MARK HADDAD V GEORGE TSOUKLAS
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STATE OF MICHIGAN
COURT OF APPEALS
MARK HADDAD,
UNPUBLISHED
January 12, 2006
Plaintiff-Appellant,
v
No. 256659
Wayne Circuit Court
LC No. 02-243629-NO
GEORGE TSOUKALAS,
Defendant-Appellee,
and
ALEXANDER HARLAMBOS SAKELLARIS and
ALEXANDRA SAKELLARIS,
Defendants.
Before: Donofrio, P.J., and Borrello and Davis, JJ.
PER CURIAM.
Plaintiff appeals as of right the February 10, 2004, order dismissing his cause of action
against defendant, George Tsoukalas. Specifically, plaintiff challenges the grant of summary
disposition on his claim of negligent entrustment. Because plaintiff has plead and created a
justiciable question of fact on his theory of defendant’s negligent entrustment of his registered
Smith and Wesson .357 Magnum revolver to Alexander Sakellaris, we reverse and remand to the
trial court.1
During the evening of January 11, 2002, plaintiff and friends visited with Sakellaris in the
basement of his home. After a short while, Sakellaris produced the revolver to, “handle it and
show it off.” He opened the chamber, removed one of the bullets and announced that it was a
hollow point, replaced the bullet, and then spun the cylinder “like a toy.” The gun did not have a
trigger lock in place. As Sakellaris ascended the basement stairs with the gun in his left hand he
tripped, fell, and dislodged the banister, all of which resulted in an accidental discharge of the
firearm. Plaintiff was shot in the knee.
1
Plaintiff’s claims against the other named defendants were dismissed without prejudice.
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The revolver was registered to defendant. Sakellaris reported to the police that he was
keeping the handgun for his defendant cousin whose parents would not permit him to maintain
the gun in their home. When the police investigated, they found the handgun in the trunk of
Sakellaris’ vehicle in a case, unloaded, and secured with a trigger lock. When defendant was
interviewed by the police he reported he had purchased the handgun along with a holster. Police
questioned defendant further when they noted the holster purchased for use with the handgun
was for a left-handed individual and defendant is right-handed and Sakellaris is left-handed.
When questioned regarding this observation, defendant acknowledged that he and Sakellaris had
gone to purchase the handgun and that it was Sakellaris who provided the monies for the
purchase. Defendant stated that it was their intent, at some point in the future, to turn ownership
of the handgun over to Sakellaris.
When Sakellaris was reinterviewed he acknowledged that he had accompanied defendant
to purchase the gun and that he had requested defendant purchase the handgun, with the intent
that when Sakellaris turned eighteen, the gun would be transferred and registered in his name.
Sakellaris reported that defendant purchased the gun for him, but that defendant registered the
handgun in his own name and took it home. Defendant’s father discovered a bullet for the
handgun in their home and instructed defendant to remove the gun from the home. Defendant
took it with a trigger lock in place to Sakellaris to retain. Defendant reported to police that he
did not give Sakellaris any ammunition with the handgun. Sakellaris and defendant took the gun
to a shooting range on two or three occasions. After shooting, Sakellaris would clean the gun
and replace the trigger lock. Defendant asserted that he permitted Sakellaris to store the handgun
based on his “superior knowledge” of weapons and his experience with guns.
Prior to this incident, Sakellaris was reported to have had several contacts with police as a
juvenile, including incurring speeding tickets, breaking and entering and probation violations.
Defendant contended that he was unaware of any criminal history or police involvement with
Sakellaris before this event.
Below, plaintiff contended defendant’s assertion that Sakellaris had been trained and was
knowledgeable in the use of firearms was uncorroborated. Plaintiff also asserted Sakellaris’
history of juvenile problems, at school and with police, verified his immaturity and his
incompetence to possess a handgun. Further, that Sakellaris’ possession of the handgun was
illegal due to his age, and that the handgun could not have been legally transferred from
defendant to Sakellaris until he turned eighteen. The handgun purchase was described as an
illegal “strawman” purchase, involving the legitimate purchase of the handgun by defendant with
the illegal transfer of the weapon to Sakellaris, without proper registration or transfer paperwork.
On appeal, plaintiff argues the trial court erred in granting summary disposition in favor
of defendant on his claim of negligent entrustment. The tort of negligent entrustment is
comprised of two elements:
First, the entrustor is negligent in entrusting the instrumentality to the entrustee.
Second, the entrustee must negligently or recklessly misuse the instrumentality.
[Allstate Ins Co v Freeman, 160 Mich App 349, 357; 408 NW2d 153 (1987).]
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The doctrine of negligent entrustment essentially comprises a determination of whether an
individual’s conduct was reasonable in view of the apparent risk involved. Bragan v Symanzik,
263 Mich App 324, 341; 687 NW2d 881 (2004) (Murphy, J., concurring.)
Originally, this Court, in Muscat v Khalil, 150 Mich App 114, 121; 388 NW2d 267
(1986), discussed the law of negligent entrustment, indicating:
Michigan courts have adopted the following definition of the theory from 2
Restatement Torts, 2d, § 392:
‘One who supplies directly or through a third person a chattel for the use of
another whom the supplier knows or has reason to know to be likely because of
his youth, inexperience, or otherwise, to use it in a manner involving
unreasonable risk of physical harm to himself and others whom the supplier
should expect to share in or be endangered by its use, is subject to liability for
physical harm resulting to them.’ Moning v Alfono, 400 Mich 425, 443-444; 254
NW2d 759 (1977).
Subsequently, the Michigan Supreme Court, in Fredericks v General Motors, 411 Mich 712,
719; 311 NW2d 725 (1981), clarified the applicable standard of care determining that:
To sustain a cause of action for negligent entrustment a plaintiff must prove that
defendant knew or should have known of the unreasonable risk propensities of the
entrustee.
***
To prove an entrustor should have known an entrustee was likely to use the
entrusted chattel in an unsafe manner, peculiarities of the entrustee sufficient to
put the entrustor on notice of that likelihood must be demonstrated.
This was further refined in Buschlen v Ford Motor Co (On Remand), 121 Mich App 113, 117;
328 NW2d 592 (1982), where this Court indicated that to prove negligent entrustment:
[P]laintiffs must show either that defendant knew the entrustee was not to be
entrusted or that defendant ‘had special knowledge of (the entrustee) which would
put defendant on notice.’
The Fredericks Court did not recognize a duty to inquire, on the part of the entrustor, to
ensure that the chattel being entrusted was being used in a safe manner. Instead:
[T]he entrustor must first have special notice of the peculiarities of the entrustee
sufficient to put the entrustor on notice before the entrustor is under any further
duty to ensure an entrusted chattel’s safe use. [Buschlen, supra, p 118.]
Additionally, an essential element of negligent entrustment involving “inherently dangerous
materials” involves “the failure of the principal to see that all appropriate precautions are taken
to insure that the inherently dangerous activity will be properly performed.” Beck v Westphal,
141 Mich App 136, 145; 366 NW2d 217 (1984).
-3-
Contrary to plaintiff’s assertion in the lower court, Sakellaris’ youth was not sufficient, in
and of itself, to impose liability for negligent entrustment. However, age did function as a
“peculiarity” sufficient to place defendant on notice that the handgun could be misused or
handled in an unsafe manner. As noted previously by this Court, the entrustment of a potentially
dangerous article to an underage or young individual:
[M]ay pose an unreasonable risk of harm not only because the child may not
appreciate the risk or may not have the skill to use the article safely but—even if
he does appreciate the risk and does have the requisite skill—because he may
recklessly ignore the risk and use the article frivolously due to immaturity of
judgment, exuberance of spirit, or sheer bravado. [Bragan, supra, p 341 (Murphy,
J., concurring) (citations omitted).]
Thus, based on Sakellaris’ youth, defendant was placed on notice requiring either the taking of
sufficient precautions before entrusting the handgun or the necessity of further investigation
regarding Sakellaris’ competency to possess the weapon. This is especially true given
defendant’s knowledge that the handgun was required to be registered and that Sakellaris, based
on age, was ineligible to possess the weapon. While defendant claimed that he provided a trigger
lock for the handgun, the question of access to the key is conspicuously absent. When police
recovered the handgun from Sakellaris the trigger lock was in place.
The trial court erred in granting summary disposition because questions of fact existed
regarding defendant’s knowledge of factors pertaining to Sakellaris’ history with police, in
addition to his age, which put defendant on notice of the potential for Sakellaris to mishandle the
firearm. Questions of fact also existed regarding whether defendant had exercised sufficient and
reasonable precautions prior to entrusting the weapon to Sakellaris. As such, it was in the
province of the jury to determine whether defendant’s entrustment of the weapon to Sakellaris
was negligent.
We reverse the grant of summary disposition and remand to the trial court for submission
of the issue of negligent entrustment to a jury. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ Stephen L. Borrello
/s/ Alton T. Davis
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