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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 236 September Term, 1996 _______________________________

VINCENT N. VALENTINE, et al.

v.

ON TARGET, INC.

_______________________________ Wilner, C.J., Murphy, Bloom, Theodore G. (retired, specially assigned), JJ. _______________________________ Opinion by Wilner, C.J. _______________________________ Filed: November 4, 1996

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Vincent N. Valentine appeals from a judgment of the Circuit Court for Anne Arundel County dismissing his complaint against appellee, On Target, Inc. consideration: May the victim of a shooting maintain an action against a gun retailer for injuries sustained by the victim as a result of the retailer's failure to prevent the theft and criminal use of the gun? Background Because this appeal arises from the granting of a motion to dismiss, rather than a summary judgment or judgment entered after trial, we must confine ourselves to the allegations in the He raises the following issue for our

pleadings.

Faya v. Almaraz, 329 Md. 435, 444 (1993); Briscoe v. In addition,

City of Baltimore, 100 Md. App. 124, 128 (1994).

because the trial court did not state its reasons for granting appellee's motion to dismiss, we will affirm the judgment if the record discloses correct. any reason why the trial court was legally

Briscoe at 128.

Appellee is a gun retailer serving the greater Metropolitan Washington/Baltimore area. On July 17, 1993, one Edward McLeod and

another individual, who has not been identified, stole two guns from the store. The complaint gives no details with respect to how On September

McLeod and his confederate managed to steal the guns.

26, 1993, an unknown assailant -- apparently not McLeod -- used one of the stolen guns to shoot and kill appellant's wife, Joanne. Appellant filed a wrongful death action on behalf of himself and his two minor children and a survivor's action as personal

representative of his wife's estate.

In both actions, he claimed

that appellee owed a duty to Mrs. Valentine and "all other persons situate in or near Anne Arundel County, Maryland" to exercise reasonable care in the display of handguns held out to the public for sale and "to prevent theft and illegal use of the handguns." Although, as noted, he gave no details as to how the guns were stored, what precautions appellee had taken to secure the guns, or how the theft occurred, appellant nonetheless charged that appellee had breached its duty to Mrs. Valentine and all other residents of Anne Arundel County by failing to (1) properly train and supervise its employees, (2) supervise its customers, (3) install adequate security and keep watch over the handguns, (4) properly secure the handguns, (5) interrupt the theft, and (6) give timely notice of the theft to law enforcement authorities and to the community. Appellee moved to dismiss the complaint for failure to state a claim upon which relief could be granted. It pointed out the

lack of any details indicating what appellee had, in fact, done in each of these regards. In argument on the motion, defense counsel

indicated that the guns had been in a locked display case, that the police had been promptly notified, and that they had investigated the theft. Those responses, of course, were merely statements of

counsel and may not be considered in determining the adequacy of the complaint on a motion to dismiss. Appellee's principal defense Without

was that it simply owed no duty to Mrs. Valentine. explaining its decision, the court dismissed the action. Discussion - 3 -

Introduction: Duty and Causation Appellant avers that appellee is liable under a theory of common law negligence. An action for negligence requires, of course, proof of "To

negligence, but it requires proof of other elements as well.

succeed in a negligence action, the plaintiff must [allege and] establish the following: `(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty.'" BG & E v. Lane, 338 Md. 34,

43 (1995), quoting from Rosenblatt v. Exxon, 335 Md. 58, 76 (1994). It is the first two elements, most particularly the second, that constitute the negligence. (5th ed. 1984). Although in many cases there is little or no overlap between the four elements, in some instances the same considerations that relate to or define the element of duty may also relate to or define the element of causation. The element common to both duty Prosser and Keeton speak PROSSER
AND

KEETON ON TORTS,

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