Mark Johnson v. Walmart Stores, Incorporated ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4226
M ARK D. JOHNSON, individually
and as Administrator of the E STATE OF
C ANDACE M. JOHNSON, deceased,
Plaintiff-Appellant,
v.
W AL-M ART S TORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-1126—Michael M. Mihm, Judge.
A RGUED N OVEMBER 4, 2009—D ECIDED D ECEMBER 1, 2009
Before C UDAHY, F LAUM, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Plaintiff-appellant Mark Johnson
sued defendant-appellee Wal-Mart Stores, Inc. (“Wal-
Mart”) on a negligence theory for selling bullets to his
wife, Candace Johnson, without asking her to present
the identification card required by Illinois law. The
woman did not have said card at the time of purchase.
She subsequently used the bullets to commit suicide. At
2 No. 08-4226
the district court, Wal-Mart prevailed on a Fed. R. Civ. P.
12(b)(6) motion by arguing that the Illinois “suicide rule”
broke the causal chain between a negligent act and the
resultant harm. Johnson now appeals the district court’s
grant of the motion to dismiss.
For the following reasons, we affirm the district court’s
judgment.
I. Background
This is a diversity negligence case governed by Illinois
law. Appellant Mark Johnson is the Administrator of the
Estate of Candace M. Johnson, his deceased wife. On
January 22, 2008, Candace Johnson walked into a Wal-Mart
store in Peoria and purchased bullets without possessing
an Illinois Firearm Owner’s Identification (“FOID”) Card.
Plaintiff-appellant alleges that Christy S. Blake, a sales
clerk in the sporting goods department of the store,
did not require Candace to present a FOID Card. Under
the Firearm Owners Identification Card Act (“FOIC Act”),
[N]o person may knowingly transfer, or cause to be
transferred, any firearm, firearm ammunition, stun
gun, or taser to any person within this State unless
the transferee with whom he deals displays a
currently valid Firearm Owner’s Identification Card
which has previously been issued in his name by
the Department of State Police under the provisions of
this Act.
430 ILCS 65/3(a). Plaintiff-appellant further alleges that
Candace Johnson would have been unable to get such a
No. 08-4226 3
card because she “had been a mental patient” within five
years of the incident. Appellant does not allege that
Johnson was mentally ill when she purchased the bullets.
The statute requires an applicant for a FOID card to
submit evidence that, among other things, “[h]e or she
has not been a patient in a mental institution within the
past 5 years and he or she has not been adjudicated as
a mental defective . . . .” 430 ILCS 65/4(a)(2)(iv).
When Candace got home from Wal-Mart, she loaded the
bullets into a revolver and shot herself in the chest. Her
husband returned from work a few hours later and dis-
covered her bleeding on the floor, still alive. He called
the ambulance, which transported Candace to a hospital.
Candace died there the next morning.
On May 30, 2008, Johnson filed his complaint against
Wal-Mart in the United States District Court for the
Central District of Illinois. The complaint set forth four
theories of liability: negligence, wrongful death, and
two emotional distress claims. Defendant moved to
dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be
granted. With respect to the two theories of liability at
issue in this appeal, Wal-Mart argued that suicide is an
independent intervening event that prevents plaintiff
from showing proximate cause, a necessary element
for recovery in a negligence action. The district court
agreed. In an order dated November 10, 2008, the court
dismissed all claims but granted Johnson leave to
amend his complaint to allege that the suicide was a
foreseeable consequence of the statutory violation.
4 No. 08-4226
Plaintiff instead moved for a final order, from which he
now appeals the dismissal of the negligence and wrongful
death claims. Johnson argues that we should reverse
the district court’s judgment because “the suicide rule
should not prevail over the prima facie evidence rule.”
Johnson abandons his emotional distress claims.
II. Discussion
We review a district court’s decision to dismiss a case
under Fed. R. Civ. P. 12(b)(6) de novo. Michalowicz v.
Village of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). In
doing so, we accept the allegations in plaintiff’s com-
plaint as true and draw all reasonable inferences in
favor of the plaintiff. Albright v. Oliver, 510 U.S. 266, 268
(1994); Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d
614, 618 (7th Cir. 2007). In order to survive a motion to
dismiss, the complaint must make factual allegations
that “raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Johnson alleges that Wal-Mart was negligent in
training Christy Blake, the sporting goods department
sales clerk who sold bullets to Candace, in the appropriate
procedure for dealing in firearms or ammunition
pursuant to the FOIC Act. Under Johnson’s theory, this
deficient training and the prohibited transaction that
followed together caused his wife’s death. To state a
negligence claim under Illinois law, “the plaintiff must
establish that the defendant owed a duty of care, that the
defendant breached that duty, and that the plaintiff
incurred injuries proximately caused by the breach.”
No. 08-4226 5
Espinoza v. Elgin, Joliet & E. Ry. Co., 649 N.E.2d 1323,
1326 (Ill. 1995). Under Crumpton v. Walgreen Co., 871
N.E.2d 905, 910 (Ill. App. Ct. 2007), “[a] proximate cause
is one that produces an injury through a natural and
continuous sequence of events unbroken by any
effective intervening cause.”
Traditionally, Illinois courts have found suicide to be
an unforeseeable act that breaks the chain of causation
required by proximate cause. See, e.g., Jarvis v. Stone, 517
F. Supp. 1173 (N.D. Ill. 1981); Luss v. Village of Forest
Park, 878 N.E.2d 1193 (Ill. App. Ct. 2007). “ ‘It is well
established under Illinois law that a plaintiff may not
recover for a decedent’s suicide following a tortious act
because suicide is an independent intervening event
that the tortfeasor cannot be expected to foresee.’ ”
Crumpton v. Walgreen Co., 871 N.E.2d at 910 (quoting
Chalhoub v. Dixon, 788 N.E.2d 164, 167 (Ill. App. Ct. 2003)).
This rule carries an exception that deems suicide fore-
seeable when the defendant’s conduct caused an injury,
most often to the head, that made the decedent so “ ‘bereft
of reason’ ” as to cause him to attempt suicide. Crumpton,
871 N.E.2d at 911 (quoting Stasiof v. Chicago Hoist & Body
Co., 200 N.E.2d 88, 91 (Ill. App. Ct. 1964), aff’d sub nom.
Little v. Chicago Hoist & Body Co., 203 N.E.2d 902 (Ill.
1965)). Johnson does not assert that the exception covers
his complaint.
Instead, plaintiff-appellant argues that Wal-Mart vio-
lated the FOIC Act by selling his wife bullets without
examining her FOID Card, that this violation constitutes
prima facie evidence of negligence under Illinois law,
6 No. 08-4226
and that “suicide does not break the chain of causation
within the context of application of the prima facie evi-
dence rule.” Plaintiff concludes that the combination of
these three conditions entitles him to submit his claim to
a jury. The district court rejected this reasoning. The
court defined its inquiry as “[w]hether the suicide
rule applies in a case where a firearms dealer has sold
ammunition to a person who did not have a FOID card,”
identified the case as one of first impression in this
Circuit, and noted the dearth of authority on the matter
in our sister courts. It then found that plaintiff failed to
establish that Wal-Mart’s violation of the FOIC Act was
the proximate case of Johnson’s death, “a showing
which would appear to be precluded by the suicide rule
as a matter of law” because nothing in the complaint
enabled the court to draw the inference that Johnson’s
suicide was foreseeable.
Plaintiff’s first two propositions are uncontroversial. In
our review of the district court’s dismissal, we accept
Johnson’s allegation that Wal-Mart violated the FOIC
Act as true. We may also reasonably infer that the Act is
a public safety statute within the meaning of Kalata v.
Anheuser-Busch Cos., 581 N.E.2d 656 (1991), and that its
violation is indeed prima facie evidence of negligence
in Illinois. Id. at 661 (“A violation of a statute or
ordinance designed to protect human life or property is
prima facie evidence of negligence”) (quoting Barthel v.
Ill. Cent. Gulf R.R. Co., 384 N.E.2d 323, 326 (1978)).
To support his third point, appellant cites portions of
Kalata:
No. 08-4226 7
A party injured by such a violation may recover only
by showing that the violation proximately caused his
injury and the statute or ordinance was intended to
protect a class of persons to which he belongs from
the kind of injury that he suffered. The violation does
not constitute negligence per se, however, and there-
fore the defendant may prevail by showing that he
acted reasonably under the circumstances.
581 N.E.2d at 661. He places particular emphasis on the
following segment:
The intervention of independent concurrent or inter-
vening forces will not break causal connection if the
intervention of such forces was itself probable or
foreseeable. What is the proximate cause of an injury
is ordinarily a question of fact to be determined by
a jury from a consideration of all of the evidence.
Id. at 662 (emphasis added) (quoting Davis v. Marathon Oil
Co., 356 N.E.2d 93, 99 (Ill. 1976)). This language does
little to aid Johnson. The plaintiff in Kalata presented
some evidence that an icy stairway constructed in viola-
tion of the Chicago Municipal Code acted as a proximate
cause of his injuries, but the parties disagreed on
whether this evidence entitled plaintiff to a finding of
proximate cause as a matter of law. Upon review of the
record, the Illinois Supreme Court decided to send the
issue to a jury. That is, the court chose the option that
gave the statutory violation relatively less legal weight.
The current case presents a very different issue, namely,
whether the alleged violation of a public safety statute
alone can generate a reasonable inference of proximate
8 No. 08-4226
cause in the presence of a suicide. In this context, where
the appellant wishes to assign the transgression more
weight than the district court thought proper, Kalata
does not require us to deviate from the traditional rule
describing suicides as intervening acts that break the
causal chain because of their presumptively unfore-
seeable nature. Most other jurisdictions utilize the same
approach. See, e.g., Brashear v. Wal-Mart Stores, Inc., 117
F.3d 1420, 1997 U.S. App. LEXIS 17734, at *5 (6th Cir.
July 10, 1997) (affirming grant of summary judgment in
favor of Wal-Mart in a suit arising out of the suicide of
a nineteen-year-old who purchased a handgun at the
defendant’s store in violation of 18 U.S.C. § 922(b), the
federal gun control statute, because the suicide broke
the chain of causation); Scoggins v. Wal-Mart Stores, Inc.,
560 N.W.2d 564 (Iowa 1997); Rains v. Bend of the River,
124 S.W.3d 580 (Tenn. 2003) (finding that suicide is not
a reasonably foreseeable consequence of selling bullets to
a “well-adjusted” eighteen-year-old in violation of 18
U.S.C. § 922(b) and ordering summary judgment for
retailer). Courts in these states generally allow for
potential liability only when additional circumstances
concomitant with the improper purchase lead to an
objectively reasonable inference that the buyer will
commit suicide. See, e.g., Knight v. Wal-Mart Stores, Inc.,
889 F. Supp. 1532 (S.D. Ga. 1995) (finding foreseeability
to be an issue of material fact when purchaser was well-
known at local gun store, looked “crazy” and upset, and
the store turned on a security code after the purchaser
walked in).
Appellant presents one instance where a state court
rejected this approach and found proximate cause in a
No. 08-4226 9
statutory violation alone. See Crown v. Raymond, 764 P.2d
1146 (Ariz. 1988). In Crown, the Arizona Supreme Court
confronted a situation where a five-foot-one, seventeen-
year-old girl who appeared to be in good spirits purchased
a handgun in violation of both federal and state laws
prohibiting gun sales to minors and used it to commit
suicide the next day. The court did hold that the
existence of the state statute “itself expresses an aware-
ness by the legislature that children in possession of
guns are at risk of injuring either themselves or others,
either negligently or intentionally,” and satisfies the
requirement for proximate cause. Id. at 1149. It then
remarked that the argument that the decedent appeared
cheerful when buying the gun “would be persuasive if
this were a case involving an adult purchaser.” Id. With-
out going so far as to establish that a statutory violation
always makes suicide reasonably foreseeable, Crown
thus laid the foundation for the reading of the FOIC Act
Johnson urges us to adopt. Yet Illinois courts have
stood firm in their adherence to the traditional suicide
rule in the two decades that have passed since Crown
came down, even though the FOIC Act has been in effect
since 1992. Moreover, Arizona law made violation of the
statute at the heart of Crown negligence per se, not
prima facie evidence of negligence. For these reasons, we
find Crown unpersuasive. In our view, Illinois law contin-
ues to deem suicide an independent intervening event
that breaks the chain of causation, even after an illicit
gun sale.
Elsewhere in his brief, Johnson seems to acknowledge
that foreseeability of the injury is a necessary condition of
10 No. 08-4226
his negligence claims and argues that suicide in this
case was foreseeable. He bases this assertion on
two grounds. First, he claims that the FOIC Act “provides
built-in foreseeability of harm from an illegal sale of
firearms or ammunition” because it prohibits certain
categories of people from getting the ID. Even if we were
to read the statutory requirements that FOID applicants
certify they have not been in a mental institution within
five years of applying for the card as prohibitions on
firearm purchases by this category of people, nothing
in the statute suggests that such a prohibition is
designed to prevent suicide. Under plaintiff’s logic,
every murder or violent crime committed with a gun
purchased in violation of the FOIC Act would
impose liability on the retailer. In the absence of an
explicit legislative command that establishes a strict
liability regime, that cannot be the outcome. As the
district court correctly determined, the FOIC Act cannot
currently bridge the gap left in a negligence action that
does not separately establish proximate cause.
Johnson also argues that because suicides outnumber
murders nationwide and the former may be foreseeable
under Illinois law, the latter must be too. He cites data
from the Center for Disease Control, which counted
29,350 suicides nationwide in 2000 and 16,765 murders
in the same period. See Suicide in the U.S.: Statistics
and Prevention, National Institute of Mental Health
(July 27, 2009), available at http://www.nimh.nih.gov/
health/publications/suicide-in -th e-u s-s ta tistics-
and-prevention/index.shtml. Regardless of whether these
No. 08-4226 11
individual data points actually represent statistically
robust relationships between the two types of death over
time, Johnson’s argument holds no merit. Raw incident
counts have little bearing on proximate cause analysis
for a public safety statute, where courts determine
whether the alleged harm is of the type the legislature
meant to prevent with its law. See Young v. Bryco Arms,
821 N.E.2d 1078, 1086 (Ill. 2004); Kalata, 581 N.E.2d at
661. Otherwise, a violation of every public safety rule
would lead to liability for harms incurred in high-fre-
quency events like auto accidents, no matter how attenu-
ated that outcome is from the behavior targeted by the
infringed statute.
In addition to the above objections, plaintiff attempts
to portray the suicide rule as a relic of “a medieval Chris-
tian view that suicide was a sin and a crime.” This free-
floating critique of established law is both weak and
shallow. If we were to find that the sale of bullets to
Candace was the proximate cause of her suicide without
any specific evidence of foreseeability, we would be
rejecting the premise that the woman retained free
will. That is, we would be holding that the decedent’s
decision to use an improperly obtained but legal product
to end her own life was a nullity from the perspective
of the law. A finding of proximate cause on these bare
facts would be tantamount to a statement that Candace
died in a normal, predictable fashion expected from
anyone who violates the FOIC Act. This conclusion
would reject the idea of self-determination, a central
tenet of the very Enlightenment philosophy plain-
12 No. 08-4226
tiff espouses. Fortunately, the law calls for the opposite
result.
Finally, Johnson claims that the district court
erroneously dismissed the case under the principles of
negligence per se instead of prima facie negligence.
Appellees correctly point out that the former is actually
a more generous presumption than the latter. None-
theless, to ensure recovery, both doctrines demand proxi-
mate cause, which is absent from the case before us. See
Bier v. Leanna Lakeside Prop. Ass’n, 711 N.E.2d 773, 783
(Ill. App. Ct. 1991) (“Conduct violating legislated rules
is negligent, and if a statutory violation proximately
causes an injury of the kind the legislature had in mind
when it enacted the statute, the offending party is civilly
liable for that injury.”). Appellant misinterprets a subse-
quent sentence in that same decision: “Thus, if the viola-
tion of a statute constitutes prima facie evidence of negli-
gence, the case goes to the jury and cannot be dismissed on
the basis of the lack of a common-law duty.” Id. at 783. The
line does not guarantee access to a jury in all situations
where a plaintiff presents some prima facie evidence of one
or two negligence elements. It just explains that, for certain
statutory violations, such evidence prevents a court
from dismissing the claim for failure to show the
existence of a duty. Courts remain entirely free to
dismiss a claim supported by prima facie evidence
where the pleadings do not permit a reasonable
inference of proximate cause.
No. 08-4226 13
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of Wal-Mart’s motion to dismiss the com-
plaint.
12-1-09