March 29, 2024

Guns

John D. McKinnon | 8/1/1996
A case that comes before Florida's Supreme Court this month is focusing national attention on efforts to hold gun vendors liable for injuries caused by their merchandise. Less noticed - but potentially just as important - are the implications the case could hold for other Florida retailers. By upholding the groundbreaking gun-liability case, the high court could be opening the courthouse door to suits against vendors of more mundane items like cars and heavy equipment.

"Obviously the entire concept of vendors' liability, arising out of what a person outside the vendor's control goes out and does with an item, raises concerns for the business community," says G. Bart Billbrough of Miami, one of the lawyers representing Kmart in a case centering on the retailer's sale of a gun. "It's hard to tell where to stop once you start down that path."

After a daylong drinking binge, Thomas Knapp walked into a Tampa Kmart store one night in 1987 and purchased a .22-caliber rifle. The clerk who sold him the gun later claimed that Knapp didn't appear drunk, even though Knapp testified he'd consumed a case of beer and a fifth of whiskey. But the clerk testified that Knapp's handwriting on a federal gun-purchase form was so illegible that the clerk filled out a new one for him to sign. A short time later, Knapp rammed his car into another with his ex-girlfriend inside and shot her in the neck. She was left a quadriplegic.

In 1993, a jury found Kmart guilty of common-law negligence and awarded the victim about $12.6 million. Traditional common-law negligence allows a jury to determine that a defendant breached a duty of care, regardless of whether the defendant's conduct is prohibited by a specific statute. At the time, the verdict was believed to be one of the largest gun-sale negligence awards in the country.

But last year an appeals court threw out the award. The 4th District Court of Appeal held that common-law negligence wasn't available against Kmart because the Legislature already had established the limits of gun-vendor responsibility through the state's gun-control regulations. That argument, known as legislative preemption, often has been used to limit vendors' common-law liability in recent years, in Florida and elsewhere. For example, Florida's Supreme Court cited this principle in throwing out a claim against a car dealer whose salesman had sold a vehicle to a person the salesman knew to be an incompetent driver. Now, with the Kmart case, the defense weapon of legislative preemption could be pried from the vendors' hands.

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Legal Briefs

A 5th District Court of Appeal opinion in an Orange County case could undo a legal doctrine that has governed the sale of offices, industrial buildings and other commercial properties. According to a ruling by a three-judge panel, state statutes to prevent groundwater pollution abrogated the legal doctrine of caveat emptor ("let the buyer beware") in commercial real estate sales.

While sellers of Florida homes have been required to disclose major property defects since the 1980s, sellers of commercial real estate have been protected by the common-law doctrine of caveat emptor, absolving them of any duty to disclose most kinds of property defects. But in a lawsuit brought by a would-be warehouse developer, the 5th District held that he could seek wide-ranging damages from the sellers for groundwater pollution the developer claims is present on the site (formerly occupied by an auto repair shop).

The plaintiff's lawyer, David S. Oliver of Greenberg Traurig's Orlando office, notes that caveat emptor has made the hiring of contamination consultants a standard practice among commercial property buyers. If the 5th District decision holds up, sellers probably should start doing the same.

Because the 5th District's decision conflicts with a prior ruling by the 2nd District Court of Appeal, there's a good chance the state Supreme Court will take up the case for review.

Lawyers, businesspeople and bureaucrats soon could start transmitting many official documents, such as real estate records and court filings, via computer using digital authentication standards being developed by the Florida Secretary of State's office. The standards could even help clear the way for more private commerce by computer.

Officials hope the authentication effort will help solve a nagging problem on the Internet: how to make sure that an electronic transmission is genuine. That's vital in official matters like court cases, where a forged or altered document could cause havoc. But it's also a big issue in private commerce on the wide-open Internet, where the potential for fraud remains too high for many kinds of transactions.

The most likely solutions, experts say, will employ cryptography software and individual user codes, known as "keys." Each user will have two keys - one publicly known, one the user keeps secret. Both keys would have to be employed to complete a transaction. In the usual scenario, the sender would encrypt a transmission using his private key, and the receiver would decrypt the transmission using the sender's public key.

Such encryption software already is widely available. It's already being used on the Internet for some transactions - for example, customer access to bank account information.

But for one-time transactions between strangers and for highly sensitive matters like official records, simple encryption still isn't providing enough security, experts say. One big question: what happens when a hacker manages to steal a user's private key?

So efforts are under way in Florida and elsewhere to find ways that third parties like government agencies as well as law firms, banks and established businesses can certify the identities of people involved in electronic transfers of documents, much as a notary would for a paper transaction.

Legislation passed earlier this year makes Florida the fourth state to start working on a program to designate public and private entities as digital notaries. The legislation authorizes the Secretary of State to begin the process.

The U.S. Postal Service, among others, also plans to enter the digital certification arena. In addition, credit card giants Visa and MasterCard are pursuing their own solution to the verification problem using encryption technology.

Few people would want to live the way Floridians did a century ago, without air conditioners and mosquito controls. But even those who do can't avoid one modern fact of life: government regulation. According to a suit filed recently by a team of Holland & Knight lawyers, Collier County inspectors have cited a band of Seminoles living in "chickees" - traditional huts made of cypress wood and palm thatch - because the structures were built without permits. Seminoles "have been living without county interference in Collier County since (Chief) Billy Bowlegs left in 1858, and no one's ever tried to enforce the building code," complains Holland & Knight lawyer Elizabeth Bevington. The suit on behalf of eight members of the Independent Traditional Seminole Nation seeks an injunction and damages, claiming interference with their tribal beliefs and religious rights.

Tags: Florida Small Business, Politics & Law, Business Florida

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