Virginia Lawyers Weekly VA Lawyers Weekly
The court overrules defendants’ demurrer to a negligent entrustment claim arising from their son’s fatal shooting of two people.
Plaintiff’s amended complaint alleges, in the court’s words, that “[d]efendants left their firearms unsecured and unlocked in the basement, giving [defendants’ son] unlimited access to the firearms.”
Overview
“Plaintiff, as the Administrator of the Estate of Buckley Fricker, filed suit in June 2021 against Defendants Michael and Marilyn Giampa (‘Defendants’), requesting punitive and compensatory damages for negligence and negligent entrustment in relation to the deaths of Buckley and Scott Fricker (‘Frickers’).
“Defendants are the parents of Nicholas Giampa (‘Nicholas’), a seventeen-year-old who previously dated Buckley Fricker’s daughter Amelia until she ended the relationship at the Frickers’ behest.
“After the breakup, early in the morning on December 22, 2017, Nicholas took Defendant Marilyn Giampa’s car and Defendants’ handgun and ammunition to the Frickers’ home in Reston.
“Defendant Marilyn Giampa realized her son was gone sometime in the night and had taken the keys she attempted to hide from him, so she called Buckley Fricker and warned her Nicholas may be on his way to the Fricker house.
“When he was discovered in the house by Scott Fricker, he shot Buckley and Scott Fricker, who ultimately died from their injuries.”
Accessible
“[T]he Amended Complaint sets forth [Nicholas’] unrestricted access to the family firearms. … Defendants left their firearms unsecured and unlocked in the basement, giving Nicholas unlimited access to the firearms. … Defendants trained their son how to shoot, including how to make head shots, and gave Nicholas the freedom to hunt on the family property in Lorton. …
“Nicholas was skilled; Defendant Marilyn Giampa even told others her son ‘shot and killed a coyote from 200 yards away.’ … Defendants also had various photographs of Nicholas using their firearms. …
“Further, the Amended Complaint alleges Defendants gave Nicholas this access despite their knowledge of his numerous mental health and behavioral issues as well as his need for treatment.”
Defendants demurred to the negligent entrustment and punitive damages claim.
Entrustment
“Virginia recognizes the doctrine of negligent entrustment in cases where an owner negligently entrusted another with an instrumentality which causes injury to a third party. … First, there must be evidence sufficient to support a finding of entrustment of the instrumentality, which can be found through evidence of (1) express permission, (2) a pattern of conduct supporting implied permission, or (3) knowledge the instrumentality would be used unless explicit instructions were given to the contrary. …
“Further, the entrustment must also be negligent, which requires the owner of the instrumentality to have known or had reasonable cause to know they were entrusting the instrumentality to a third person likely to use it in a manner which would cause injury to others. …
“Defendants allowed their son to use the family firearms, both supervised and unsupervised, while imposing no limitations on his use before the morning of the December 22 incident. This pattern of conduct establishes Defendants impliedly entrusted their firearms to Nicholas for his use. …
“Taking all of Plaintiffs allegations in the Amended Complaint as true and viewing all the facts in the light most favorable to the Plaintiff, Plaintiffs Amended Complaint properly alleges entrustment of the family firearms to Nicholas by Defendants.”
Negligence
Plaintiffs have sufficiently alleged that the entrustment was negligent. “While Nicholas had not previously used a firearm in a criminal manner, illegal activity of an individual is not the only basis to find a party negligent in entrusting them with their firearm.
“Defendants still had reasonable cause to know their entrustment of a firearm to Nicholas may result in its use to cause injury to another.” The amended complaint sets forth that “Defendants were aware of Nicholas’ longstanding mental health and behavioral issues, including his threats at an early age to blow up his school. …
“Defendants also were aware of the results of a forensic mental health evaluation, completed … only two months before the events of December 22, 2017. … The evaluation noted he was in need of residential treatment for individuals with ‘mental health issues and who engage in child pornography and animal torture viewing’ to allow him to work on his ‘paranoid ideation’ and ‘anger management skills.’ …
“There is an inherent responsibility in ownership and access to instrumentalities which can cause harm. A vehicle and a firearm, two potentially fatal instrumentalities; one standard for negligent entrustment. …
“From the Amended Complaint, there are sufficient facts alleged that if Defendants knew Nicholas would take the car, the Defendants knew or had reasonable cause to know Nicholas would take the unsecured weapon.
“Despite recognizing Nicholas’ deteriorating fragile state and knowing his prior interest in violent materials, Defendants failed to do anything to secure the weapons in the household.
“When coupled with the allegations of entrustment of the firearms by Defendants to their son, these allegations are sufficient to state a cause of action for negligent entrustment.”
Punitive damages
“The Amended Complaint sets forth a sufficiently egregious set of facts supporting Plaintiff’s request for punitive damages. While Defendants did not, from the facts alleged, act with any actual malice, Plaintiff pled enough facts to show Defendants acted with recklessness as to ‘evince a conscious disregard of the rights of others.’ …
“Defendants knew of their son’s behavioral and mental health problems, and the recommendations for residential treatment, but still gave him access to the weapons in the household freely and without restriction. …
“More concerningly, Defendants were also aware of his anger about the breakup with Amelia and her family’s role, evidenced in part by Nicholas’ punching of the wall in Defendants’ home in December. …
“Defendants knew Nicholas was struggling even more than usual, with Defendant Marilyn Giampa trying to get him into an inpatient mental health facility mere hours before the shooting. …
“She tried to take away his access to the family car that evening, knowing Nicholas may be a risk, yet Defendants still did not remove his access to the family firearms. …
“When she woke up the night Nicholas left for the Fricker home and called Buckley Fricker to warn her he may be coming, she failed to check to see if any of the Defendants’ guns were missing or warn Buckley about the possibility of a weapon. …
“Defendants’ role in and knowledge of the series of events leading up to the morning of December 22, 2017, and continued failure to act to secure the weapons in their home from their son, could constitute a reckless indifference to consequences which may support an award of punitive damages.”
The demurrer is overruled.
Kuhn v. Giampa, et al., Case No. CL-2021-88745, April 13, 2023. Fairfax County Circuit Court (Azcarate). Peter D. Greenspun for plaintiff. R. Michael Trumble for defendants. VLW 023-8-022, 8 pp.
