ALOK AHUJA, Judge.

These consolidated appeals involve two separate lawsuits which were dismissed for identical reasons by the Circuit Court of Jackson County. The plaintiffs in each case brought claims against Shawnee Gun Shop, Inc. d/b/a/ The Bullet Hole. The plaintiffs alleged that the Gun Shop was negligent in selling firearm ammunition and/or magazines to a purchaser who later used the items to shoot and kill two individuals. The circuit court dismissed both cases for failure to state a claim upon which relief can be granted. We affirm.

Background

Because this case was decided on a motion to dismiss, we assume the truth of the allegations of the petitions filed in the two underlying cases. The Gun Shop operates a retail store selling firearms, ammunition, and related merchandise in Overland Park, Kansas. According to the petitions, David W. Logsdon purchased firearm magazines and/or ammunition from the Gun Shop on April 24, 2007, using a credit card which he had stolen from Patricia Reed. Reed was Logsdon's neighbor, and was found dead in her home; Logsdon is suspected of murdering her.

On April 29, 2007, it is believed that Logsdon used the ammunition and/or magazines he purchased from the Gun Shop in a shooting spree in the parking lot of the Ward Parkway Shopping Center in Kansas City, during which he shot and killed Luke Nilges and Leslie Noble Ballew, in addition to injuring several other people. Logsdon was later shot and killed by police inside the shopping center.

Nilges' parents, Jo Ann and Wayne Nilges, and Ballew's parents, Carolee and Leo Noble (collectively "Appellants"), filed separate wrongful-death actions against the Gun Shop in the circuit court, alleging that the Gun Shop was negligent in its sale of the magazines and/or ammunition to Logsdon. Appellants alleged that Logsdon's use of Reed's stolen credit card to purchase the ammunition and/or magazines should have alerted the Gun Shop that Logsdon's purchase presented a risk of serious injury.

The circuit court dismissed both cases in 2009 for lack of personal jurisdiction over the Gun Shop. We reversed, and remanded the cases to the circuit court for further proceedings. Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364 (Mo.App.W.D. 2010).

On April 17, 2012, the Gun Shop filed motions to dismiss in both cases, alleging that Appellants' petitions failed to state claims upon which relief could be granted. In response, Appellants requested and were given leave to file amended petitions. On June 15, 2012, the Gun Shop renewed its motions to dismiss. The circuit court dismissed both cases with prejudice on August 24, 2012.

In re T.Q.L., 386 S.W.3d 135, 139 (Mo. banc 2012) (citations and internal quotation marks omitted).

Analysis

The Protection of Lawful Commerce in Arms Act (the "Commerce in Arms Act" or "Act"), 15 U.S.C. §§ 7901-7903, generally prohibits lawsuits against a manufacturer or seller of firearms and related products based on the criminal misuse of such items, unless the suit falls within one of six enumerated exceptions. The Act provides that "[a] qualified civil liability action may not be brought in any Federal or State court," and that qualified civil liability actions pending when the statute was enacted in 2005 "shall be immediately dismissed by the court in which the action was brought or is currently pending." 15 U.S.C. §§ 7902(a), (b). The Commerce in Arms Act "expressly preempts state common law by requiring that state courts immediately dismiss qualified civil liability actions" not falling within a statutory exception. Est. of Kim v. Coxe, 295 P.3d 380, 387-88 (Alaska 2013); see also, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1131-32 (9th Cir.2009).

The Act defines a "qualified civil liability action" as:

15 U.S.C. § 7903(5)(A). A "qualified product" is defined to be "a firearm ..., or ammunition ..., or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce." 15 U.S.C. § 7903(4).

The parties do not dispute that the underlying actions fall within the general definition of "qualified civil liability actions": the Gun Shop was a "seller," the magazines and/or ammunition were "qualified products," and Appellants seek both compensatory and punitive damages resulting from Logsdon's criminal misuse of the ammunition and/or magazines. Therefore, dismissal of Appellants' lawsuits was required by the Commerce in Arms Act, unless their claims fall within one of the statutory exceptions.

The Act's definition of a "qualified civil liability action" excludes "an action brought against a seller for negligent entrustment...." 15 U.S.C. § 7903(5)(A)(ii). The Act defines "negligent entrustment" as:

15 U.S.C. § 7903(5)(B). Appellants rely exclusively on the "negligent entrustment" exception to avoid the Commerce in Arms Act's broad prohibition of qualified civil liability actions.

Although Appellants acknowledge that "these cases are not common law negligent entrustment cases," they nevertheless contend that their claims fall within the Commerce in Arms Act's "negligent entrustment" exception. The Gun Shop disagrees; it argues that, unless Appellants' causes of action constitute viable claims for "negligent entrustment" under state law, their claims cannot fall within the Act's "negligent entrustment" exception, and the trial court was required to dismiss them.

The parties' dispute as to whether Appellants' claims must be denominated as "negligent entrustment" claims under state law is something of a diversion. The Act creates an exception to its broad preemption of firearms-related tort suits for causes of action for "negligent entrustment." The Act specifically defines the "negligent entrustment" claims which may continue to be asserted. While the Act uses the label "negligent entrustment" to denote this category of excepted claims, it could just as easily have used phrases like "exempt action" or "non-preempted claim" to denote the excepted claims, with the same legal effect. The label "negligent entrustment" is less important than the specific description Congress provided of the actions which survive. In other words, a state-law claim may continue to be asserted, even if it is not denominated as a "negligent entrustment" claim under state law, if it falls within the definition of a "negligent entrustment" claim provided in 15 U.S.C. § 7903(5)(B).

The allegations of Appellants' amended petitions clearly fall within the Commerce in Arms Act's definition of a "negligent entrustment" claim. The petitions allege that the Gun Shop permitted Logsdon to purchase magazines and/or ammunition using a stolen credit card issued to a female cardholder, and knew or should have known that Logsdon was using Reed's credit card without authorization, and was thereby committing a crime. The petitions further allege that, because the Gun Shop knew or should have known that Logsdon was making his purchases with a stolen credit card, it knew or should have known that Logsdon was likely to use the purchased articles in a manner involving unreasonable risk of physical injury to others.

Even if the Appellants' allegations fall within the Commerce in Arms Act's "negligent entrustment" exception, however, the question remains: do those allegations state a viable cause of action under the governing substantive law? We conclude that the answer to this question is "no," and that dismissal of Appellants' petitions was therefore required.

The Commerce in Arms Act does not itself create a private right of action for claims falling within the "negligent entrustment" exception. The Act specifies only that the broad preemption of "qualified civil liability actions" found in 15 U.S.C. § 7902(a) "shall not include" claims for "negligent entrustment" (as defined). While the Act may exempt "negligent entrustment" claims from mandatory dismissal under federal law, it does not affirmatively authorize or establish such claims — it simply does not extinguish them.

More importantly, the Act expressly provides that "no provision of this Act shall be construed to create a public or private cause of action or remedy." 15 U.S.C. § 7903(5)(C).

Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (citations omitted). Here, the Commerce in Arms Act's explicit negation of any private right of action is dispositive; Appellants must look to some other source of law to establish a cause of action falling within the Act's "negligent entrustment" exception.

Appellants argue that, even though the Gun Shop is located in Kansas and dealt with Logsdon there, Missouri law should govern their claims.1 They also admit that Missouri does not recognize a negligent entrustment claim against a product seller, and therefore that they cannot assert a negligent entrustment claim under Missouri law.2 Appellants' concession that Missouri negligent entrustment claims do not extend to product sellers appears to be consistent with current caselaw. See, e.g., Sansonetti v. City of St. Joseph, 976 S.W.2d 572, 578-79 (Mo.App.W.D.1998) (negligent entrustment theory not applicable where, even if vehicle sale not technically completed at time of injury-causing accident, "[b]oth [seller] and [buyer] intended there be a sale, and the car was permanently relinquished to [buyer]"); Fluker v. Lynch, 938 S.W.2d 659, 662 (Mo. App.W.D.1997) (dealership not liable under negligent entrustment theory for accident occurring the day after a vehicle sale, despite the fact that the buyer appeared to be intoxicated at the time of the sale and the transaction was arguably not yet complete).3 Missouri courts refuse to recognize negligent entrustment claims against product sellers because, to establish negligent entrustment, a plaintiff must establish that the entrustor's "right of control over the [entrusted article] was superior to [the entrustee's] right of control." Hays v. Royer, 384 S.W.3d 330, 337 (Mo.App. W.D.2012). That "superior control" cannot be established in the case of a product sale, because in a sale transaction the seller relinquishes all control over the product.

Rather than relying on Missouri's negligent-entrustment doctrine, Appellants argue that this Court should recognize a claim against the Gun Shop based on general negligence principles, for its "negligent sale" of the ammunition and/or magazines to Logsdon. We refuse to recognize such a novel claim, for two principal reasons. First, Appellants' claim asserts that the Gun Shop negligently gave Logsdon possession of a non-defective article or articles, in circumstances in which the Gun Shop should have been aware that Logsdon was likely to use those articles in an unintended and unauthorized manner which could cause harm to others. This claim is most naturally understood as a negligent entrustment claim. Yet Appellants admit that they cannot assert a negligent entrustment claim against the Gun Shop under current Missouri law, because Missouri law holds that a seller of chattels cannot be held liable for negligent entrustment. Appellants do not argue for a modification of that existing law. In these circumstances, we will not permit them to evade the limitations on Missouri's negligent-entrustment doctrine, under the guise of asserting a "general negligence claim."4

The most recent RESTATEMENT OF THE LAW applicable to personal-injury claims explains that, while all persons are subject to a duty to exercise reasonable care to avoiding harming others, that generalized duty is inapplicable in specific contexts where the courts have determined that no duty should apply:

RESTATEMENT (3D) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 7, comments a, j (2010). Although Appellants argue that the foreseeable risk of harm presented by the Gun Shop's sale of firearm-related products justifies imposing a duty on it to avoid such harm under general negligence principles, that argument is foreclosed by the Missouri caselaw addressing this specific situation, which refuse to hold product sellers liable for negligent entrustment.

In addition, Appellants cite no case in which a Missouri court has recognized a cause of action against the seller of a non-defective, lawful product, for injuries caused by the unlawful use of that product by a third party, away from the seller's premises. Appellants argue that their cases are "analogous to dram shop cases where an action may be brought against a bar owner if the bar owner serves alcohol to an underage or visibly intoxicated person, where the bar owner knew or should have known of the same and the patron leaves the bar and causes personal injury or death to a third person." Opening Br. at 24. There are several problems with this argument, however. First, Missouri's recognition of common-law dram shop liability has a checkered history. Although this Court recognized a cause of action against a tavern owner for injuries caused by an intoxicated patron under general negligence principles in Carver v. Schafer, 647 S.W.2d 570, 575 (Mo.App.E.D.1983), the General Assembly responded by enacting what is now § 537.053, RSMo Cum. Supp.2012.5 While that statute recognizes a cause of action against persons licensed to sell liquor by the drink in defined circumstances, see § 537.053.2, it also declares that,

§ 537.053.1. Thus, the dram-shop liability currently recognized in Missouri is purely statutory, and has no application here.

Moreover, even if dram-shop liability is founded in common-law principles of wider applicability, dram-shop liability is imposed only on persons "licensed to sell intoxicating liquor by the drink for consumption on the premises." § 537.053.2, RSMo Cum.Supp.2012. The Gun Shop did not sell any articles to Logsdon for his use on the premises. Instead, the Gun Shop allegedly sold Logsdon ammunition and/or magazines for his use at a future time, at some other location. The Gun Shop's conduct was not analogous to the sale of liquor "for consumption on the premises." Dram-shop liability is imposed in circumstances in which a tavern operator has an opportunity to observe a patron's behavior, including their liquor consumption, and can refuse to serve the patron, or take other action, if the patron shows signs of intoxication. A tavern owner maintains significant oversight and control over patrons' use of the liquor the tavern owner sells. The Gun Shop had no similar opportunity to observe or control Logsdon's actions.

If anything, the Gun Shop is in a comparable position to the seller of packaged liquor, sold for consumption off the seller's premises. Like packaged liquor, the products the Gun Shop sold to Logsdon could be used at a time and location, and in a manner, of Logsdon's choosing, with no input from, or oversight by, the Gun Shop. Notably, despite the recognition of dram-shop liability in certain circumstances, to our knowledge Missouri has never imposed liability on packaged liquor sellers for the actions taken by persons who become intoxicated by consuming the purchased liquor away from the seller's premises.6

In Snodgras v. Martin & Bayley, Inc., 204 S.W.3d 638 (Mo. banc 2006), the Missouri Supreme Court held that the dram-shop statute's denial of a cause of action against sellers of packaged liquor, while permitting a cause of action against purveyors of liquor by the drink, did not violate equal protection. Snodgras explains that the legislature could rationally distinguish between sellers of liquor-by-the-drink and sellers of packaged liquor:

Id. at 641 (citation omitted).

We recognize that Snodgras addressed a fundamentally different issue than the one we face here. Nevertheless, it points up the significant distinctions between sellers of products which are used in the seller's presence, and sellers of products which are intended for use off-premises. Snodgras confirms that Appellants cannot rely on the principles underlying the dram-shop liability statute to seek to impose liability on the Gun Shop in the very different circumstances of this case. Moreover, the fact that Missouri courts have refused to impose liability on packaged-liquor sellers reinforces the fact that, as a general proposition, liability is not imposed on sellers of non-defective, lawful products, for injuries caused by the misuse of those products by the purchaser or other persons. Our independent research has not discovered a single Missouri case in which liability was imposed on the retail seller of a non-defective lawful product, for injuries resulting from the misuse of that product away from the seller's establishment.7

At oral argument, Appellants contended that the ammunition and/or magazines the Gun Shop sold were designed solely to cause significant human injuries; if that were true, the articles the Gun Shop sold could arguably be considered defective in their intended use. We must respectfully disagree with Appellants' characterization, however. Although firearms are plainly susceptible to unlawful use which can cause severe injuries (as this case tragically illustrates), the sale of firearms and related products is legal, and those products are capable of being safely used for many lawful purposes, including security and self-defense, as well as in various sporting and recreational activities. The Gun Shop did not sell Logsdon an unlawful or defective product or products.

We sympathize with Appellants' loss of their children, who were the innocent victims of a brutal murderer. We are nevertheless constrained to hold that, under current Missouri law, Appellants cannot state a cause of action against the Gun Shop based on its sale of non-defective, legal ammunition and/or magazines, for injuries caused by David Logsdon's senseless and unlawful actions. Therefore, even though their claims may not have been precluded by the Protection of Lawful Commerce in Arms Act, Appellants have failed to allege a viable cause of action under Missouri law. The circuit court did not err in dismissing their claims.

Conclusion

The circuit court's judgments are affirmed.

All concur.