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 (“Academy”), and its unknown 

employee, John Doe. Appellants contend they sufficiently pleaded claims for negligent 

entrustment and negligence per se, which are not preempted 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 their burden to show Congress intended 

federal firearms and ammunition statutes to create a duty enforceable in a private cause 
2 

of action for negligence per se, and Appellants failed to allege facts that, if proven true, 

would warrant relief on a negligent entrustment claim. 

Background1

Luis Perez and Nyadia Burden went to an Academy store to purchase ammunition 

for the purpose of killing Aaron Josh Hampton. Perez 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 ammunition purchased from Academy. 

He was not a US citizen and was residing here illegally. 

Hampton’s family sued Academy and John Doe on negligent entrustment and 

negligence per se theories. Academy moved to dismiss 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 claims 

against Academy and John Doe were a distinct judicial unit from a pending negligence 

claim against Burden,3 and determined there was no just reason to delay entry 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 state a claim upon which relief can be granted, this Court 

must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe 

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 summarize 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 but has not participated. We offer no opinion on the

pending claim against Burden. 
3 

Appellate Authority 

Before addressing the merits of this appeal, we must 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 statute 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 appeal 

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 determination. Id. at 768. It is deemed to 

be final, however, because it has been certified for 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 unit” in that it disposes of all claims by 

Appellants against Academy and John Doe, and the remaining 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 discretion in certifying its judgment 

under Rule 74.01(b) and that we have jurisdiction to hear this appeal. E.M. by and 

through McInnis v. Gateway Region Young Men’s Christian 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 affirm if the motion can 

be sustained on any of the grounds raised in the motion to dismiss. Id.

“A motion to dismiss for failure to state a claim on which relief can be granted is 
4 

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 quotation marks omitted). 

“In order to withstand the motion to dismiss, the petition 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 trial.” 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 quotation 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 ammunition 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 illegally or unlawfully in the United States 

. . . to . . . possess . . . any firearm or ammunition; or to receive any firearm or ammunition 

. . . .” Similarly, 18 U.S.C. § 922(d) (2018) provides criminal liability for suppliers: “It 

shall be unlawful for any person to sell . . . ammunition 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 sellers4 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 selling ammunition in interstate commerce at the retail 

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 7902(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 product by the person or a 

third party. 15 U.S.C. section 7903(5)(A). A qualified product includes 

firearms and ammunition. 15 U.S.C. section 7903(4). Actions based on 

negligence per se, negligent entrustment, and knowing violations of state or 

federal statutes related to firearms are expressly excluded from definition 

of a qualified civil liability action. 15 U.S.C. section 7903(5)(A)(ii). The net 

result of the foregoing provisions is that the PLCAA expressly preempts all 

civil actions seeking damages against sellers resulting from the criminal or 

unlawful misuse of a firearm. 

Id. at 320–21 (internal quotation marks omitted) (footnote 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 manner that will result in an unreasonable risk 

of physical harm.” Id. at 325 (internal quotation marks omitted). To make a prima facie 

case of negligent entrustment, a plaintiff must prove the following elements: 

(1) the entrustee was incompetent by reason of age, inexperience, habitual 

recklessness or otherwise; (2) the entrustor knew or had reason to know of 

the entrustee’s incompetence; (3) there was entrustment 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 defines 

“negligent entrustment” similarly. See 15 U.S.C. § 7903(5)(B) (2018). Thus, a properly 

pleaded negligent entrustment claim against a seller of firearms (or in this case 

ammunition) is recognized in Missouri common law and 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 the 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 the shelf, handed it to Burden along 

with cash, accompanied her to the cash register, and 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 fundamental 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 skeptical that the 

circumstances here amount to Academy’s entrustment or supply of ammunition to Perez. 

However, we need not decide that issue because Appellants’ pleadings suffer from other 

deficiencies. 

 Proof of incompetence is essential to establish liability 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 ammunition 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 had 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 facts they pleaded to establish Perez was the 

true purchaser, not Burden. These facts, even if taken as true, say nothing about Perez’s 

 

6 Appellants also mention a failed attempt to purchase ammunition at another retailer earlier in the day. 

This allegation has no relevance to the issue of negligent 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 buyer was unsuccessful 

at purchasing ammunition at one retailer shortly before successfully purchasing at a different retailer did 

not preclude summary judgment; relevant evidence was purchaser’s conduct or demeanor at the time of the 

successful purchase).
7 

citizenship or if he is in the U.S. lawfully. 

 This case differs significantly from the facts alleged 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, birthdate, 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 Doe, as Academy’s agent, to know or have 

reason to know about Perez’s citizenship just by looking at him? By the color of his skin? 

Certainly not. 

The only behaviors Appellants allege occurred in the presence of John Doe were 

Perez’s proximity to Burden and pacing. There could be any number of reasons for 

pacing, some innocent and some not. Courts in other 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 intended to commit suicide even 

though she was nervous, fidgety, had a blank look on 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 buyer was reasonably likely to commit 

suicide even though buyer was distraught and trembling); Peek v. Oshman’s Sporting 

Goods, Inc., 768 S.W.2d 841, 847 (Tex.App. 1989) (seller had no reason to anticipate 

buyer’s mental impairment or intent to commit a crime 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 reasonable suspicion. State v. Goucher, 580 
8 

S.W.3d 625, 633 (Mo.App. 2019). Even if pacing would raise some suspicion, how would 

it give John Doe, as Academy’s agent, reason to know 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.7 While this is true on one level, it does 

not avail Appellants here because the application Appellants suggest would impermissibly 

shift their burden of proof. The “knew or had reason to know” element of the claim would 

be eliminated and replaced with strict liability or incompetence per se. 

 Appellants similarly failed to allege facts that, if true, showed Academy had actual 

or constructive knowledge Perez was likely to use the 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 those products are capable of being safely 

used for many lawful purposes, including security and 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 respects 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 those products by the purchaser or other 

persons.” Id.

 There are exceptional cases and circumstances where 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 another who knows its exact 

character and condition is not entitled to assume that the other will use it 

 

7

 “Here, the negligent conduct was the failure of the 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 to 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 should 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 fixed 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 had any prior interactions with 

Perez or forewarning about his intended use for the ammunition. See Delana, supra. 

There are no allegations of apparent physical characteristics, 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 known Perez was likely to use 

the ammunition in a manner that would cause unreasonable risk of physical harm as 

evidenced by his pacing and the decision to make the 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 Academy notes, the photo ID, Form 4473, 

and NICS background check requirements apply only to sales of firearms, not 

ammunition. Appellants have not provided and we are not aware of any federal or state 

law that prohibits the purchase of ammunition for another person. We cannot conclude 

that Academy and its agents knew or should have known of Perez’s intention to harm 
10 

Hampton with the ammunition given that Burden raised no suspicion, nervous actions 

similar to Perez’s have been held not to put a seller 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 proven 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 ammunition in a manner that would cause 

unreasonable risk of physical harm. Appellants failed to state a claim for negligent 

entrustment. Point I is denied. 

Negligence Per Se (Point II) 

Missouri courts recognize negligence per se as a cause of action. See Parr v. 

Breeden, 489 S.W.3d 774, 781 (Mo. banc 2016). It is a form 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 quotation marks omitted) (as 

adopted and reinstated after retransfer Jan. 9, 2003). “As with all negligence claims, the 

threshold question is whether the defendant owed the injured party a duty of care.” O.L. 

v. R.L., 62 S.W.3d 469, 474 (Mo.App. 2001). “Whether a personal duty exists depends 

on the particular facts and circumstances of each case.” 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 legislature had already determined to be the 

standard of care for a reasonable person in those circumstances. Goudeaux v. Bd. of 

Police Com’rs of Kansas City, 409 S.W.3d 508, 512 (Mo.App. 2013). But not every 

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 defendant 
11 

owed a duty of care to the plaintiff. Parr, 489 S.W.3d at 782. 

Missouri follows the “no duty” rule: a business generally 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 exceptions to the general rule. The first 

category involves a special relationship between the parties, where one party is entrusted 

to the protection of another and relies on that party 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 circumstances,” such as when a business knows 

or has reason to know the third person is harming or about to harm an invitee on the 

business’s premises. Wieland, 540 S.W.3d at 848-49. Appellant did not claim any 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 plaintiff 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 18 U.S.C. § 922(d)(5) (2018), the 

sale of ammunition to a non-U.S. citizen who is illegally 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 be premised.” Lowdermilk, 91 S.W.3d 

at 628. 

Here, nothing in the text or history of § 922 evidences an express or implied intent 

to create a private, civil liability action premised on failure to comply with this statute. 
12 

Section 922 is a criminal statute. It is located in 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 focus 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 statute is criminal: whoever 

knowingly violates § 922(d) is subject to a fine, imprisonment, or both. 18 U.S.C. § 924(2) 

(2018). “In general, when a statute includes measures establishing enforcement of its 

provisions, courts will not recognize a private right of action for the violation of that 

statute, except where the statute indicates legislative 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 against 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 “qualified civil liability action” does not 

include “an action brought against a seller for negligent entrustment or negligence per 

se.” 15 U.S.C. § 7903(5)(A)(ii) (2018). This means 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 must 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 create both a private right and a private 

remedy. Id. In the absence of such intent, “a cause of action does not exist and courts 
13 

may not create one, no matter how desirable that might be as a policy matter, or how 

compatible with the statute.” Id. at 480-81. In Missouri law, the creation of a private 

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 possibility of imposing liability on an 

entire industry for harm that is solely caused by others[,]” 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 causes 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 designed 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 per se actions therefrom, expressly 

states: “[N]o provision of this [Act] shall be construed 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 firearms and ammunition as establishing a 

duty or standard of care for a negligence per se claim in Missouri’s state courts. 

 Because the PLCAA precludes 18 U.S.C. § 922(d) (2018) 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 circuit court was required to dismiss 

Appellants’ negligence per se claim. Point II is denied. 

Conclusion 

While Appellants’ claims may not have been precluded by the Protection of Lawful 

Commerce in Arms Act, Appellants have failed to allege a viable cause of action under 
14 

Missouri law against John Doe or Academy based on the sale of ammunition for injuries 

caused by Luis Perez. Id. at 485. The circuit court did not err in dismissing their claims. 

Judgment affirmed. 

JACK A. L. GOODMAN, J. – OPINION AUTHOR 

WILLIAM W. FRANCIS, JR., P.J. – CONCURS 

JEFFERY W. BATES, J. – CONCURS