Hetherton v. Sears, Roebuck & Company

593 F.2d 526 (1979)

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Nature of the Case

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Facts

Fullman purchased a .22 caliber rifle and rifle cartridges from D. Six weeks later, in an attempted robbery of a Wilmington restaurant, Fullman, using that same rifle and ammunition shot James (P), an off-duty police officer, was employed as a guard in the restaurant, in the head. P was injured seriously. Fullman was convicted of attempted second-degree murder, attempted robbery, possession of a deadly weapon during the commission of a felony, possession of a deadly weapon by a person prohibited, and conspiracy of the second degree. Prior to these events, Fullman had been convicted previously of the felonies of attempted robbery, conspiracy of the second degree, and falsely reporting an incident. Fullman was prohibited under Delaware law from purchasing the rifle and cartridges obtained from D. By law prior to such a sale, D was required to receive from two freeholders the positive identification of a purchaser of any 'deadly weapon.' No freeholders identified Fullman when he made his purchase. He produced a Delaware driver's license and completed a Federal Firearms Transaction Record, Form 4473. He indicated on Form 4473 that he had never been convicted of a felony but that was false. P sued claiming D was negligent because it had failed to require at least two freeholders to identify Fullman. The district court granted D's motion for summary judgment. Ps appealed.