Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. David G. Vander Wall, Judge, Super. Ct. No. 370646
Law Office of John K. Ormond and John K. Ormond, for Plaintiffs and Appellants.
McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers, Lisa R. Roberts, Gary A. Watt, and Christopher T. Lustig for Defendant and Respondent.
OPINION
Wiseman, J.
Max Birchfield died after a handgun he was holding discharged, apparently accidently, and shot him in the chest. This happened in the bedroom of Leandra Sweatt, Max’s girlfriend, who had been given or lent the gun by her father, Charles Sweatt, to use for self-defense. When he gave Leandra the gun, Charles knew it had a hair trigger—it could be fired with substantially less pressure on the trigger than an average gun of its type. The trial court granted Charles’s motion for summary judgment in this wrongful-death action brought by Max’s survivors. It concluded that Charles had no duty of care to Max. We agree. Under the particular circumstances of this case, the balance of factors we must consider under Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) does not support the imposition of a duty to a third party.
One of the disputed issues is whether the shooting was accidental or a suicide. Since we are called upon to review a summary judgment, we assume for purposes of this appeal only, that the shooting was accidental.
FACTUAL AND PROCEDURAL HISTORIES
The gun was a single-action .22-caliber revolver, which Charles Sweatt bought in 1969 or 1970. Charles’s daughter, Leandra, was divorced in 2000 and afterward began experiencing frightening incidents at her house, including mysterious knocks on the door. After these incidents, Charles gave the gun to Leandra for her protection.
By his own admission, Charles knew the gun had a hair trigger when he gave it to Leandra. According to the plaintiffs’ expert, application to the trigger of less than one pound of pressure—less than 16 ounces—was sufficient to fire the gun. This is only slightly more than the 10 to 15 ounces needed to operate an average retractable ball-point pen. The normal range of trigger pull weights for similar single-action revolvers is two to three pounds, according to the expert. When telling a police officer about the hair trigger, Charles described an incident in which he performed a “quick draw” maneuver which resulted in a shot being fired at the ground a short distance from his feet. At his deposition, Charles refused to answer a specific question about this incident and stated generally that he had never experienced an accidental discharge. Charles also told a police officer that when he gave Leandra the gun, he told her not to cock it until she was ready to fire, since it would probably go off once cocked because of the hair trigger. At his deposition, Charles refused to confirm or deny that he made this statement.
Max Birchfield was a veteran who served in the army in Afghanistan. While in the army, he received training as a sniper and engaged in active ground combat, attaining the rank of sergeant before completing his service.
Leandra placed a 911 call from her house in Ceres on April 13, 2004. The transcript of the call includes the following statements:
“911 OPERATOR: Where is the gun at? Where is the gun at?
“MEDICAL PERSON: What happened? [¶] … [¶] [D]id he—he just shot himself?
“MEDICAL PERSON: And was it intentional?
“MEDICAL PERSON: And he was cleaning?
“MEDICAL PERSON: Okay.
“MEDICAL PERSON: Go unlock the door if it’s locked, okay?
“MEDICAL PERSON: That’s okay .…”
According to a police report, Leandra told an officer that she and Max had been “joking around” in the bedroom where she kept the gun on the headboard. Max was sitting on the bed while Leandra was dusting. While her back was turned, she heard the shot. She turned to see Max clutching his chest and the gun lying on the bed. In the same police report, the officer wrote: “When I asked her if they had had an argument prior to the shooting, she wouldn’t give me a straight answer. She said she never would have suspected he would have wanted to shoot himself because he had just been joking with her.” Anne Dirmeyer, Max’s mother, testified at a deposition that Leandra gave her this account while they were at the hospital after the shooting: “Max told her that breaking up with her was like being shot in the heart. And when he had said that, he had the gun pointed at his heart, and the gun went off.” Leandra showed a police officer the words “I love you” written in lipstick on the bathroom mirror. She said Max had written it.
When police and ambulance personnel arrived at Leandra’s house, Max was lying on his back on the floor; there was a burn mark on his shirt in the center of his chest. He died within minutes of being shot. On the death certificate, the coroner reported the manner of death as suicide.
John Birchfield and Rachael Giorlando, Max’s father and sister, filed a wrongful death complaint in superior court. Anne Dirmeyer later became a plaintiff also. The complaint alleged general negligence and named as defendants Charles and Leandra Sweatt and the City of Ceres. It stated:
The City of Ceres is not a party to the appeal.
After being sued, Charles and Leandra invoked their Fifth Amendment privilege against self-incrimination, refusing at their depositions to answer questions about the gun or the shooting. The parties settled the case against Leandra.
Charles moved for summary judgment. He conceded he knew the gun had a hair trigger when he gave it to Leandra. He argued, however, that he had no duty of care to Max, that plaintiffs could not prove he was negligent in giving the gun to Leandra, and that they could not prove his conduct caused the accident. Plaintiffs contended that the injury to Max was foreseeable and was within the scope of Charles’s duty; that the evidence of the gun’s dangerousness showed it was negligent to give it away to one intending to use it; and that the 911 tape pointed to accidental discharge, attributable to Charles’s negligence in giving away the dangerous gun, as the cause.
In granting the motion, the trial court addressed only the duty element of the tort. It stated:
Wise v. Superior Court Rowland , supraDISCUSSION
Like this case, Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465 involved a trial court’s no-duty finding at the summary judgment stage. The Supreme Court summarized the applicable law on both summary judgment and the duty element of negligence:
Artiglio v. Corning Inc. o Aguilar v. Atlantic Richfield Co.“To prevail on their negligence claim, plaintiffs must show that [defendant] owed them a legal duty, that it breached the duty, and that the breach was a proximate or legal cause of their injuries. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 [91 Cal.Rptr.2d 35, 989 P.2d 121].).…
Hoff v. Vacaville Unified School Dist.“The existence and scope of duty are legal questions for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].) In determining those questions, we ‘begin always with the command of … section 1714, subdivision (a): “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person .…”’ (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885 [2 Cal.Rptr.2d 79, 820 P.2d 181].) There are, however, exceptions to this rule. Some are established by the Legislature through enactment of statutes. Others are judicially established where ‘clearly supported by public policy. [Citations.]’ (Rowland [, supra, ]69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] .…) Before judicially establishing an exception based on public policy, courts consider a variety of factors; ‘the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]’ (Id. at p. 113.)” (Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 476-477.)
We agree with the trial court’s conclusion that Charles had no duty of care to Max, but not for the reasons the trial court gave. The trial court was incorrect to conclude that the injury to Max was not reasonably foreseeable. Based on what it described as the undisputed fact that Leandra had been warned about the hair trigger, the court asserted that Charles could not reasonably foresee Leandra’s negligence or “fail[ure] to take the necessary precautions” in keeping the gun in an accessible location. As a preliminary matter, it is not clear that the facts that Leandra was warned or was negligent are undisputed. These propositions were not in either party’s statement of undisputed facts. Defendants’ statement of undisputed facts includes the proposition that “[p]laintiffs allege that Leandra left the pistol in a place where it was accessible to others and in a fully loaded condition,” and plaintiffs agreed, but this establishes neither a warning nor negligence. Charles refused to confirm at his deposition that he warned Leandra. Plaintiffs argue in their appellate briefs that they dispute this and that the trial court was wrong to treat it as undisputed. What is more, even assuming Leandra was warned and left the gun in an accessible place, it is not obvious that she was negligent in doing this in a room frequented by herself and a former army sniper. On the other hand, plaintiffs have sued Leandra for negligence, so their contention now may put them in the position of disputing a fact admitted in their own pleadings.
Even if Leandra was negligent, this did not render an accidental shooting unforeseeable. That a person may act negligently is often foreseeable, and the law often imposes a duty to take others’ foreseeable negligence into account. As a general principle, it is well established that another person’s intervening foreseeable negligence does not, in itself, cut off a negligent actor’s liability.
Further, the reasonably foreseeable negligence of another does not implicate the general rule under the common law that “one person owed no duty to control the conduct of another .…” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435.) The question here is not whether Charles had a duty independent of his own conduct to do something that would make Leandra behave more carefully. We would be presented with that case if, for instance, Leandra had acquired a hair-trigger gun from some other source and Charles happened to know about it. As it is, the question is whether Charles had a duty to behave differently when he gave Leandra the gun—perhaps by not giving it to her or by giving her an adequate warning. The trial court neglected this difference between failing to control another and failing to use due care in one’s own conduct when it cited Wise v. Superior Court, supra, 222 Cal.App.3d 1008. That case involved a claim that a freeway sniper’s wife was liable to his victims because she knew he was mentally unstable yet did not obstruct his access to guns they had in their house. (Id. at pp. 1011-1012.) The Court of Appeal held that the wife had no duty to the victims. (Id. at p. 1016.) That case was about the absence of a duty to control the behavior of another, but this case is not. For all these reasons, the trial court’s view that Leandra’s negligence (if any) made the accident unforeseeable and cut off Charles’s duty was mistaken.
Reasonable foreseeability alone does not impose a duty, however. Foreseeability is only one factor in determining the scope of a defendant’s duty of care (Rowland, supra, 69 Cal.2d at p. 113), albeit the most important one (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 434). As mentioned, others include “the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, supra, at p. 113.)
The key to the problem presented here, as we see it, is to decide whether the type of scenario at issue is dangerous or risky enough to warrant imposing a duty on the donor to third parties foreseeably injured by accidental discharges. To use the terms employed by the Supreme Court, we must balance “the policy of preventing future harm” against “the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care .…” (Rowland, supra, 69 Cal.2d at p. 113.) Also important in this case is “the closeness of the connection between the defendant’s conduct and the injury suffered .…” (Ibid.)
We will begin by assuming some outer boundaries for the sake of argument. We will take it as given that the donor of a well-maintained, properly functioning handgun with an average trigger pull weight has no duty of care to persons injured by accidental discharges occurring after the gun passes out of the donor’s control, so long as the donee is competent. On the other hand, we will assume for the sake of argument that if a donor of a gun knows it is defective and has a tendency to blow up in the user’s hand, causing injury, then he has a duty of care to persons foreseeably injured.
The hair-trigger gun at issue here is somewhere between these outer boundaries. According to plaintiffs’ expert, the trigger pressure necessary to fire the gun was less than one pound, which was less than half of the pressure typically required for guns of its type. In addition to saying, as we have noted, that this was similar to the amount of pressure needed to click a ball-point pen, the expert also opined as follows:
Cases from other jurisdictions dealing with accidental discharges allegedly caused by light trigger pull weights can also help give an idea of how dangerous the hair trigger here was. In DeRosa v. Remington Arms Co., Inc. (E.D.N.Y. 1981) 509 F.Supp. 762, a products liability case, Judge Weinstein ruled that a police shotgun with a trigger pull weight of four and a half pounds, which was within the industry guideline of three and three-quarters pounds to six and a half pounds, was not unreasonably dangerous. (Id. at pp. 764, 768.) By contrast, in Hines v. Remington Arms Co., Inc. (La.App. 1993) 630 So.2d 809, reversed in part on other grounds in Hines v. Remington Arms Co., Inc. (La. 1994) 648 So.2d 331, another products liability case, the court held that a competition target-shooting rifle with a two-ounce trigger pull weight was unreasonably dangerous per se. (Hines v. Remington Arms. Co., Inc., supra, 630 So.2d at pp. 813, 814.)
All this, of course, provides only a rough approximation of how dangerous the gun was and leaves us with a judgment to make. Helpful for this purpose is the series of California cases dealing with when a vehicle owner who leaves the keys in the ignition has a duty to third parties injured by negligent operation by a thief or other unauthorized person who uses the vehicle. These cases provide a scale of degrees of dangerousness against which we can measure our case by analogy.
In Richards v. Stanley (1954) 43 Cal.2d 60, an owner parked her car on a street in downtown San Francisco, leaving the keys in the ignition. A thief stole the car and drove it negligently, causing an accident near Potrero Hill. The accident victims sued the owner, alleging negligence. The trial court granted the owner’s motion for nonsuit. (Id. at pp. 61-62.) The Supreme Court affirmed, treating this as the type of situation in which the risk created by the defendant’s conduct was not great enough to support imposing a duty on her to take care to avoid harm arising from another person’s intervening negligence:
Richards v. Stanley, supraIn other words, given the relatively low level of risk involved in the defendant’s conduct, extending the defendant’s duty of care to injured third parties was not justified.
Hergenrether v. East (1964) 61 Cal.2d 440 presented a situation that was similar to the one in Richards, but incrementally more dangerous. Employees of a building contractor finished their work for the day and drove their employer’s two-ton truck to the skid row area of Redding, where they had been directed for inexpensive food and lodgings. The truck contained costly construction equipment, some guns, and a barrel of gasoline. The employees parked it on the street on skid row, unlocked and with the keys in the ignition, then had dinner and checked in to a hotel. At one o’clock the following morning, a thief drove the truck across the center line of Highway 99 and collided head-on with the plaintiffs’ car. (Id. at pp. 441-442.) The Supreme Court held that the defendant owners had a duty of care to the accident victims and reversed a judgment notwithstanding the verdict that had been entered in the defendants’ favor. The court distinguished Richards:
Richards Hergenrether v. East, supra,The crucial idea here is that the truck-on-skid-row situation presents a greater level of danger or risk than the ordinary-car-on-an-ordinary-street scenario. The negligent act of leaving the key in the ignition and the final outcome of an accident caused by a thief’s negligent driving were similar to the facts in Richards, but the greater degree of danger presented by the other circumstances justified the imposition of a duty of care.
The case in this group involving the highest risk level is Richardson v. Ham (1955) 44 Cal.2d 772, which was decided soon after Richards and established the specially dangerous-circumstances approach later applied in Hergenrether. In Richardson, a construction firm was building a subdivision on top of a mesa in San Diego County. Its equipment included two 26-ton bulldozers. These did not start with keys. One of them had an improvised locking device on the starter mechanism. The other had no lock, and drunken joyriders started it up one night and drove it around the mesa. When they were through, they could not make the bulldozer stop, so they pointed it at a canyon and left. The unmanned bulldozer drove off the mesa and across a freeway and continued for about a mile, destroying a house, damaging a car and a trailer, and injuring a number of people before it came to a stop. (Richardson v. Ham, supra, at pp. 774-775.) After a verdict for the defendant owners, the trial court granted the plaintiffs a new trial. (Id. at p. 775.) The Supreme Court affirmed, rejecting the claim that Richards meant the bulldozer owners had no duty of care to those injured by the bulldozer. (Richardson v. Ham, supra, at p. 775.) The risk to unknown third parties arising from leaving the bulldozer’s starter unlocked was much greater than the risk of leaving the keys in a car’s ignition on a city street. “The extreme danger created by a bulldozer in uncontrolled motion and the foreseeable risk of intermeddling fully justify imposing a duty on the owner to exercise reasonable care to protect third parties from injuries arising from its operation by intermeddlers.” (Id. at p. 776.)
Three considerations persuade us that the balance of the Rowland factors in this case is closer to that in Richards than that in Hergenrether or Richardson. First, although it was undisputed that the gun had a hair trigger, the evidence showed that this meant its trigger pull weight was perhaps a third or a half of the average for guns of its type. It was not a featherweight trigger pull like the two-ounce pull on the exotic competition rifle we mentioned earlier. With respect to “the policy of preventing future harm” (Rowland, supra, 69 Cal.2d at p. 113), this places the present situation closer to that of an ordinary car parked on an ordinary street with the key in the ignition than a two-ton truck parked overnight on skid row with the key in the ignition, or an unlocked 26-ton bulldozer left unattended on a mesa.
Second, the imposition of a duty here would have burdensome implications for many lawful transactions. For instance, it could imply that gun dealers have unrecognized duties—duties, perhaps, to ascertain the trigger pull weight of each gun sold; to isolate guns with trigger pull weights below some still-to-be-determined threshold; to inquire about whether prospective buyers intend to use, store, or display their purchases; and to issue warnings for the light-trigger guns, warnings tailored to each buyer’s intended use. These implications bear upon the “consequences to the community of imposing a duty to exercise care with resulting liability for breach .…” (Rowland, supra, 69 Cal.2d at p. 113.)
Third, the causal links between Charles’s conduct and Max’s death are attenuated. Assuming the gun was not fired intentionally (a circumstance that would defeat Charles’s liability in any event), the shooting resulted from an improbable chain of events. While in his girlfriend’s bedroom, a weapons-trained veteran found himself with a loaded and cocked revolver pointed at his chest at point-blank range when something caused it to discharge. As we have said, this did not render the accident unforeseeable, for the foreseeability analysis does not require foreseeability of a particular individual plaintiff or the precise details of a particular accident. It is, however, relevant to “the closeness of the connection between the defendant’s conduct and the injury suffered” and therefore to the duty analysis under Rowland. (Rowland, supra, 69 Cal.2d at p. 113.) In other words, though the accident was reasonably foreseeable, Charles’s connection with it was not close, and Rowland tells us that this weighs against finding a duty.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
WE CONCUR: Harris, Acting P.J., Kane, J.