* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 3 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JOHN WOODWARD, as Administrator of the Estate of Heather Rose Rich, deceased,

Plaintiff-Appellant,

v. CAROLYN BEAVER, individually; BEAVER LUMBER & PLUMBING INC., an Oklahoma corporation,

Defendants-Appellees. No. 99-6238 (D.C. No. 98-CV-1383-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

On October 3, 1996, Heather Rose Rich was kidnappedand murdered. Joshua Bagwell, Curtis Gambill, and Randy Wood were convicted of the murder and are currently serving life sentences. Defendan t Carolyn Beaver is the Vice-President of defendant Beaver Lumber, and on O ctober 1, 1996, she delivered shotgun ammunition to Bagwell and Gambill . She sold the ammunition on account to Bagwell’s grandparents after Bagwell’ s mother had given Carolyn Beaver permission to deliver ammunition to Bagwell, who was a minor. Plaintiff, Heather Rich’s father and the administrator of her estate, brought this diversity action for wrongful death, alleging that Carolyn Be aver negligently delivered and/or sold the ammunition to Bagwell and/or Gambil l and that Beaver’s negligence was the proximate cause of Heather Rich’ s death. On May 13, 1999, the district court denied plaintif f’s motion for partial summary judgment, which sought a ruling as a matterof law that Beaver violated an Oklahoma statute making it unlawful to sell cert ain arms or weapons to a minor. In denying the motion, the district courtfound that the shotgun ammunition Beaver delivered to Bagwell and Gambill was not an “offensive weapon” within the meaning of Okla. Stat. tit. 21, § 1272. Consequently, the district court found that Beaver did not violate Ok la. Stat. tit. 21, § 1273, which makes it unlawful to sell or give a minor a w eapon designated in § 1272. That ruling foreclosed plaintiff’s strict liability argument. On May 21, 1999, the-3-

district court granted defendants’ summary judgmentmotion. The court found that there was no genuine issue as to any material fact that Beaver’s delivery of the ammunition to Bagwell and Gambill was not the p roximate cause of Heather Rich’s death. In reaching that conclusion, the dis trict court found, as a matter of law, that there was no evidence that Beaver should have foreseen that Bagwell and Gambill would use the ammunition to murder Heather Rich and that the criminal act of murder was the supervening cause of Heather Rich’s death. We review the district court’s grant or denial of summary judgment de novo to determine if there is a genuine issue as to any material fact and whether defendants are entitled to judgment as a matter of law. See Mann v. United States , 204 F.3d 1012, 1015 (10th Cir. 2000). In making this determination, we view the evidence in the light most favorable to plaintiff and draw any inferences in his favor. See id . Because our jurisdiction is based on diversity, we apply Oklahoma law to the substantive issues raised on appeal. See Boyd Rosene & Assocs., Inc. , 174 F.3d 1115, 1118 (10th Cir. 1999)

. This case solely involves questions of Oklahoma state law. We agree with the district court that the ammunitio n delivered by Beaver to Bagwell is not an offensive weapon within the meani ng of Okla. Stat. tit. 21, § 1273. The district court’s analysis on this poin t is thorough and well-reasoned, and any analysis we could make would be redundant. Therefore, we affirm the-4-

district court’s denial of plaintiff’s motion for p artial summary judgment on the statutory question for substantially the same reaso ns stated in the district court’s order dated May 13, 1999. We also agree with the district court’s ruling as amatter of law on the Oklahoma state law issue of negligence. Again, the district court’s opinion on this issue is thorough and well-reasoned, and we af firm the grant of summary judgment in favor of defendants on the state law ne gligence issue for substantially the reasons stated by the district court in its ord er dated May 21, 1999. AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge