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Perez v. Lopez3/7/2002
This is a double appeal from a wrongful death and survival action arising from the death of Appellant's minor son, Alberto Perez, Jr. At trial, Appellant alleged that Appellees, owners of ABC Lock and Key Company, were negligent in picking the locked trigger lock on a bolt action 30.06 rifle, at the minor's request, without parental permission, consent or knowledge, and then returning the operational rifle to the minor who used it to commit suicide. For the reasons stated, we reverse the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
Alberto Perez, Jr. ("Albert"), a minor, contacted Appellees/Cross-Appellants, Albert Lopez and Rachel Lopez, owners of ABC Lock and Key Company in El Paso, Texas, and asked if they could make a new key for the trigger lock on a rifle because he did not have a key to the lock. Rachel told him that she could not make a new key, but that she could pick the lock for him if he brought the unloaded rifle to her shop and had proper identification. Albert took the unloaded rifle and his driver's license to Appellees' store. Rachel and Albert were "joking around" about what he intended to do with the gun. She asked, "You're not going to go out there and rob anybody?" Albert responded, "No, I just want to go hunting." Rachel stated that Albert started laughing after the exchange.
Albert Lopez, co-owner of ABC Lock and Key, knew that Albert was not eighteen, so he called his home to verify that he was in proper possession of the weapon. No one answered, no answering machine picked up the call, and he was never able to verify whether Albert was in proper possession of the rifle. Nevertheless, Rachel picked the lock after her husband instructed her to do so and returned the rifle to the minor after the $4 fee was paid.
The record shows that Appellant discovered the rifle (which belonged to his older son) in his house about a week before the suicide. Nonetheless, Appellant did not remove the newly discovered rifle or otherwise secure it from access by his minor son, Albert, Jr. On the day of the suicide, he took the rifle to work with him because several co-workers were interested in purchasing it. He discovered that the trigger lock had been removed. Appellant took the rifle home after his supervisor told him that he could not leave it at work. He returned it under the bed where he had found it, although he knew his minor son would be visiting his house that same day. Later that day, the minor took the rifle and committed suicide.
Appellant brought a negligence action against Appellees and sought damages for mental anguish and loss of companionship. The jury returned a verdict finding that both Appellees and Appellant were negligent and that their negligence was a proximate cause of Albert's death. The jury allocated percentages of responsibility as follows: Albert Lopez, thirty-four percent (34%), Rachel Lopez, thirty-three percent (33%), and Alberto, Sr., thirty-three percent (33%). The jury found no damages for Alberto, Sr.'s past or future loss of companionship and no damages for his past or future mental anguish. The jury failed to find Appellees grossly negligent as well. The jury awarded the estate of Alberto, Jr., $5,000 for funeral and burial expenses. Appellees filed a Motion to Disregard the Jury Answers and Enter Judgment Notwithstanding the Verdict, which was overruled by order of the trial court. Appellant filed his Motion for New Trial, which was overruled by operation of law. Both parties bring issues on appeal.
II. DISCUSSION
Appellant brings four issues and Appellees bring one cross-issue. We address them in turn below.
A. Factual Insufficiency
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