Negligence & Tort

Illegally Purchased Rifle & Ammunition - Security Guard Injured

Injuries alleged:

Permanent disability as result of gunshot wounds, post-traumatic stress disorder

Name of case:

Beavers, et al. v. Dave's Sporting Goods, Inc., et al.

Court/case #:

Berkshire Superior Court, 95-0489; Appeals Court, 98-P-860

Tried before judge or jury:

N/A (settled with college defendants after mediation, settled with firearms defendants without mediation before trial)

Name of mediator:

Jeffrey S. Stern, Sugarman, Rogers, Barshak & Cohen, Boston

Special damages:

$350,000 (medical, psychiatric and home care costs)

Amount of settlement:

$1.24 million ($480,000 in immediate cash payments from firearms defendants, $760,000 paid by college defendants partly in immediate cash payments and the remainder in a structured payment of $1.4 million over the next 30 years)

Date:

Aug. 5, 2001

Attorneys for plaintiff:

Peter J. Black and Bradley M. Henry, Meehan, Boyle, Black & Fitzgerald, Boston

Attorney for defendant:

Withheld

Other useful information:

This action was filed in Superior Court in 1995 and, when the plaintiffs prevailed against the summary judgment motions of five separate defendants, three defendants filed an interlocutory appeal. Several months after the plaintiffs won that appeal and the case was remanded for trial, the action settled.

The case arose from shootings at Bard College's Simon's Rock College in Great Barrington, on Dec. 14, 1992. Leading up to that night, Wayne Lo, a troubled student with a known history of disruptive and threatening behavior, had obtained and brought onto campus a military assault rifle

The student then used the weapon to shoot and kill two persons and severely injure four others, including the plaintiff, a Simon's Rock security guard, before surrendering to the police. Lo was later convicted of murder and sentenced to life in prison.

The plaintiff was 40 years old at the time. She worked for the security company at a small liberal arts college in Massachusetts. She was reportedly shot twice in the chest at point blank range.

The plaintiff was reportedly rushed to a hospital with two obvious gunshot entry wounds in her upper abdomen and two ragged exit wounds in her lower right torso. An exploratory laparotomy found that the bullets had pierced her liver and intestines in at least nine places and had fractured her pelvis.

After two additional surgeries, the plaintiff was discharged in a wheelchair, suffering severe post-traumatic stress disorder. After reconstructive hip surgery and additional abdominal surgeries, the plaintiff remained disabled at the time of the settlement, but was able to walk with a cane. Total medical, psychiatric and home care costs were in the $350,000 range.

Negligence claims were brought against Bard College and its administrators, for allegedly flawed safety procedures, and for failing to take reasonable steps to cope with the arrival of a suspicious package for Lo early on the day of the shooting or with anonymous death threats referring to Lo they had received later that same day.

More specifically, administrators reportedly had been aware of Lo's past misconduct, and had been aware of and, in fact, discussed at length the fact that Lo had received a suspicious package from a gun company early on the day of the shootings.

Also administrators had allegedly received an anonymous tip that Lo was planning a shooting spree on campus hours before it occurred, yet administrators reportedly failed to call the police, failed to advise campus security guards of the threat or to take other precautionary steps.

The primary defense by the college defendants was not that the administrators had reasonable policies in place or that they responded appropriately, but rather that they should be treated as immune from negligence claims under provisions of the workers compensation statute.

This defense was rejected by the court in the denial of motions for summary judgment and for reconsideration as well as in a detailed opinion from the Appeals Court affirming those denials and remanding the case for trial, the denial of a rehearing by the Appeals Court and denial of a request for further appellate review by the Supreme Judicial Court.

The underlying case also involved claims of negligence against the local gun shop that sold the Chinese military SKS assault rifle with bayonet to Lo upon his presentation of a Montana driver's license which, plaintiffs argued, violated Massachusetts law.

While Lo could have purchased such a weapon under Montana law, under Massachusetts law, Lo, a resident at Simon's Rock (a fact known to the gun seller), could not lawfully purchase such a firearm without a Firearms Identification Card, nor could he lawfully possess a firearm on a college campus.

Finally, the plaintiffs asserted negligence against a North Carolina gun shop that sold the high-speed ammunition, several high-capacity ammunition magazines ("banana clips"), a folding assault rifle stock and other items to Lo over the telephone.

The company reportedly also shipped the package overnight to Lo's college address without required proofs of residence or his lawful right to purchase such items, all of which were in alleged violation of firearms' regulations and interstate shipping regulations.

The primary defense of the gun dealers was that they could not have reasonably predicted that Lo would use the assault rifle and ammunition for criminal purposes. However, the plaintiffs argued that the potential for criminal use is the very reason that the sale of firearms, ammunition and components are highly regulated.

Summary judgment motions and motions for reconsideration by the defendants arguing that their sales were in compliance with all applicable regulations were denied by the court and were not appealed.