DEBORAH ELKINS, )

RUSSELL HAMPTON, and ) SYDNEY CROSBY as next friend of ) O.H., a minor, ) ) Appellants, ) ) No. SD36947 vs. ) ) Filed: September 21, 2021 ACADEMY I, LP, ) JOHN DOE, and NYADIA BURDEN, ) ) Respondents. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Mark A. Powell, Judge

AFFIRMED Appellants allege error in the court’s dismissal of their lawsuit against Academy I, LP, doing business as Academy Sports + Outdoors (“A cademy”), and its unknown employee, John Doe. Appellants contend they suffic iently pleaded claims for negligent entrustment and negligence per se, which are not pr eempted or precluded by the Protection of Lawful Commerce in Arms Act, 15 U.S.C . § 7901 et seq. (2018) (“PLCAA”). We affirm because Appellants have not satisfied the ir burden to show Congress intended federal firearms and ammunition statutes to create a duty enforceable in a private cause2

of action for negligence per se , and Appellants failed to allege facts that, if pro ven true, would warrant relief on a negligent entrustment cla im. Background 1 Luis Perez and Nyadia Burden went to an Academy sto re to purchase ammunition for the purpose of killing Aaron Josh Hampton. Per ez selected a box of 9mm ammunition and gave it to Burden along with cash. They walked to the front of the store, where Burden paid John Doe for the ammunition while Perez paced nearby. A few hours later, Perez intentionally shot Hampton more than 20 times, killing him. Perez used a 9mm handgun loaded with the ammu nition purchased from Academy. He was not a US citizen and was residing here illeg ally. Hampton’s family sued Academy and John Doe on negli gent entrustment and negligence per se theories. Academy moved to dismi ss Appellants’ first amended petition as prohibited by the PLCAA and for failure to state a claim upon which relief can be granted, Rule 55.27(a)(6). 2 The court granted Academy’s motion, found the cla ims against Academy and John Doe were a distinct judici al unit from a pending negligence claim against Burden, 3 and determined there was no just reason to delay e ntry of final judgment on the claims against Academy and John Doe pursuant to Rule 74.01(b). This appeal followed.

1 “‘When considering whether a petition fails to sta te a claim upon which relief can be granted, this C ourt must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and co nstrue all allegations favorably to the pleader.’” Mitchell v. Phillips , 596 S.W.3d 120, 122-23 (Mo. banc 2020) (quoting Cope v. Parson , 570 S.W.3d 579, 583 (Mo. banc 2019)). We summari ze the relevant parts of the record in accordance with this standard.

2 Rule references are to Missouri Court Rules 2020. 3 Burden was named as a Respondent in this appeal bu t has not participated. We offer no opinion on the pending claim against Burden.3 Appellate Authority Before addressing the merits of this appeal, we mus t determine whether we have jurisdiction. Wilson v. City of St. Louis , 600 S.W.3d 763, 765 (Mo. banc 2020). “‘The right to appeal is purely statutory and, where a st atute does not give a right to appeal, no right exists.’” Id. at 767 (quoting First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc. , 515 S.W.3d 219, 221). Appellants bring this appe al pursuant to the general appeal statute, § 512.020(5 ) RSMo. as updated through 2020, which provides that final judgments are appealable. The judgment in this case is not final in the sense that it resolves all claims by and against all parties, leaving nothing for future det ermination. Id. at 768. It is deemed to be final, however, because it has been certified fo r immediate appeal pursuant to Rule 74.01(b) and it disposes of a judicial unit. Id. at 769-71. The judgment here satisfies both of the Supreme Court’s definitions of a “judicial u nit” in that it disposes of all claims by Appellants against Academy and John Doe, and the re maining claim against Burden is sufficiently distinct from the dismissed claims. See id. at 771-72. We find that the circuit court did not abuse its di scretion in certifying its judgment under Rule 74.01(b) and that we have jurisdiction t o hear this appeal. E.M. by and through McInnis v. Gateway Region Young Men’s Chris tian Ass’n , 613 S.W.3d 388, 395 (Mo.App. 2020). Applicable Legal Principles
We review de novo a circuit court’s grant of a motion to dismiss. Lang v. Goldsworthy , 470 S.W.3d 748, 750 (Mo. banc 2015). We will aff irm if the motion can be sustained on any of the grounds raised in the mo tion to dismiss. Id. “A motion to dismiss for failure to state a claim o n which relief can be granted is4

solely a test of the adequacy of the petition.” Mitchell , 596 S.W.3d at 122 (quoting Cope
v. Parson , 570 S.W.3d 579, 583 (Mo. banc 2019), internal quo tation marks omitted). “In order to withstand the motion to dismiss, the p etition must invoke substantive principles of law entitling plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at t rial.” Grosshart v. Kansas City Power & Light Co. , 623 S.W.3d 160, 166 (Mo.App. 2021) (quoting Hill v. Freedman , 608 S.W.3d 650, 654 (Mo.App. 2020), internal quotat ion marks omitted). “If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim.” Id. Federal laws regulate the sale of firearms and amm unition and provide penalties for violations. In relevant part, 18 U.S.C. § 922( g) (2018) provides: “It shall be unlawful for any person . . . who, being an alien . . . is i llegally or unlawfully in the United States . . . to . . . possess . . . any firearm or ammunit ion; or to receive any firearm or ammunition . . . .” Similarly, 18 U.S.C. § 922(d) (2018) prov ides criminal liability for suppliers: “It shall be unlawful for any person to sell . . . ammu nition to any person knowing or having reasonable cause to believe that such person . . . who, being an alien . . . is illegally or unlawfully in the United States . . . .” The PLCAA limits civil actions that may be brought against sellers 4 of firearms and
ammunition. 5 “[T]he PLCAA expressly and unambiguously preempts state tort law, subject to the enumerated exceptions.” Delana v. CED Sales, Inc. , 486 S.W.3d 316, 323 (Mo. banc 2016). Our Supreme Court explained:

4 Academy is a “seller” engaged in the business of s elling ammunition in interstate commerce at the ret ail level. 15 U.S.C. § 7903(6)(C) (2018). 5 Ammunition is a “qualified product” covered by the PLCAA. 15 U.S.C. § 7903(4) (2018), incorporating the definition in 18 U.S.C. § 921(a)(17)(A) (2018).5

The PLCAA provides that a qualified civil liability action may not be brought in any Federal or State court. 15 U.S.C. section 7 902(a). All qualified civil liability actions shall be immediately dismissed by the court in which the action was brought or is currently pending. 15 U.S .C. section 7902(b). The PLCAA defines a “qualified civil liability action” as a civil action brought by any person against a seller of a qualified product for damages resulting from the criminal or unlawful misuse of a qualified prod uct by the person or a third party. 15 U.S.C. section 7903(5)(A). A qual ified product includes firearms and ammunition. 15 U.S.C. section 7903(4) . Actions based on negligence per se, negligent entrustment, and knowi ng violations of state or federal statutes related to firearms are expressly excluded from definition of a qualified civil liability action. 15 U.S.C. s ection 7903(5)(A)(ii). The net result of the foregoing provisions is that the PLCA A expressly preempts all civil actions seeking damages against sellers resul ting from the criminal or unlawful misuse of a firearm. Id. at 320–21 (internal quotation marks omitted) (footn ote omitted). Negligent Entrustment (Point I) “[N]egligent entrustment occurs when the defendant supplies a chattel to another with actual or constructive knowledge that, because of youth, inexperience or otherwise, the recipient will likely use the chattel in a mann er that will result in an unreasonable risk of physical harm.” Id. at 325 (internal quotation marks omitted). To mak e a prima facie case of negligent entrustment, a plaintiff must pro ve the following elements: (1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the entrustor knew o r had reason to know of the entrustee’s incompetence; (3) there was entrust ment of the chattel; and (4) the negligence of the entrustor concurred with the conduct of the entrustee to cause the plaintiff’s injuries. Matysyuk v. Pantyukhin , 595 S.W.3d 543, 549 (Mo.App. 2020). The PLCAA de fines “negligent entrustment” similarly. See 15 U.S.C. § 7903(5)(B) (2018). Thus, a properly pleaded negligent entrustment claim against a selle r of firearms (or in this case ammunition) is recognized in Missouri common law an d falls within the exceptions to PLCAA preemption. Delana , 486 S.W.3d at 324-26.6

The first issue is whether Appellants sufficiently alleged entrustment. They do not claim Academy transferred physical possession of th e ammunition to Perez. Rather, they allege Academy had actual or constructive knowledge that Burden was purchasing the ammunition for Perez because he selected it from th e shelf, handed it to Burden along with cash, accompanied her to the cash register, an d paced nearby while she completed the transaction. 6 “[W]hile Delana may have altered the scope of the negligent entrustment tort, it did not eliminate the fundamen tal requirement that the defendant must have ‘supplied’ a chattel to a third party who causes injury with the chattel.” Lockhart v. Carlyle , 585 S.W.3d 310, 316 (Mo.App. 2019). We are skept ical that the circumstances here amount to Academy’s entrustment or supply of ammunition to Perez. However, we need not decide that issue because Appe llants’ pleadings suffer from other deficiencies. Proof of incompetence is essential to establish li ability under a negligent entrustment theory. Matysyuk , 595 S.W.3d at 549. Appellants alleged 18 U.S.C. § 922(d) and (g) (2018) prohibit the sale of ammuniti on to Perez, thus rendering him otherwise incompetent to purchase the ammunition. Based on this alleged incompetency, Appellants then had to allege how Academy knew or h ad reason to know of Perez’s status as a non-citizen residing in the U.S. illegally or unlawfully. This is where their pleadings fail, because they again fall back on the same fact s they pleaded to establish Perez was the true purchaser, not Burden. These facts, even if t aken as true, say nothing about Perez’s

6 Appellants also mention a failed attempt to purcha se ammunition at another retailer earlier in the da y. This allegation has no relevance to the issue of ne gligent entrustment at Academy because they do not allege Academy or its employees knew or had reason to know about the prior events at a different retailer. See Rains v. Bend of the River , 124 S.W.3d 580, 597 (Tenn.App. 2003) (evidence bu yer was unsuccessful at purchasing ammunition at one retailer shortly be fore successfully purchasing at a different retaile r did not preclude summary judgment; relevant evidence wa s purchaser’s conduct or demeanor at the time of th e successful purchase).7

citizenship or if he is in the U.S. lawfully. This case differs significantly from the facts all eged in Delana , supra . In that case, a mother begged a firearm seller not to sell another gun to the mother’s daughter, who had attempted suicide with a gun she previously bought from the same merchant. Mother told the merchant that daughter was severely mentally ill and gave the merchant the daughter’s name, social security number, birthd ate, and likely time she may try to buy a gun. Two days later, the merchant chose to make the sale and daughter shot and killed her father. That is not this case. How was John D oe, as Academy’s agent, to know or have reason to know about Perez’s citizenship just by lo oking at him? By the color of his skin? Certainly not. The only behaviors Appellants allege occurred in th e presence of John Doe were Perez’s proximity to Burden and pacing. There coul d be any number of reasons for pacing, some innocent and some not. Courts in othe r states have held that a purchaser’s nervousness did not give a seller reason to know of the purchaser’s incompetence or intention to cause harm. See Drake v. Wal-Mart, Inc. , 876 P.2d 738, 741 (Okla. Civ. App. 1994) (seller could not have known gun buyer i ntended to commit suicide even though she was nervous, fidgety, had a blank look o n her face, looked troubled, and was reluctant to handle the gun); Jacoves v. United Merch. Corp. , 9 Cal.App. 4th 88, 118 (Cal.App. 1992) (seller had no reason to know buyerwas reasonably likely to commit suicide even though buyer was distraught and trembl ing); Peek v. Oshman’s Sporting Goods, Inc. , 768 S.W.2d 841, 847 (Tex.App. 1989) (seller had n o reason to anticipate buyer’s mental impairment or intent to commit a cri me despite evidence purchaser was nervous, uptight, and in a hurry). In the criminal law context, nervousness can be relevant but in and of itself does not give rise to reasonab le suspicion. State v. Goucher , 5808

S.W.3d 625, 633 (Mo.App. 2019). Even if pacing wou ld raise some suspicion, how would it give John Doe, as Academy’s agent, reason to kno w he needed to check Perez’s citizenship status? Appellants skirt this deficiency by arguing it is Academy’s duty to ensure ammunition is being sold to qualified purchasers. 7While this is true on one level, it does not avail Appellants here because the application A ppellants suggest would impermissibly shift their burden of proof. The “knew or had reas on to know” element of the claim would be eliminated and replaced with strict liability orincompetence per se. Appellants similarly failed to allege facts that, if true, showed Academy had actual or constructive knowledge Perez was likely to use t he ammunition in a manner that would result in an unreasonable risk of physical harm. Delana , 486 S.W.3d at 324. “[T]he sale of firearms and related products is legal, and thos e products are capable of being safely used for many lawful purposes, including security a nd self-defense, as well as in various sporting and recreational activities.” Noble v. Shawnee Gun Shop, Inc. , 409 S.W.3d 476, 485 (Mo.App. 2013) (abrogated in other respect s by Delana , 486 S.W.3d at 324- 26). “[A]s a general proposition, liability is not imposed on sellers of non-defective, lawful products, for injuries caused by the misuse of thos e products by the purchaser or other persons.” Id. There are exceptional cases and circumstances wher e one realizes or should realize a purchaser of goods intends to cause harm or presents an unreasonable risk of harm to others. [O]ne who supplies a chattel for the use of anotherwho knows its exact character and condition is not entitled to assume t hat the other will use it

7 “Here, the negligent conduct was the failure of th e Respondents to confirm that the recipient of the ammunition was qualified to purchase the same . . . .”9

safely if the supplier knows or has reason to know that such other is likely to use it dangerously, as where the other belongs t o a class which is notoriously incompetent to use the chattel safely, or lacks the training and experience necessary for such use, or the supplier knows that the other has on other occasions so acted that the supplier shoul d realize that the chattel is likely to be dangerously used, or that the other , though otherwise capable of using the chattel safely, has a propensity or fi xed purpose to misuse it. This is true even though the chattel is in perfect condition[.] Restatement (Second) of Torts § 390 cmt. b (1965). Here, there is no allegation Academy or John Doe ha d any prior interactions with Perez or forewarning about his intended use for the ammunition. See Delana , supra . There are no allegations of apparent physical chara cteristics, such as youth or immaturity, that suggested a likelihood of misuse and injury. See Bosserman v. Smith , 226 S.W. 608 (Mo.App. 1920) (merchant liable for injuries to 8-year-old child to whom merchant sold dangerous fireworks). There is no allegation Perez was visibly intoxicated. See Kitchen v. K-Mart Corp. , 697 So. 2d 1200 (Fla. 1997). Appellants contend Academy knew or should have know n Perez was likely to use the ammunition in a manner that would cause unreaso nable risk of physical harm as evidenced by his pacing and the decision to make th e purchase through Burden. Federal law prohibits firearm sales by way of a straw-purchaser. See Abramski v. U.S. , 573 U.S. 169 (2014) (detailing steps and forms used in firearm sale and holding that criminal liability may apply even if the straw-purchaser and the intended recipient both were legally qualified to purchase the firearm). As Aca demy notes, the photo ID, Form 4473, and NICS background check requirements apply only t o sales of firearms , not ammunition. Appellants have not provided and we ar e not aware of any federal or state law that prohibits the purchase of ammunition for a nother person. We cannot conclude that Academy and its agents knew or should have kno wn of Perez’s intention to harm10

Hampton with the ammunition given that Burden raise d no suspicion, nervous actions similar to Perez’s have been held not to put a sell er on notice of a problem, and the use of a third-party purchaser (assuming such was known or should have been known to John Doe) is a lawful action. The allegations in Appellant’s petition, even if pr oven true, would not show that Academy knew or should have known that Perez was a non-U.S. citizen in the U.S. illegally or unlawfully, or that he was likely to use the amm unition in a manner that would cause unreasonable risk of physical harm. Appellants fai led to state a claim for negligent entrustment. Point I is denied. Negligence Per Se (Point II) Missouri courts recognize negligence per se as a ca use of action. See Parr v. Breeden , 489 S.W.3d 774, 781 (Mo. banc 2016). It is a for m of ordinary negligence that results from the violation of a statute. Lowdermilk v. Vescovo Bldg. and Realty Co., Inc. , 91 S.W.3d 617, 628 (Mo.App. 2002) (internal quota tion marks omitted) (as adopted and reinstated after retransfer Jan. 9, 200 3). “As with all negligence claims, the threshold question is whether the defendant owed th e injured party a duty of care.” O.L.
v. R.L. , 62 S.W.3d 469, 474 (Mo.App. 2001). “Whether a pe rsonal duty exists depends on the particular facts and circumstances of each c ase.” Parr , 489 S.W.3d at 782. Negligence per se differs from ordinary negligence in that it presumes someone who violates a statute has breached what the legisl ature had already determined to be the standard of care for a reasonable person in those c ircumstances. Goudeaux v. Bd. of Police Com’rs of Kansas City , 409 S.W.3d 508, 512 (Mo.App. 2013). But not ever y statutory violation establishes a duty of care the violation of which is actionable in a negligence per se claim. The plaintiff must show, as a matter of law, that the defendant11

owed a duty of care to the plaintiff. Parr , 489 S.W.3d at 782. Missouri follows the “no duty” rule: a business ge nerally has no duty to protect against criminal acts of third parties. Wieland v. Owner-Operator Services, Inc. , 540 S.W.3d 845, 848 (Mo. banc 2018); K.L.S. v. Union Pac. R.R. , 575 S.W.3d 259, 265 (Mo.App. 2019). There are two categories of ex ceptions to the general rule. The first category involves a special relationship between th e parties, where one party is entrusted to the protection of another and relies on that par ty for safety. Knop v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist. , 988 S.W.2d 586, 589 (Mo.App. 1999). The second category is “special facts and circumsta nces,” such as when a business knows or has reason to know the third person is harming o r about to harm an invitee on the business’s premises. Wieland , 540 S.W.3d at 848-49. Appellant did not claim an y of these exceptions apply in this case. Thus, it was incumbent upon Appellant to plead, as a matter of law based on the facts and circumstances of the case, that a statute created a duty of care Academy owed personally to Hampton. See Parr , 489 S.W.3d at 781-82 (summary judgment properly entered against plaintif f because federal safety rules on which plaintiff relied did not impose personal duty on co-worker separate and distinct from employer’s nondelegable duty to provide a safe workplace). Appellants rely on Academy’s alleged violation of 1 8 U.S.C. § 922(d)(5) (2018), the sale of ammunition to a non-U.S. citizen who is ill egally or unlawfully in the U.S. “Before we reach the question of a violation, we must first examine the statute itself to determine if it is a statute on which negligence per se may b e premised.” Lowdermilk , 91 S.W.3d
at 628. Here, nothing in the text or history of § 922 evide nces an express or implied intent to create a private, civil liability action premise d on failure to comply with this statute.12

Section 922 is a criminal statute. It is located i n Title 18, entitled “Crimes and Criminal Procedure.” It was enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968 and was amended by the Gun Control Act of 1968

. Estate of Pemberton v. John’s Sports Ctr., Inc. , 135 P.3d 174, 181 (Kan.App. 2006). Congress’s fo cus was on protecting the public in general from gun crime and violence at the hands of felons and irresponsible persons. Id. Furthermore, the remedy for violation of the statut e is criminal: whoever knowingly violates § 922(d) is subject to a fine, i mprisonment, or both. 18 U.S.C. § 924(2) (2018). “In general, when a statute includes measu res establishing enforcement of its provisions, courts will not recognize a private rig ht of action for the violation of that statute, except where the statute indicates legisla tive intent to establish a private cause of action.” Parke v. Progressive Cas. Ins. Co. , 613 S.W.3d 428, 431–32 (Mo.App. 2020). Congress has expressed its intent for civil suits a gainst firearm and ammunition sellers in the PLCAA. “A qualified civil liability action may not be brought in any Federal or State court.” 15 U.S.C. § 7902(a) (2018). A “q ualified civil liability action” does not include “an action brought against a seller for neg ligent entrustment or negligence per se.” 15 U.S.C. § 7903(5)(A)(ii) (2018). This mean s the PLCAA exempts such claims from mandatory dismissal under federal law. Noble , 409 S.W.3d at 480. The PLCAA does not, however, affirmatively authorize or establish such claims. Id. Private rights of action to enforce federal law mus t be created by Congress. Id. (citing Alexander v. Sandoval , 532 U.S. 275, 286-87 (2001)). We must determine whether a statute displays Congress’s intent to cre ate both a private right and a private remedy. Id. In the absence of such intent, “a cause of action does not exist and courts13

may not create one, no matter how desirable that mi ght be as a policy matter, or how compatible with the statute.” Id. at 480-81. In Missouri law, the creation of a pri vate right of action by implication is not favored. Bradley v. Ray , 904 S.W.2d 302, 313-14 (Mo.App. 1995). Congress enacted the PLCAA to prevent “the possibi lity of imposing liability on an entire industry for harm that is solely caused by o thers[,]” referring to such suits as “an abuse of the legal system.” Delana , 486 S.W.3d at 322 (citing 15 U.S.C. § 7901(a)(6))

. The general purpose of the statute is to prohibit c auses of action against dealers of firearms and ammunition for the harm caused by the criminal or unlawful misuse of firearm products when the products functioned as de signed and intended. Id. (citing 15 U.S.C. § 7901(b)(1)). Section 7903(5), which both defines a qualified civil liability action and exempts negligent entrustment and negligence pe r se actions therefrom, expressly states: “[N]o provision of this [Act] shall be cons trued to create a public or private cause of action or remedy.” 15 U.S.C. § 7903(5)(C) (2018 ). This express negation of private right or remedy is dispositive. Noble , 409 S.W.3d at 480. Appellants cannot rely on federal criminal statutes related to the sale of fi rearms and ammunition as establishing a duty or standard of care for a negligence per se cl aim in Missouri’s state courts. Because the PLCAA precludes 18 U.S.C. § 922(d) (20 18) from serving as the statutory duty or standard of care in this cause of action and Appellants have alleged no other statutory duty that Academy violated, the cir cuit court was required to dismiss Appellants’ negligence per se claim. Point II is d enied. Conclusion While Appellants’ claims may not have been preclude d by the Protection of Lawful Commerce in Arms Act, Appellants have failed to all ege a viable cause of action under14

Missouri law against John Doe or Academy based on t he sale of ammunition for injuries caused by Luis Perez. Id. at 485. The circuit court did not err in dismissi ng their claims. Judgment affirmed.

JACK A. L. GOODMAN, J. – OPINION AUTHOR WILLIAM W. FRANCIS, JR., P.J. – CONCURS JEFFERY W. BATES, J. – CONCURS