in Re Academy, Ltd. D/B/A Academy Sports + Outdoors

IN THE SUPREME COURT OF TEXAS ══════════ No. 19-0497 ══════════ IN RE ACADEMY, LTD. D/B/A ACADEMY SPORTS + OUTDOORS ══════════════════════════════════════════ ON PETITION FOR WRIT OF MANDAMUS ══════════════════════════════════════════ JUSTICE BOYD, concurring.

After Congress passed the federal Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, the National Rifle Association praised it as “the most significant piece of pro-gun legislation in twenty years.” 1 Not surprisingly, others criticized it as bad legislation “based on flawed reasoning” 2 and as “a political stunt meant to assuage the concerns of those on both sides of the gun debate without actually doing anything of substance.” 3 Whatever one’s policy views may be, and whatever effect the PLCAA may (or may not) have on current issues of gun rights and gun violence, our obligation as Texas’s civil court of last resort is simply to construe and apply the Act correctly.

For the reasons the Court explains, I agree that the PLCAA bars the plaintiffs’ claims in this case for negligence, negligent hiring, training, and/or supervision, and gross negligence. But I do not agree that the Act bars the plaintiffs’ claim for negligent entrustment. To the contrary, the Act expressly excepts negligent-entrustment claims from the bar it otherwise imposes. The Court holds that the Act bars the negligent-entrustment claim because that claim is not viable under Texas law. Ante at ___. In its view, Texas common law determines whether the PLCAA’s exception applies. Ante at ___. But our precedent and the Act itself require us to apply the Act’s own language, not Texas common law, to determine whether the Act’s exception applies. The Act defines the claims it prohibits, provides an exception from that prohibition for “negligent entrustment” claims, expressly defines “negligent entrustment,” and refuses to create a federal cause of action for negligent entrustment. Because the negligent-entrustment claim the plaintiffs assert in this case matches the Act’s definition of “negligent entrustment,” the claim falls within the Act’s exception and the Act does not bar the claim.

Nevertheless, I concur in the Court’s judgment because Texas law does not recognize the negligent-entrustment claim the plaintiffs have asserted. That claim falls squarely within the PLCAA’s definition of (and exception for) negligent entrustment, so the PLCAA does not bar it, but it fails because Texas law does not recognize it and the PLCAA does not authorize it. The claim must be dismissed under Texas law, but not because the PLCAA bars it.

I.

The PLCAA The PLCAA bluntly prohibits any “qualified civil liability action” against a seller or manufacturer, in which a claimant seeks relief for harm resulting from a third party’s unlawful misuse of a firearm or ammunition. 4 15 U.S.C. §§ 7902(a), 7903(5)(A). But it expressly excludes actions “against a seller for negligent entrustment” from the phrase “qualified civil liability action.” Id. § 7903(5)(A)(ii). So the Act does not bar a negligent-entrustment claim, even though such a claim otherwise constitutes a qualified civil liability action.

Here, the plaintiffs have sued a company that sold a firearm and ammunition for negligently entrusting the products to the buyer. As silly as it sounds, the issue is whether the plaintiffs’ action against a seller for negligent entrustment is an action “against a seller for negligent entrustment.”

On its face, of course, the question answers itself: the plaintiffs pleaded a claim against a seller for negligent entrustment, and the Act expressly provides that it does not bar that claim. But because “words can have more than one meaning,” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (plurality op.), we must decide what “negligent entrustment” means under the Act and whether the plaintiffs’ claim fits within that meaning.

The PLCAA expressly defines “negligent entrustment” as the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

Nevertheless, the Court concludes that the PLCAA bars the negligent-entrustment claim because Texas common law does not recognize negligent entrustment as a valid claim against a product’s seller. Ante at ___. The Court reasons that because the PLCAA states that its provisions shall not be “construed to create a public or private cause of action,” the Court may utilize the Texas common-law meaning of “negligent entrustment” to determine whether the PLCAA bars the plaintiffs’ claim. Ante at ___ (quoting 15 U.S.C. § 7903(5)(C)). In other words, in the Court’s view, whether the PLCAA’s exception applies depends on whether the claim is viable under state law. The Court thus concludes the PLCAA’s exception for negligent-entrustment claims does not apply (and the PLCAA thus bars the plaintiffs’ claim) because “Texas does not recognize a cause of action for negligent entrustment based on the sale of property.” Ante at ___ (emphasis added).

But the PLCAA does not leave room for this Court to supplement the Act’s definition of “negligent entrustment” with Texas common law. It states that its bar does not apply to negligent- entrustment actions “brought against a seller,” and it defines “negligent entrustment” to mean “a seller” supplying a qualified product “when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” 15 U.S.C. § 7903(5)(A)(ii), (B) (emphasis added). And it defines “seller” to include any importer, dealer, or other person engaged in the business of importing, dealing, or selling firearms or ammunition. Id. § 7903(6). Regardless of any substantive state law, a claim asserting that “a seller” negligently sold a firearm or ammunition is not a “qualified civil liability action” under the PLCAA, so the PLCAA does not bar it. Whether state law will independently support such a claim presents a separate question entirely.

The Court supports its conclusion that the Act bars this negligent-entrustment claim by citing to other courts that have also adopted its reasoning. 5 Ante at ___. Others, however, have recognized that whether the PLCAA bars a claim and whether the claim is viable under state law present two different issues that must be addressed separately. 6 Still others have been inconsistent or unclear in their analysis. 7 While other courts’ reasoning provides helpful guideposts, our precedent controls and confirms that the Act’s definition of “negligent entrustment” must govern whether the Act’s exception for negligent-entrustment claims applies.

“Courts must adhere to legislative definitions of terms when they are supplied.” Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). We held in Youngkin that, because the Texas Citizens Participation Act (TCPA) expressly defined the phrase “exercise of the right to petition,” we could not rely on the constitutional meaning of that phrase to inject additional requirements into the statute’s definition. Id. 8 Instead, because we were construing and applying the TCPA and the TCPA expressly defined the phrase, we were “bound by the statutory definition for the purposes of the TCPA,” the constitutional meaning was “irrelevant,” and injecting additional requirements based on the constitutional meaning “would be disloyal to [the] enacted text.” Id. at 681. In the same way, because the PLCAA expressly defines the phrase “negligent entrustment,” we cannot plaintiffs’ allegations did not fit the PLCAA’s definition of negligent entrustment, “under which the seller must provide the firearm to the person ‘for use’” (quoting 15 U.S.C. § 7903(5)(B))). rely on the Texas common-law understanding of that phrase to inject additional requirements into the PLCAA’s definition. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a statute uses a term with a particular meaning or assigned a particular meaning to a term, we are bound by the statutory usage.” (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002))). In construing and applying the PLCAA, we are bound by the PLCAA’s definition, the Texas common-law understanding is irrelevant, and the Court’s injection of additional requirements is disloyal to the PLCAA’s text. See Youngkin, 546 S.W.3d at 680–81.

The PLCAA’s statement that it does not “create” a cause of action does not somehow alter its definition or exception for “negligent entrustment” claims. 15 U.S.C. § 7903(5)(C). It simply does not create an independent, substantive federal right to recovery based on “negligent entrustment” by a “seller.” And the Act’s exemption of negligent-entrustment claims from its prohibition against the filing of certain claims does not thereby grant permission to recover on any claim. “While the Act may exempt ‘negligent entrustment’ claims from mandatory dismissal under federal law, it does not affirmatively authorize or establish such claims—it simply does not extinguish them.” Noble, 409 S.W.3d at 480.

Thus, the PLCAA describes the category of civil actions it prohibits, excludes “negligent entrustment” actions from that category, and clarifies that none of its provisions establish a federal cause of action. By defining and excepting a negligent-entrustment claim, the Act does not prohibit the filing of a claim that fits within its definition, but it also does not create a cause of action that state law does not recognize. If a claimant asserts a claim that fits within the Act’s definition, state law may prohibit it, but the PLCAA does not.

II.

Texas Law Although the PLCAA does not bar the plaintiffs’ negligent-entrustment claim, I agree with the Court that the claim fails under Texas law. Ante at ___. Some states have held that, under the common law, one who sells a product can be liable for negligently entrusting it to the buyer. 9 In Texas, however, we long ago approved the Fourth Court of Appeals’ holding that a claim for negligent entrustment does not apply when the defendant sells the product to a buyer. See Rush v. Smitherman, 294 S.W.2d 873, 875 (Tex. App.—San Antonio 1956, writ ref’d) (“The rule of negligent bailments at common law does not embrace sales of vehicles.”). Texas courts of appeals have consistently adhered to this holding, reasoning that a party who has fully relinquished ownership and control of a product no longer has a duty to ensure it is used safely. 10 We have since reaffirmed that reasoning, F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 686 (Tex. 2007) (“[T]he basis for imposing liability on the owner of the thing entrusted to another is that ownership of the thing gives the right of control over its use.” (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 73 (5th ed. 1984)), and I agree with the Court’s decision reaffirming it again today. See ante at ___.

In this case, Academy sought summary judgment on the negligent-entrustment claim not only on the ground that the PLCAA bars the claim, but also on the ground that the third party “bought the firearm from Academy; he did not borrow it.” And in this Court, Academy has requested mandamus relief because “[t]he sale of goods cannot support a negligent entrustment claim in Texas” and “negligent entrustment is not recognized in Texas when there is a sale of a good, such as a firearm, instead of a loan of the item.” Under Texas law, Academy was (and is) entitled to summary judgment on this ground.

III.

Conclusion Ordinarily, I would hesitate to grant mandamus relief based on the trial court’s denial of a summary-judgment motion, particularly when the motion’s grounds do not affect the trial court’s jurisdiction or the party’s immunity against the claims asserted. But I agree with the Court that Academy is entitled to mandamus relief to require dismissal of the plaintiffs’ other claims because the PLCAA provides that those claims “may not be brought in any Federal or State court.” 15 U.S.C. § 7902(a). In the interest of judicial economy, I agree that Academy is also entitled to mandamus relief to require dismissal of the plaintiffs’ negligent-entrustment claim, but I do so because the claim fails under Texas law, not because the PLCAA bars it. I therefore respectfully concur in the Court’s judgment, but not fully in its reasoning.

_____________________ Jeffrey S. Boyd Justice Opinion delivered: June 25, 2021