Opinion

Rubin v. Johnson

  • 550 N.E.2d 324
  • 1990 Ind. App. LEXIS 157
  • 1990 WL 15636
Court
Indiana Court of Appeals
Filed
Feb 19, 1990
Status
Published
Author
Baker
On the bench
Ratliff, Robertson, Baker
Cited by
52 cases
Authority
More cited than 9.1%

denying the defendant gun seller’s motion for summary judgment on the plaintiffs wrongful death action, in which the plaintiff alleged that defendant Rubin knowingly transferred, a firearm to a person who Rubin knew or reasonably should have, known was of unsound mind, holding that Rubin’s *952 argument that the shooter’s act constituted an intervening criminal act which should relieve him of any liability is erroneous and that “because the criminal, irresponsible, and unpredictable use of handguns is the very risk sought to be avoided under I.C. 35-47-2-7. [which prohibits sales or transfers of firearms to certain individuals], the realization of this risk cannot stand as a bar to recovery”

How later courts described this case

  • denying the defendant gun seller’s motion for summary judgment on the plaintiffs wrongful death action, in which the plaintiff alleged that defendant Rubin knowingly transferred, a firearm to a person who Rubin knew or reasonably should have, known was of unsound mind, holding that Rubin’s *952 argument that the shooter’s act constituted an intervening criminal act which should relieve him of any liability is erroneous and that “because the criminal, irresponsible, and unpredictable use of handguns is the very risk sought to be avoided under I.C. 35-47-2-7. [which prohibits sales or transfers of firearms to certain individuals], the realization of this risk cannot stand as a bar to recovery”
  • where purchaser killed third party, intervening criminal act did not relieve de fendant of liability
  • where state firearms statute is enacted to ensure the safety of others, its violation constitutes negligence per se
  • assertions of legal conclusions in an affidavit are insufficient under Trial Rule 56(E)

Written by the judges who cited it.

The opinion

BAKER, Judge,

concurring.

While I concur in the result reached by the majority, I do not believe that all of paragraphs 25 through 81 of Looney's affidavit would be admissible, either for the purposes of considering the summary judgment motion or subsequently at trial. As noted by the majority, an expert may form an opinion based upon hearsay. However, the expert's opinion may not relate to matters on which he has not been qualified as an expert. Paragraphs 25, 28, and 31 are inadmissible because each state a conclusion about Johnson's state of mind. Although a lay opinion may generally be offered concerning another's sanity, Guardianship of Carrico v. Bennett (1974), 162 Ind.App. 330, 331 , 319 N.E.2d 625, 627 , the same must be based upon personal knowledge when contained in an affidavit used for summary judgment purposes. French v. Hickman Moving & Storage (1980), Ind.App., 400 N.E.2d 1384, 1387 . Looney did not observe Johnson and therefore, had no personal knowledge of Johnson's sanity.

Ind. Trial Rule 56(E) requires that any affidavit in support of or in opposition to a motion for summary judgment must be based upon personal knowledge and "show affirmatively that the affiant is competent to testify about the matters stated therein."" There is nothing in the affidavit to show that Looney has the qualifications to testify as an expert witness on the mental state of another person. However, I share the majority's opinion that Looney's expertise and his assertions in paragraph 26, 27, and 30 preclude Rubin's requested summary judgment, and I also would affirm the trial court's denial of the same.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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