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Delana v. Odessa Gun & Pawn — (CIRCUIT COURT OF LAFAYETTE, MISSOURI)

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IN THE CIRCUIT COURT OF LAFAYETTE, MISSOURI AT LEXINGTON

JANET S. DELANA Individually, and as the wife of decedent Tex C. DELANA, Plaintiff

CED Sales, Inc. d/b/a/ ) ODESSA GUN & PAWN,  JURY TRIAL DEMANDED

CHARLES E. DOLESHAL, BRETT DOLESHAL and DERRICK DADY, Defendants.

Dated: March 12, 2014

PETITION FOR DAMAGES

COMES NOW Plaintiff Janet S. Delana…alleges as follows:

SUMMARY OF ACTION

  1. This is a civil action stemming from the shooting of Tex Delana on June 27, 2012 with a pistol purchased from Odessa Gun & Pawn. Odessa negligently sold the pistol to Colby Sue Weathers (“Weathers”), despite knowing that Weathers had a long history of mental illness with resultant hospitalizations, erratic behavior and suicidal tendencies, and posed a substantial and highly foreseeable risk of causing harm to herself or others with the firearm. Approximately one hour after Odessa sold Weathers the pistol, Weathers used the gun to shoot and kill her father, Tex Delana.
  2. This lawsuit does not in any way challenge the right of law-abiding, responsible citizens to keep and bear arms, nor does it challenge responsible gun dealers’ proper operation of their business of selling guns to law-abiding, responsible citizens. However, negligently supplying guns to the dangerously mentally ill causes grave harm. It is reasonably foreseeable that those individuals will cause injury to themselves or others. Gun dealers owe a duty to use reasonable care – indeed, the highest degree of care – in their business operations to prevent supplying foreseeably dangerous persons such as Colby Weathers with lethal firearms. Odessa breached that duty, and as a foreseeable result Tex Delana was killed.
  3. At the time of the gun sale, Weathers had a well-established history of mental illness, substance abuse and suicidal ideations and, upon information and belief, had been determined to be severely mentally ill by the United States Social Security Administration (“SSA”). She began to manifest a high level of paranoia in 2006 and was diagnosed with schizophrenia in 2011 by a doctor evaluating her for Medicaid eligibility, who concluded that Weathers exhibited a well-informed paranoid delusional system and was severely impaired by her psychosis. Weathers was hospitalized on several occasions for suicidal ideations and/or attempts and had a history of overdosing on psychotropic and over-the-counter medications, as well as abusing alcohol and illegal drugs. In fact, less than one month prior to the shooting of Tex Delana, Weathers contemplated committing suicide with another gun purchased from Odessa.
  4. On the day Odessa sold Weathers the gun she used to kill her father, Odessa knew or should have known that Weathers was a danger to herself and/or others. Two days prior, Plaintiff Janet Delana, Weathers’ mother, called Odessa and notified the store that Weathers was severely mentally ill and should not be sold a gun due to her suicidal tendencies and increasingly erratic behavior. Plaintiff provided Odessa with Weathers’ identifying information and warned that Weathers would try to buy a gun in the next few days with the money from her forthcoming Social Security check. Odessa ignored Plaintiff’s pleas to not sell Weathers the gun and sold her the pistol regardless.
  5. This complaint seeks damages against Defendants, jointly and severally, for negligence, negligent entrustment and negligence per se, which proximately and directly led to the death of Tex Delana.

PARTIES AND JURISDICTION

  1. Plaintiff is entitled to bring a cause of action for the wrongful death of Decedent pursuant to RSMo. § 537.080.

COLBY SUE WEATHERS’ HISTORY OF MENTAL ILLNESS AND SUBSTANCE ABUSE

  1. Weathers had a long history of severe mental illness, suicidal tendencies, erratic behavior and substance abuse.
  2. Weathers began to manifest high levels of paranoia and anxiety at least as early as 2006. In 2007, she began to hear voices and complain of a chip being implanted in her brain through her nose. From 2007 through 2010, she was hospitalized four times due to suicidal ideations and/or attempts, typically by overdose of psychotropic medication and over-the-counter pills. Medical records from this time period indicate that Weathers was paranoid, in fear of her neighbors and exhibiting outbursts of temper. Weathers entered an outpatient treatment center in 2010, where she was treated through 2012 with antipsychotic and antidepressant medications.
  3. In April 2011, as part of her evaluation for Medicaid eligibility, Weathers was diagnosed with paranoid schizophrenia. At that time, and continuing at least through the time of the shooting, Weathers was severely impaired by her psychiatric illness. Weathers exhibited a well-formed paranoid delusional system, which included hearing hallucinatory voices, believing that she was being monitored by a chip implanted inside her nose and being stalked by people who were planning to kill her. Weathers’ paranoid schizophrenia was poorly controlled with medicine and the physician evaluating her for Medicaid eligibility concluded that Weathers should be considered a significant risk to injure herself.
  4. Upon information and belief, in 2011, SSA determined that Weathers was severely mentally ill and was unable to work due to her mental defect. Weathers began receiving SSA benefits in June or July 2011 and continued receiving these benefits through the time of the shooting of Tex Delana.
  5. In the years leading up to Weathers’ purchase of the gun that killed her father,Weathers was treated with psychotropic medications such as Saphris, Bupropion (Wellbutrin), and Effexor.
  6. At times Weathers self-medicated, over-dosed and inconsistently complied with her psychotropic and over-the-counter medications.
  7. In addition to her severe psychiatric illness, Weathers has a documented history of substance abuse. She began drinking heavily in 2008 and by 2010, was drinking up to a fifth of a gallon of liquor per day. She also has a history of illegal drug use, including marijuana, cocaine and methamphetamines.

ODESSA SELLS WEATHERS A GUN AS SHE IS SPIRALING OUT OF CONTROL

  1. In the months leading up to the shooting of Tex Delana, Weathers began to spiral out of control. Her family became fearful – noting that Weathers referred to everyone as Satanists and at one point told her brother that he wasn’t on her list. Weathers herself acknowledged that in the months prior to the shooting, her mental health was deteriorating.
  2. On May 29, 2012, less than one month prior to shooting her father, during this period when she was in the throes of her hallucinatory and out-of-control mental state, Weathers entered Odessa with the intent to buy a firearm in order to kill herself with it. Odessa personnel were in a position to observe her and speak with her while she was in her hallucinatory, suicidal state. Notwithstanding Weathers’ highly unusual and unstable mental state, Odessa sold her a Hi-Point JCP .40 caliber semi-automatic pistol (“Hi-Point JCP .40 Cal Pistol”).
  3. Defendant Dady, the Odessa manager who would later sign off on the purchase of the gun which Weathers used to kill her father, was also involved in the sale of the Hi-Point JCP .40 Cal Pistol to Weathers on May 29, 2012.
  4. After Odessa sold Weathers the Hi-Point JCP .40 Cal Pistol, Weathers sat with it for over an hour and tried to get the courage to shoot herself. After sitting with the loaded gun and contemplating suicide, Weathers became scared and informed her parents that she had bought a gun. Tex Delana promptly got rid of it.
  5. However, Weathers continued to spiral. Her mother noticed that she was acting more strangely and in a hostile manner. In the days leading up to the shooting, Delana reported to Weathers’ case manager that her daughter was getting worse and threatening suicide. Weathers herself reported that she was in a manic phase in the two days leading up to the shooting of her father and that the voices inside her head told her to buy a gun and kill herself.

PLAINTIFF WARNS ODESSA OF WEATHERS’ SEVERE MENTAL ILLNESS AND INCREASINGLY ERRATIC BEHAVIOR

  1. On the morning of June 25, 2012, hoping to avert a tragedy, Janet Delana called Odessa to inform the shop of the severe nature of Weathers’ mental illness and the likelihood that Weathers would attempt to buy another gun from Odessa for the purpose of committing suicide.
  2. Janet Delana spoke with a male employee of Odessa alerting him to her daughter’s mental condition, her history of hospitalizations, her suicidal tendencies and her desire to buy a gun. Delana detailed her daughter’s medical history and mental condition, including her diagnosis with paranoid schizophrenia and/or severe mental illness. Delana told the employee about Weathers’ close call with her previous gun purchase from Odessa. Delana emphatically and urgently requested that Odessa not sell Weathers a gun because of the great likelihood that Weathers would use the gun to shoot herself or others.
  3. The conversation should have made it abundantly clear to Odessa that Weathers was mentally ill and posed a serious threat to herself and/or others if she obtained a firearm.
  4. In the same conversation, Janet Delana further informed Odessa that her daughter would be receiving her Social Security check, which she was entitled to receive due to her mental illness, in the next few days and would likely come to the store to purchase a gun with the money from the check. Delana pled with the Odessa employee to not sell Weathers a gun because of the grave risk of physical injury that Weathers’ possession of a firearm would pose.
  5. Janet Delana identified herself as Weathers’ mother and provided identifying details to the employee, including her daughter’s name, date of birth and Social Security number, so that the store could be certain that Weathers was the woman Janet Delana described. Delana requested that the employee write down Weathers’ name and post it near the cash register, so that other employees would also be aware of the situation and not sell her a firearm.
  6. Despite Missouri state law which specifically permits firearms dealers, their agents and employees to refuse to sell a firearm to a customer based on individual judgment, so long as such refusal is not based on race, gender, religion or creed of the buyer, the Odessa employee told Delana that if Weathers came in, the store would have little control over whether or not to sell her the gun.