This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
An out-of-court settlement has canceled a second trial over a Park City couple's allegations that Kmart illegally sold a shotgun to their schizophrenic son, who used it to commit suicide.
The trial was slated to begin Monday before U.S. District Judge Ted Stewart in Salt Lake City. The judge had thrown out a $3 million judgment awarded to Philip and Sandra Eslinger after ruling that juror deliberations in the first trial had been tainted.
Philip Eslinger was in Alaska on Friday and could not be reached for comment on the sealed agreement. His wife has died.
The Eslingers had claimed Kmart was negligent in selling a 12-gauge shotgun in 1996 to their son, Ryan, who used the firearm the same day to kill his pet dog and then himself. The couple said store employees failed to require proper identification and should not have sold a firearm to a mentally ill person. Kmart attorneys responded that the employees did nothing wrong, including accepting a passport for identification.
The case went to trial in 2001 and the jury unanimously decided that Kmart was negligent, awarding $1.5 million in general damages and $1.5 million in punitive damages.
That verdict was overturned last year at the request of the Troy, Mich.-based Kmart, which said a juror had found two stories on the Internet about a $12.5 million verdict against the corporation for selling a gun in Florida to an intoxicated man who shot and paralyzed his girlfriend with it. The juror tainted the discussion by telling his peers that he knew something about the retailer that would persuade them to grant the Eslinger family large punitive damages, Kmart attorneys claimed.
- Pamela Manson