas jury decided in favor of Wal-Mart. Morals of the story: even cases as weak as this can make it to a jury, imposing substantial costs and risk on the defendant in the process. Be prepared for this risk by making sure insurance policies cover as many injuries and allegations as possible. Make sure you notify the insurance company about a claim even if you think they won't assume the defense. Have your business lawyer oversee every lawsuit, whether paid for by the business or the business's insurance company. If you sell guns, make sure your sales team knows what it means to reasonably determine the mental health of a gun purchaser. And if you are a commercial landlord, make sure your tenant (and its insurer) indemnifies you from any costs associated with this type of case via your lease. Marshall
v. Wal-mart Super Centers, Inc., Tarrant County District Court,
Case No. 236-154399-94, May, 2002. Close
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