Family of drive-by shooting victim can't sue Cabela's for selling the gun

By Tomas Kassahun | Apr 8, 2019

WILMINGTON, Del. (Legal Newsline) – A Delaware Superior Court judge has dismissed a lawsuit against Cabela’s Wholesale Inc., a sporting and recreation goods store, filed by the family of a woman killed in the crossfire of a drive-by shooting.

In the ruling on March 29, Judge Vivian L. Medinilla said Cabela’s cannot be held responsible for selling the gun that killed Keshall Anderson in 2016. It's somewhat in contrast to a recent Connecticut ruling that allows the victims of the Sandy Hook shooting to sue Remington.

The plaintiffs in the Delaware case allege Brilena Hardwick bought the gun in July 2016 and gave it to her boyfriend, John Kuligowski, a convicted felon prohibited from buying a gun.

"He neither purchased the firearm nor used it in the fatal shooting of Anderson," the ruling states. "His role is that he served as the alleged conduit that placed the weapon into the criminal market that allowed two juveniles to get their hands on the gun that killed Anderson."

Kuligowski allegedly drove Hardwick to the store and waited in the parking lot. 

According to the opinion, plaintiffs argued that Cabela’s remained “willfully blind” to “red flags” that Hardwick was a straw purchaser and that they “then knowingly provided incorrect data to the NICS system.”

The Superior Court said the plaintiffs provided no basis as to how Cabela’s could have checked the records of anyone other than Hardwick as the actual purchaser.

“This assertion that Cabela’s could have, but didn’t check ‘the actual purchaser,’ can’t form the basis for a theory of liability as it is conclusory and unsupported by specific facts,” the opinion stated. “The court can’t draw unreasonable inferences in favor of the plaintiffs as to this allegation.”

According to the opinion, plaintiffs also argued that Cabela’s should have known that Hardwick was a straw purchaser because she was driven to the store by her boyfriend and he waited in the parking lot for her. 

“It’s unclear how Cabela’s could have been aware of this fact at the time of the purchase,” the opinion stated. “Even if surveillance is available to support this 'allegation' that her boyfriend was waiting in the parking lot, it is an unreasonable inference that Cabela’s should have then suspected Hardwick was a straw purchaser.”

The plaintiffs’ next argument, according to the opinion, is that Hardwick showed erratic behavior, running up and down the aisles while remaining in regular cellphone contact with Kuligowski through text and calling.

The Superior Court said the plaintiffs fail to show how that claim proves Cabela’s purposefully provided incorrect information regarding Hardwick in order to make the sale.

“The focus is on this incorrect information which includes a false address and that she allegedly lied about being the actual purchaser,” the opinion stated.

The Superior Court said police later determined that Hardwick didn’t live at the stated address on her identification, but the plaintiffs can’t establish that those facts were available to Cabela’s at the time they had her fill out the documentation.

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